Tag Archives: occupational safety and health administration

Congress Reins in OSHA on Records

As part of efforts by Congress to overturn various regulations published during the waning days of the Obama administration, the House of Representatives on March 1 passed HJR 83 on a largely party-line vote. The resolution, unlike what we have come to expect in congressional work product, is a model of conciseness:

“That Congress disapproves the rule submitted by the Department of Labor relating to ‘Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness’ (published at 81 Fed. Reg. 91792 (December 19, 2016)), and such rule shall have no force or effect.”

The rule, announced by the Occupational Safety and Health Administration (OSHA), created a continuing obligation to maintain accurate injury and illness records for five years (OSHA 300 Log). The rule also required the accurate filing of Form 301 incident reports throughout the five-year, retention-and-access period if employers do not prepare the report when first required to do so,

HJR83 is a technical way to say that the Dec. 19, 2016 rule will be nullified if the Senate concurs and President Trump signs the legislation. In case there was any doubt, on Feb. 28 the office of the president issued a statement saying, “If this bill were presented to the president in its current form, his advisers would recommend that he sign it into law.”

See also: What Trump Wants to Do on ACA  

When the Senate received HJR 83 on March 2, it immediately introduced SJR 27 to accomplish the same purpose and with identical language.

Critics of the regulation felt that it was a last-hour effort to undo the decision of a panel of the U.S. Court of Appeals for the District of Columbia Circuit in AKM LLC (dba Volks Constructors) v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). In that case, per OSHA’s interpretation, the five-year retention requirement for these injury and illness logs created five years of potential liability for inaccurate record keeping. In other words, there was a continuing duty to maintain the accuracy of the logs. In Volks, however, the court unanimously disagreed with the Department of Labor and decided that there was no such continuing duty. The court held that no citation may be issued after the expiration of six months following the occurrence of any violation, following the general limitation on citations contained in the U.S. Code under the Occupational Safety and Health Act.

OSHA did not challenge the Volks decision. Instead, OSHA pointed to the concurring opinion of Circuit Judge Merrick Garland, who agreed that OSHA’s interpretation was wrong, but because of a lack of regulatory authority and not necessarily a lack of statutory authority. That distinction was enough for the Department of Labor to adopt the challenged regulations, and Garland’s opinion was quoted extensively in the Federal Register by OSHA in support of its actions. Congress, it appears, will be the ultimate arbiter of that issue.

The creation of a continuing duty arguably makes it easier to prove that record keeping violations were willful. That increases the exposure to penalties. While OSHA’s comments in the Federal Register when the regulation was published downplayed the additional obligations of employers in complying with the law, employers and associations expressed concerns about how the “continuing violations” would be managed by employers and enforced by OSHA. These comments suggest that the compliance costs are real and material.

The National Federation of Independent Businesses (NFIB) says the regulation will cost the economy $1.9 billion over five years. OSHA disagreed with that assessment. (Federal Register, Vol. 81, No. 243, p. 91806).

See also: Captives: Congress Shoots, Misses  

It is important to remember that if Congress doesn’t act and the president does not sign the resolution, the regulation will be in effect.

The bigger picture of how to deal with a wide range of regulations from the Department of Labor, including OSHA, is a much larger topic. There are certainly controversial regulations that must be reviewed by the new nominee for Secretary of Labor, Alex Acosta, once he is confirmed. For the moment, however, this record-keeping rule is on the path of disapproval, much to the relief of employers across the country.

A Better Approach to Safety, Risk

Are you allowing insurance premium trends to “soften” your approach to preventing injuries and accidents? Or are you following the lead of the most astute risk managers and improving your company’s financial results?

Regardless of the industry or corporate strategy, those risk managers have discovered that a culture that values employees, accompanied with a rigorous pursuit of loss prevention and safety, pays dividends through engaged, satisfied workers and low turnover. Forward-looking risk managers also are leading their organizations’ efforts to protect their reputations and brands with clearly defined strategies that prevent regulatory actions.

A key is to understand how workers truly think and work to shape their mindsets, rather than take the traditional, rules-based approach to safety.

In 2013, there were some 3.8 million recorded accidents (Bureau of Labor Statistics) for a workforce of 155 million (Department of Labor). When you consider that the average work-related injury costs $38,000 (National Safety Council) to companies, we now have losses to America’s industry around $140 billion, or almost 1% of the GDP. “Far too many people are still killed on the job – 13 workers every day taken from their families tragically and unnecessarily,” U.S. Secretary of Labor Thomas Perez said when he commented on the 13% increase in fatalities to women and an overall workplace increase of 2% from 2013 to 2014.

