Nancy Grover

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

Regulatory Trends

Beware: Increased OSHA Enforcement Ahead

Experts explain what changes employers can expect from OSHA in the near future.
By: | May 2, 2016 • 10 min read
Inspecting

Higher penalties, threats to traditional safety incentive programs, and changes to when — or if — post-accident drug testing is allowed are possible changes coming from the Occupational Safety and Health Administration this year, according to two industry experts.

The landscape is increasingly turning into more of a “gotcha” mentality, they suggested, meaning employers need to be especially vigilant about crossing their T’s and dotting their I’s when it comes to issues involving the agency.

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During a recent webinar, the two revealed some of the sobering new realities and offered suggestions for employers. Among the issues discussed is what they say is OSHA’s increased publicizing of employers that are fined by the agency for violations.

“The one thing that really sticks in everybody’s craw is the press releases,” said Susan Wiltsie, an attorney with Hunton & Williams. “It used to be they’d just put out press releases for fatalities or huge penalties, or when they are big deals. Now, they do it in more than that. I had an ergonomics settlement where the fines were less than $10,000, and we got a press release.”

The Occupational Safety and Health Administration’s increasing use of press releases is part of what many experts have said is a plan to embarrass and give incentives to employers to maintain safer workplaces.

Instead of issuing press releases for violations amounting to $50,000 as was done in the past, they are now being issued for smaller violations. Employers penalized by OSHA may want to do whatever is necessary to avoid the negative publicity.

“My message to clients is, ‘it’s not yet in the news here; let’s try to do the right thing,’” said Don Enke, director of risk control services at Safety National. “The thing that sticks out to me is, regulation by shaming and press releases, which I just think is a terrible way to enforce.”

Fines Increasing

The agency will likely be issuing many more press releases later this year since fines will soon be increasing.

As of August, employers will likely see higher penalties for Occupational Safety and Health Administration violations. Legislation signed by President Obama allows the agency to increase its fines for the first time in years.

The Occupational Safety and Health Administration’s increasing use of press releases is part of what many experts have said is a plan to embarrass and give incentives to employers to maintain safer workplaces.

According to the speakers, OSHA was one, if not the only, agency that was exempt from increasing its fines for most of the last two decades.

The new legislation allows OSHA to make a one-time catchup assessment reflecting inflation from the period 1990 to 2015, as well as annual increases based on inflation. The cap, according to the speakers, is $150,000.

“You could be looking at fines increasing anywhere between 75 to 80 percent beginning this fall,” Enke said. “So when you do the math, a ‘willful’ or a ‘repeat’ violation that typically carries a maximum penalty of $70,000 could be $120,000. A ‘serious’ or other than serious violation that typically carries a maximum $7,000 penalty may be closer to $12,500 to $13,000.”

Wiltsie and Enke discussed a variety of OSHA-related topics during a recent Out Front Ideas with Kimberly George and Mark Walls webinar, sponsored by Sedgwick and Safety National.

Safety Incentive Programs

Many employers are confused about what is now acceptable to OSHA in terms of safety incentive programs. As the speakers explained, there is no hard and fast rule saying an employer may or may not have such a program, which have been used for many years.

“Really, the debate is whether or not OSHA feels like it’s aligned with their view of what an effective safety incentive program is,” Enke said. “I think what OSHA is looking for is, ‘does your program have characteristics that would compromise safety, discourage reporting a claim, or even delay reporting a claim?’ They definitely don’t want anything delaying reporting. And they don’t want anybody retaliated against if they report a claim.”

Traditional safety incentive programs often reward employees for having a certain number of days without any injuries. However, that could discourage employees or their supervisors from reporting an injury, a concern for OSHA.

“What I’m seeing in the workplace with various clients is more of a progressive program of leading indicators vs. lagging indicators,” Enke said. “It’s recognizing employees for various proactive safety behaviors. That is where I’m seeing more progressive programs or employers moving in that direction, where it’s part of their safety culture.

“They’re getting employee buy-in and ownership, and they’re making employees part of the program where they are involved with hazard indications, reporting near misses, reporting unsafe conditions, even involved with audits, training programs — even taking online training courses.”

The concern about safety incentive programs was heightened recently when OSHA sought public comments during the rulemaking for a separate issue. The proposed rule in question would require employers to report their OSHA recordable injuries for publication.

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“That rule, when it went for public comment was a proposed rule that would require employers with more than 250 employees to do quarterly reporting of their recordables to OSHA and smaller employers to do it annually,” Wiltsie said. “But what OSHA did in a nasty, sneaky way was to extend the comment period to ask for comments about incentive programs. … This sneak proposed rule about incentive programs and OSHA retaliation also is likely to include some pretty nasty stuff about drug testing.”

Drug Testing

There have been some estimates that up to one-third of workplace accidents involve workers impaired by drugs and/or alcohol. But Wiltsie said OSHA wants to discourage post-accident drug testing because it could cause impaired employees to delay reporting their accidents.

“You think?” she said. “Of course they are not going to report their accident if it resulted from their drug and alcohol use until they’ve sobered up. That’s the whole reason why employers need these policies requiring immediate reporting so they can test the employee before they’ve sobered up and find out whether drugs or alcohol contributed to the accident and of course put that person into the comp system so they can get the medical coverage they need through comp; and, finally, because we’re all good guys not bad guys, to fix whatever the safety issue was if there is a safety issue that contributed.”

“Do we really want OSHA deciding what is and isn’t acceptable entertainment in this country? Look at what else they could go after — horse racing, NASCAR, the NFL. All that’s now fair game. It shows how controversial OSHA’s approach has gotten.” — Susan Wiltsie, attorney Hunton & Williams

Wiltsie believes OSHA wants post-accident drug and alcohol testing allowed only if it meets the definition of “reasonable suspicion” that the worker was impaired. She questions what is supposed to happen if there were no managerial witnesses to an accident or someone with reasonable suspicion training.

“You know OSHA’s going to be all over that and consistent with these days with OSHA, what the employee says is deemed to be true and what the management says is deemed to be false,” Wiltsie said.

“So if management says there’s reasonable suspicion and the employee says ‘oh, but I didn’t have anything to drink, I’m not high, I didn’t take any prescription drugs that weren’t my prescription,’ they are going to believe the employee. So this is going to be a hot mess.”

General Duty Clause

OSHA’s use of the general duty clause to penalize employers is another concern among employers. The general duty clause requires employers to provide a workplace that is free from recognizable hazards causing or likely to cause harm to employees.

Although a fundamental part of the OSHA Act, the general duty clause has become “extraordinarily controversial” in the last few years, Wiltsie said. “The case that got everybody’s attention was the Seaworld case. For the first time, OSHA was using the general duty clause to address areas of what we look at as entertainment. They are not statutorily prohibited from doing that, but it was new terrain.

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“This year, there are no more orca shows at Seaworld. Do we really want OSHA deciding what is and isn’t acceptable entertainment in this country? Look at what else they could go after — horse racing, NASCAR, the NFL. All that’s now fair game. It shows how controversial OSHA’s approach has gotten.”

According to Wiltsie, ergonomics and workplace violence are also areas where OSHA is using the general duty clause to fine employers. “Oh my goodness, prisons and health care centers, particularly mental health facilities. OSHA is hammering them under the general duty clause because they can’t control people who are otherwise predisposed either because they are felons or they have significant mental health issues that make them have a tendency to violence,” she said.

“How on Earth is a psychiatrist or a prison guard supposed to control that, and yet OSHA’s making that the employer’s responsibility.”

A third category of “extreme controversy” is chemical exposure limits. “On the regulatory horizon is a very innocuous sounding pre-rule called the ‘revocation of obsolete health,’” Wiltsie said.

“What OSHA wants to do through that rulemaking is to eliminate Permissible Exposure Limits that are currently OSHA standards; just completely strike them out so they can use the general duty clause to enforce PELs of chemicals that they want to use, not the ones that the law currently requires. That’s going to be a big deal.”

Joint Employment

Employment situations in which more than one company is involved can be tricky in terms of determining who is responsible for an employee’s health and safety. The millions of temporary workers is a prime example.

“From my standpoint, OSHA’s view is both the host employer and the staffing agencies bear joint responsibility for compliance, safety training, health and safety. When it comes to regulatory requirements, they both bear responsibility,” Enke said.

“We’re seeing citations where both employers and the agencies are negligent. For employers, they can be cited for violations whether under multi-employer enforcement policies or jointly for different violations.”

Enke related an incident in which both a host employer and temporary agency were fined for failing to implement a hearing conservation program. “A shocker to me,” he said. “That gets me thinking about contract employees. What are the specifics around that?”

“OSHA is trying to be transparent,” Wiltsie said. “What they are trying to accomplish is to cite everybody; make every employer who’s in a given workplace take responsibility for the safety of that overall workplace. I think practically it’s unfeasible.”

The speakers suggested employers make sure their contract language with temporary agencies is clear in terms of which organization has responsibility for which issues. By working things out on the front end, employers may avoid OSHA citations later on.