Phil Walker, a national trial counsel for employers in California workers’ compensation cases, predicts that cases will double within 10 years. It should be expected that the cost of accidents is going to continue to rise. Insurers will be forced to increase premiums, and providers will raise consumer prices if we continue to approach safety from the present paradigm.

Additionally, there is the risk of criminal prosecution. A recent article by Howard Mavity and Edwin Foulke, former head of the Occupational Safety and Health Administration (OSHA) from 2006 to 2008, stated: “The administration and many of its allies really do want to put employers in jail.” The authors were struck by statements from the administrator of OSHA Region 4 at the recent Georgia Safety, Health and Environmental Conference, indicating that he’s recently contacted all the U.S. attorneys in his region to encourage increased criminal prosecution of workplace fatalities and OSHA violations, and will soon do the same with state attorneys general.

While workplace deaths and reported occupational injuries have dropped more than 60% in the 40-plus years since OSHA was created, the biggest factor causing accidents has yet to be addressed – the person’s mindset. If you review the OSHA website, you will see that programs focus on the work environment and safety procedures. You will NOT see programs focused on changing the individual’s mindset that caused the accident. Years of study have proven that “rules-based behavior modification” has limited effects and is often simply confined to the modification environment.

Today’s approach, while improving results, still misses an opportunity to identify underlying mindsets that drive the behaviors leading to accidents (and errors). At the core of every individual are motivations that affect the way they seek life’s rewards. Employees who remain safe in their work environment have different motivations from those who have accidents, according to a five-year study conducted in four separate industries. In that study, 37 components of an individual’s motivations were analyzed, comparing participants who were accident-free to those who had a reportable incident. The differences were quantifiable and distinctly different in the two groups. The most interesting factor was that the counterproductive factors were remarkably similar, regardless of the industry. The study proved conclusively that there are distinct motivational differences between people who are involved in accidents and those who are not, and these differences can be quantified and used as a basis for addressing the mindset that “caused” the accident.

It should be noted that this problem is not going to be quickly resolved, because you are dealing with individuals who have taken a lifetime to formulate a value system that justifies non-productive beliefs, like:

  • “If I do not sacrifice some of my personal desires, then I will never be promoted, move ahead or improve my financial status in this company.”
  • “I realize that I should be more careful, but we are under deadlines, and if I do not meet those deadlines it is going to cost me.”
  • “The odds are against that happening to me. I have done this for a long time, and I’ve never had a problem before, therefore I will continue to do things my way.”
  • “Yes, there may be a better solution, but I have to work in this environment with my co-workers. We have bills to pay – they gut it out, and I will, too.”

To change those types of mindsets, there is no quick fix. Therefore, the sooner an organization initiates the mental benchmarks and addresses the counterproductive motivations, the sooner the impact to the organization’s bottom line. A minimum of 12 to 15 hours of workbook application, seminars or training sessions are required to implement mindset and process change. With a methodical approach using human data and people metrics, the impact will be individually targeted and last longer, producing productive environment and behavioral mindset changes.

OSHA’s gains over the past four decades have been a positive beginning. However, if the insurance industry and Corporate America want to continue to improve the risk and productivity factors affecting safe working environments and profitability, they must address the mental source of accidents, not just the environment in which they occur. This will require a focus on the employee’s motivations and how they get their “rewards.” Reducing reportable incidents, increasing employee engagement and improving the organization’s bottom line will only occur when the factors affecting an employee’s motivations are addressed.

While each organizational culture is distinct, the process for reducing accidents requires reducing counterproductive mindsets. For example, some people may view love and attention as much more powerful than a $100 bonus for being safe the past month. Being pampered, receiving special attention and meals and having people you love visit you while you are injured can be a powerful incentive: To someone who feels isolated, it’s priceless! A common belief in our society is, “No pain, no gain,” and, in this case, the reward for this counterproductive mindset is worth the agony.

In my next article, I will address the various types of motivators that should be addressed and how a person’s inner dialogue changes the mindsets. In the following article, I will provide you with a five-step process any insurer or company can use to identify, quantify and address removing counterproductive motivations from their work environment. As with any prescription, it takes some time, but not four decades.

The Need to Protect Healthcare Workers

The National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) just released their Hospital Respiratory Protection Toolkit. This toolkit provides a much-needed comprehensive resource for healthcare employers to use to protect their staff from respiratory hazards like airborne infectious diseases, chemicals and certain drugs that, when inhaled, cause illness, infection or other physical harm to healthcare workers.

We know that national public health preparedness has increased because of the Ebola virus cases in Dallas last year, but the nation may not know that federal agencies like NIOSH and OSHA are always working to prepare healthcare and other workplaces from exposures to dangerous organisms and chemicals that cause infection, illness and other harm. This new toolkit is evidence of that effort. According to the International Safety Center and its EPINet data, current compliance with the use of personal protective equipment (PPE) like respirators, and even lesser protection like surgical masks, is so low (less than 20%!) that this effort can only help to improve compliance.

The OSHA Respiratory Protection Standard has long required that healthcare employers have a respiratory protection program to protect workers exposed to respiratory hazards, but the standard is as complex as are the hazards and the circumstances surrounding patient care in hospitals. This toolkit helps healthcare and program administrators sort through the standard, overcome what they may see as daunting tasks and tackle their respiratory protection programs one step at a time.

The toolkit is long — 96 pages long — but fear not. It provides great pull-out, grab-and-go tools like the “Respiratory Protection Program evaluation checklist” and a “Respiratory Protection Program template” that can be used in healthcare facilities to create, adapt or modernize programs. Not all respiratory protection program administrators are seasoned at putting programs in place that are effective, and this resource will surely assist even the novice pull together a safe program.

Hats off to NIOSH and OSHA! You remind us that keeping our patients as safe as possible is only possible when we keep our workers as safe as possible.

Your comments about the utility of this resource would be appreciated by NIOSH, as it will help inform the development of future companion resources. You can kindly email your feedback directly to Debra Novak’s email: ian5@cdc.gov.

Repetitive Stress Injury Has Become Cumulative Trauma for Employers

According to the medical dictionary, Repetitive Stress Injury (RSI) is defined as an injury that occurs as a result of over or improper use. According to the U.S. Bureau of Labor Statistics, nearly two-thirds of all occupational illnesses reported were caused by exposure to repeated trauma to workers’ upper body (the wrist, elbow or shoulder). While one common example of such an injury is carpal tunnel syndrome, in the workers’ compensation area RSI can also be claimed for shoulder, and back injuries. According to the Occupational Safety and Health Administration (OSHA), repetitive strain injuries are the nation’s most common and costly occupational health problem, affecting hundreds of thousands of American workers and costing more than $20 billion a year in workers’ compensation costs.

In the past, if an injury didn’t result from an accident, there was no workers’ compensation claim. Those days are gone and now it is understood that cumulative trauma injuries and occupational injuries that develop over time are eligible for workers’ compensation. Even if an injury cannot be tied to a single event, workers’ compensation benefits can be claimed.

According to the January 2012 joint publication by WCIR and IAIABC, every state allows workers’ compensation claims for cumulative trauma with the following limited exceptions:

Arkansas — limited to rapid repetitive motion for back or neck and hearing

Hawaii — not in the statue but handling like any other claim

Louisiana — only when considered an occupational disease

Tennessee — with limits to carpal tunnel only if it is arising out of the scope of employment

Virginia — only cumulative hearing loss and carpal tunnel are covered as “ordinary diseases of life” and subject to higher “clear and convincing” evidentiary standards as opposed to the “preponderance of the evidence.”

This widespread acceptance of RSI claims is becoming traumatic in in itself for employers, especially when one considers the requirements by CMS that were established to protect Medicare from future medical expenses for workers’ compensation and general liability claims. With these new mandatory requirements that all workers’ compensation and general liability claims be reported in electronic format, CMS has the mechanism to look back and identify workers’ compensation-related medical care payments made by Medicare. When CMS/Medicare learns (and they will) that it has been paying for workers’ compensation-related medical care it will seek repayment. The insured or employer could pay the future medical cost twice; once to the claimant at settlement and later when Medicare seeks reimbursement of the medical care they paid on behalf of the claimant, i.e. the cumulative effect.

Let’s focus on a key state, California, where this has become a pressing issue. Under California Labor Code Section 5412, the date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.