“My rule of thumb is to treat temp workers no differently than staff employees,” Enke said. “Whether those temp workers are used for 60 or 90 days, don’t treat them any differently. That includes medical surveillance, safety orientation training, personal protection equipment, etc. That’d be my recommendation. I’d be hard-pressed to treat them any differently, given what OSHA is doing.”

Additional Solutions

“Shore up your safety programs,” Enke advised. “In this environment with OSHA, they are looking for every opportunity to sink their teeth into you from a violations standpoint. Be diligent, look for gaps in your program, correct them. Don’t be lax. And by all means, if you’ve been hit with a prior violation, do what you can to prevent a recurrence.”

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Taking shortcuts and failing to cross your T’s are red flags to OSHA, Enke suggested. “When you look at the press releases, some of the violations were easily corrected.”

Both speakers also recommend contacting the local OSHA office to get a pulse of the type of enforcement being emphasized locally. “Your best chance of getting penalties back down is informal. Federal OSHA policies are 100 percent against you. Local may not be,” Wiltsie said.

“Go into that with hat in hand when appropriate or guns blazing when appropriate. Be fair and accurate about when you screwed up, and use it as an opportunity to develop a relationship with the local OSHA office. Making a good impression for good cooperative relations gets you in less trouble down the road.”

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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The Aging Workforce

Older Workers at Risk Behind the Wheel

Employers should be aware of how the effects of aging can increase risks for older drivers in the workplace.
By: | May 2, 2016 • 5 min read
Topics: Safety | Workers' Comp
Focus on work at the factory

Older workers have twice the risk of dying in a work-related motor vehicle crash than younger workers, according to data from the Bureau of Labor Statistics. One reason may be that older people are more likely to be injured in a crash and more likely to die if they are injured, the government speculates.

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Age-related physical and mental changes can affect driving ability among older workers. Employers need to be aware of the changes and work with their employees to develop safety and health programs that consider older drivers’ needs.

“Although illnesses and other health problems can interfere with driving ability, the effect of many conditions on driving can be reduced or resolved with treatment,” according to the National Institute for Occupational Safety and Health. “The safety of older drivers in the workplace is a shared responsibility of employers and their employees. Forward-thinking safety programs, reasonable accommodations, and open lines of communication between employers and workers can help protect valued older employees from death or disability due to roadway crashes.”

By 2020, 25 percent of the workforce will be at least 55 years of age, according to NIOSH. The agency has created materials, including a new fact sheet to help employers keep their older drivers safe.

The Effects of Aging

As the body changes, many factors can affect driving ability. Employers should be aware of the changes and develop strategies to ensure their older drivers stay safe.

The National Institute for Occupational Health and Safety cites the following changes:

Eyes. Diminished eyesight and the need for more light can affect driving ability in some people. Older workers affected may find it especially difficult to drive at dawn, dusk, and at night. Cataracts and macular degeneration may make it harder to read signs and see colors.

Diseases. Diabetes can make blood sugar levels too high or low, which can lead to drowsiness, dizziness, confusion, loss of consciousness, or seizures. Arthritis may cause stiff joints, limiting movement of shoulders, hands, head, and neck and making it difficult to grasp the steering wheel or apply brake and gas pedals. And sleep apnea can increase the risk of drowsy driving. Medications can interfere with sleep quality, also increasing the risk for drowsiness.

Motor skills. As they decline with age, it can become more difficult to have the strength to step on the brake or gas pedal. A decrease in flexibility makes it harder to see all angles of the car. A lack of coordination can make it more difficult for the upper and lower body to work together while simultaneously braking and turning.

Mental abilities. Attention span, memory, judgment, and the ability to make decisions and react quickly may be affected. Older drivers may feel overwhelmed by signs, signals, pedestrians, and vehicles around them.

Grave Consequences

“Roadway crashes are the leading cause of occupational fatalities for older workers in the U.S.,” according to NIOSH. “Motor vehicle crashes account for 32 percent of all work-related deaths among workers age 55 or older.”

Nearly 3,200 workers over 55 were killed in motor vehicle crashes on public highways between 1992 and 2002. Death rates for work-related roadway accidents increase steadily beginning around age 55.

“A 61-year-old motor coach driver and six passengers were killed when a bus left the roadway around 4 a.m. and entered an emergency parking area striking a parked tractor-trailer and pushing it into a second tractor-trailer,” NIOSH recounted. “An off-duty police officer reported seeing the bus drift within its travel lane a few minutes before the crash. Investigators concluded that fatigue due to an irregular work-rest schedule and a sedating antihistamine were major contributors to the crash.”

The accident on the Pennsylvania Turnpike in June 1998 points up some of the issues that can arise with older drivers. Reduced vision, slower reaction times, declines in cognitive functioning, and chronic health conditions can affect a person’s driving ability (see box).