The wording of this statute is proving to be very problematic for employers, as there is no clear-cut timeframe to hold an injured worker accountable to report said injuries. Even more so since cumulative trauma disorders are difficult to diagnose and treat and causation plays an important factor in determining AOE/COE. The magic bullet would be to determine if the injury is AOE/COE or to be able to age the injury. One of the only tools that has been proven effective is the Electrodiagnostic Function Assessment. The EFA is the only FDA-registered device that can age and diagnose this type of injury and its definitive registration allows the monitoring of the necessary frequency response that characterizes a repetitive stress injury. Additionally, it is the only device of its kind that has changed the face of RSI litigation.*

* U.S. District Court, 980 F. Supp, 640, 64-48 (E.D.N.Y., 1997): Geressy v. Digital Equipment Corporation. The EFA changed the face of repetitive stress injury litigation when Judge Weinstein overturned what, at that time, was the largest product liability verdict ever for RSI because of the EFA.

Is Your OSHA Program Discriminatory?

Musculoskeletal Disorders (MSDs) represent 28% of all recordable OSHA injuries and account for 33% of the total cost of work-related injuries. Each recordable OSHA musculoskeletcal disorder involving lost time results in an average of 20 or more lost work days, compared to 9 lost work days for all other recordable injury types. Since the enactment of OSHA in 1970, the regulations have evolved to increasingly focus on the reduction of job hazards potentially leading to fatalities, amputations, and other serious injuries. Accordingly, a significant decline in the number of those types of injuries is evidenced in OSHA's records. However, muskuloskeletal disorders and other “soft tissue” injuries continue to plague workers and their employers with no indication of decline.

In fact, all indications point to an increase in muskuloskeletal disorders given that the percentage of workers ages 55-64 will increase by 36% during the next 5-year period while the percentage of workers under the age of 25 will decline. Obviously, older workers are more susceptible than younger workers to work-related muskuloskeletal disorders because of decreasing functional capacity due to degenerative conditions, pre-existing conditions and old injuries. Also troubling about this muskuloskeletal disorder injury forecast is the fact that older workers require longer recovery periods, inevitably driving up direct medical and disability costs. Indirect costs include overtime, training, and lost productivity related to injured workers' inability to perform their normal work. According to OSHA, for every $1 of medical-only claims, employers sustain $4.50 in indirect, uninsured costs.

Safety is an investment in future profitability for every employer and the well-being of every worker. However, an employer must exercise caution in its safety programs so as to avoid OSHA's anti-discrimination policies. Recently, Richard Fairfax, OSHA's Deputy Assistant Secretary, issued a memo addressing employers' safety incentive programs and suggesting that some such programs are merely a pretense to save workers' compensation costs and actually resulting in discriminatory disincentive policies and practices. Fairfax's memo emphasizes that a worker's reporting of a claim is a protected act, and identifies four approaches that potentially expose the employer to discriminatory practices:

  1. Taking disciplinary action against injured workers;
  2. Penalizing injured workers for failure to timely report an injury;
  3. Penalizing injured workers for violation of safety rules; and,
  4. Implementing certain performance incentive programs.

Under OSHA, Section 1904.4 (Recording Criteria) the employer must ascertain whether a work-related injury or illness has occurred, and if so, record the appropriate report with OSHA. If the employer is uncertain about whether an actual injury or illness has occurred, the employer may refer the worker to a physician or other health care professional for evaluation. The employer may then consider the health care professional's opinion in determining whether a recordable injury or illness exists.

One vehicle to objectively identify work-related injuries is the Electrodiagnostic Functional Assessment (EFA) Soft Tissue Management baseline program. The Electrodiagnostic Functional Assessment Soft Tissue Management baseline program is the proven non-discriminatory solution to OSHA compliance in the area of muskuloskeletal disorders. This program involves pre-injury soft tissue testing of workers that provides an objective baseline for later reported muskuloskeletal disorder injury claims. When the post-loss Electrodiagnostic Functional Assessment is compared to the baseline EFA, objective evidence is generated to determine if there is an acute injury arising out of the course and scope of employment. If no change is documented, there is no claim and thus, no reportable OSHA incident. Furthermore, no state or federal statues are triggered if evidence shows no sustained injury.

Conversely, if a change is documented, the employer is alerted to a recordable OSHA injury, and can reliably report the muskuloskeletal disorder in compliance with OSHA. More importantly, the Electrodiagnostic Functional Assessment further provides recommendations for site-specific and appropriate muskuloskeletal disorder treatment, resulting in quicker worker recovery, expeditious return-to-work, efficient compliance with OSHA's work readiness requirements, and, ultimately, limiting the employer's exposure and costs.

For more information about the Electrodiagnostic Functional Assessment Soft Tissue Management baseline program, contact the author at MReaston@emergedx.com or 702.234.1014.