Older workers are particularly more likely than other drivers to have accidents at intersections, especially when turning left, and when they are merging or changing lanes on a highway. Among the suggestions to prevent older workers from having accidents is to make sure they use caution at intersections, especially when turning left, and to avoid cutting between approaching vehicles when they do.

Preventative Measures

Employers are advised to use prevention strategies to protect their older drivers while workers should learn to maintain their driving ability and safe driving habits as they age. A key member of management should be responsible for setting and enforcing a comprehensive driver safety policy, NIOSH suggests.

Trained health professionals can assess driving ability. Any restrictions on driving should be based on that assessment rather than on a person’s general health status or an “arbitrary” age limit, NIOSH advises.

Refresher driver training should be offered throughout the organization with older workers encouraged to attend. Also, employers should keep complete and accurate records of workers’ driving performances.

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Overall health and safety can also reduce the likelihood of older workers having motor vehicle crashes. Employers can promote health and safety of all their workers through programs that target exercise, diet, and smoking cessation.

Among specific suggestions are:

  • Consider whether the work can be done without driving, or set work schedules that allow workers to obey speed limits and follow applicable rules such as hours-of-service regulations.
  • Prevent distracted driving by banning texting and hand-held phone use while driving.
  • Allow workers to take naps of less than 30 minutes or stop in a safe location if they are tired.

Prevent impaired driving by making sure workers understand the possible effects of prescription and over-the-counter medications on their driving. Also, set policies that prohibit driving while the person is under the influence of prescription or over-the-counter medications as well as alcohol and illegal drugs.

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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Pharmacy Cost Control

N.C. Drug Formulary Could Save $9 Million

According to a WCRI study, North Carolina stands to reap huge savings by adopting a Texas-style workers' comp drug formulary.
By: | April 25, 2016 • 2 min read
Pharmacy

If a drug formulary was implemented for injured state employees, North Carolina could potentially see significant savings, says a new study. The state is considering formularies to curb abuse and reduce costs in its workers’ comp systems.

The Massachusetts-based Workers Compensation Research Institute reviewed approximately 14,000 claims with 183,000 prescriptions over a three-year period from January 2012 through December 2014. They applied a drug formulary and developed several scenarios to determine the potential impacts of each.

“Over the three-year period, the state paid approximately $29 million for prescription drugs filled by injured state employees,” the study said, “and there may be potential to save $1.4 million to $8.7 million with adoption of a Texas-like formulary under a range of scenarios.”

The authors found the biggest potential savings would occur if physicians in the state adopted prescribing patterns similar to those in Texas when the formulary was adopted there. Physicians in Texas reduced prescriptions for non-formulary drugs by 70 percent and “infrequently” substituted formulary drugs for them.

“Where physicians [in North Carolina] adjust to a closed formulary in ways that are similar to what we saw with Texas physicians, we estimate large effects of adopting such a formulary,” the report said. “We estimate reductions from 22 -23 percent to 6-7 percent of all prescriptions that are for non-formulary drugs and a 30 percent reduction in total prescription costs or close to $8.7 million over the three-year period.”

“There may be potential to save $1.4 million to $8.7 million with adoption of a Texas-like formulary under a range of scenarios.”

In a second scenario, North Carolina physicians reduced their use of non-formulary drugs but fully substitute formulary drugs from the same drug group. In that case, the estimated reduction in prescription costs was 8 percent to 9 percent.

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In the third scenario, North Carolina physicians reduce the use of non-formulary drugs by just 25 percent but did not often substitute formulary drugs. In that situation, the authors estimate cost reductions of 12 percent.

Finally, the authors considered the possibility that North Carolina physicians reduce their non-formulary drug prescribing by 25 percent but fully substitute them with formulary medications. For that scenario, they estimate the percentage of all prescriptions for non-formulary drugs could decrease from 22-23 percent to 16-17 percent.

Overall, non-formulary drug use accounted for 23 percent of all prescriptions and 39 percent of total prescription costs filled in calendar year 2014 for the state workers. The top 10 most commonly prescribed non-formulary drugs in calendar year 2014 accounted for more than half the costs. Several on the list are long-acting Schedule II opioids of which all are considered non-formulary drugs in Texas.

“This category of medications accounted for 23 percent of non-formulary drug prescriptions and 33-34 percent of non-formulary drug payments across the three years,” the report said. “Thirteen to 15 percent of total prescription drug costs paid for North Carolina state employees were for long-acting opioids between 2012 and 2014. Adoption of a Texas-like formulary may decrease opioid use, particularly for long-acting opioids in the state.”

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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