Late last week, OSHA issued compliance guidance in an attempt to clarify the department’s position.
In May of 2016, OSHA finalized the new recordkeeping regulation and, with it, included a provision meant to prevent an employer from retaliating against an employee who reports a work related injury. While the original provision never mentioned blanket post accident drug and alcohol testing policies specifically, the final regulation’s preamble addressed exactly that. It was the preamble that left employers questioning whether their blanket post accident testing would open their organization up to substantial fines.
Last week, from OSHA:
“29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Since the clarification, we’ve had many calls from confused employers – and rightly so. Although the above guidance may have loosened the testing reins in certain situations, it certainly does not walk back the prior guidance completely. Instead, the latest from OSHA reinforces the need for an employer to test only when there’s a legitimate business need and, above all, for the employer to be consistent when making testing decisions in similar situations. In other words, nothing has really changed.
In the last two years, many employers have come to realize that a blanket testing policy, while easier to manage, has never been a good business decision. In blanket testing, employers often had standing orders in the office of their treatment provider that gave the go ahead to test any employee who presented for treatment of a work related injury – regardless of the cause. Employees who presented for the treatment of a bee sting, for example, or those who were injured as a result of a co-workers’ negligence, very often, had to submit to testing. Employees who presented for treatment days or even weeks after the injury also had to submit to testing. Having such a decisive policy has, over the years, resulted in causing issues for a decision the employer did not directly make and consequences that their policy may not be prepared to support.
Where do we go from here?
This is not the last time we’ll be hearing about this particular regulation. At this writing, there are still two lawsuits that were put on hold by the courts while the current administration reviewed the rule. It is still quite possible that the entire rule will be walked back. But, until that time, employers should continue to only require post accident testing when there is reason to believe that drugs or alcohol are involved. To ensure consistency, use a checklist for every injury and document the information that led to the decision to test or not test. Take time to train your supervisors, as well. Their documentation, if they decide to require a test, will not only cover OSHA’s requirement but may also help your case if there’s a reason to challenge the claim. So train your supervisors to be detailed!
Drug Free Safety Program Participants
The recently released guidance also mentions, again, that there are exceptions that allow for a blanket testing policy, including participation in a workers’ compensation discount program. This is just a reminder that Ohio’s Drug Free Safety Program does not now nor has it ever required testing after every injury. While it was common for employers in the DFSP to have blanket testing policies, the Drug Free Safety Program’s Self Implementation Guide (page 17) is quite clear in stating that there are situations when testing is not required. In other words, continue to follow OSHA’s requirements until otherwise noted.
Note: The guidance also included information on safety incentive programs. For more information, visit OSHA's Website: Clarification on OSHA's Position.
For questions, please contact our offices.
Ohio's medical marijuana program has hit a snag. Because of a delay in issuing certificates to grow centers and processors, product will not be available to patients on the required roll out date of September 8th. The state has also delayed implementing the patient portal for registration until closer to the time when product will be ready. To date, almost 200 doctors have been certified to recommend medical marijuana.
What employers need to know
While the program has hit a delay, we've experienced an increase in calls from employers who have encountered a situation involving medical marijuana use by an employee. The law does provide an "affirmative defense", allowing patients found to be in possession to make the argument that they meet the conditions of the law before the law goes into effect. Some have an "Affirmative Defense" letter issued by their doctor as proof of compliance.
Employers should prepare now.
Under the new law, employers are under no obligation to permit use by employees or allow possession of medical marijuana at the worksite. Employers don't have to (and should never) allow an employee who is impaired to continue to work. Drug Free Workplace programs (Including the Drug Free Safety Program) are not affected and those who have zero tolerance policies for a testing positive can continue this discipline policy. And, while an employer can decide whether their own organization will completely ban use or accommodate use for employees, the law is clear that there must be a written policy and it must be communicated to employees prior to enforcement. Without it, employers won't have a leg to stand on. Whether your company is thinking about banning the use altogether or accommodating use for employees, we strongly recommend that all organizations make developing a medical marijuana policy an immediate priority before a situation occurs.
If you have not yet attended our webinar "Medical Marijuana in the Workplace" (free of charge), we will be presenting it again on August 23 (Register Here) . For our current training clients, assistance in updating your policy is covered under your support services and always free of charge to you. For other employers, contact our offices - we can help you too!
It's time for all DOT companies to ensure they are ready for the new Chain of Custody forms starting on July 1. DOT drug tests completed on the wrong form after June 30 will require the lab will be required to submit a memorandum for the record and will cause a delay in processing.
The new Chain of Custody form mirrors the January 1, 2018 DOT changes. If your company is not currently using eCCF (electronic), it's a good time to check with your testing provider about making the switch. The eCCF will reduce mistakes and paperwork and ensure faster drug screen collections.
For more information on this required change, visit the U.S. Department of Transportation website: U.S. DOT
First Connect has scheduled three webinars on the upcoming Medical Marijuana law and a Bootcamp for employers with drug and alcohol testing programs. "Medical Marijuana in the Workplace: Are you ready for Sepetember?" will be presented on June 14 and July 12. During the webinar, we will review the ins and outs of the new law, the responsibilities of the employer and best practices in your workplace.
Both webinars are a part of our Featured Webinar Series and are free of charge to employers. To register, visit our "Webinar Schedule" page.
Open Enrollment for Managed Care Organizations in Ohio started today and we’ve already received a few calls with questions. Understandably, it’s a confusing time with a lot of information coming from many different sources. The window for an employer to change their MCO provider lasts 30 days and comes around only once every two years. The next opportunity to change will be in 2020. All employers – even those comfortable with their current MCO - should take this time to evaluate their workers’ compensation program and the costs associated with injured workers over the last two years.
The MCO is a critical partner and plays an important role in ensuring quality care for the injured worker and controlling the bottom line for employers. Workers’ compensation costs can be expensive. For that reason, evaluating the MCO’s performance is crucial to the financial stability of the company.
What Does an MCO Do?
In Ohio, all public and private employers in the state fund workers’ compensation system are required to have an MCO. The services of the MCO are paid for through the employer’s workers’ compensation premium so the decision to use one MCO over another should be based on performance rather than cost.
All MCOs are tasked with the medical management of the workers’ compensation claim. The team will focus on the injured worker’s well being, ensure quality medical care and return the injured worker to duty as soon as safely possible. While all MCOs have the same basic function, some perform much better than others.
While reviewing the claims for the last two years, the biggest question to ask is if the claims history looks better now than it did two years ago? Is the premium and experience modifier moving in the right direction (decreasing)? Has the current MCO been responsive? Take a look at the most difficult claim and ask if the MCO explored all options to move that injured worker’s recovery forward or was the handling of the claim frustrating and disappointing? If so, there may be a better provider.
Size Doesn’t Matter
During open enrollment, employers can expect to receive information from many sources. It’s important to understand the motivation of each endorsement, metric and marketing piece received. Remember: Bigger doesn’t always mean better and smaller doesn’t mean more responsive. What does matter is the MCO’s performance.
Marketing material may contain many metrics and statistical information. It’s important to read the fine print and establish if the information is current. Any date listed before 2018 or without current information should be immediately discarded. The BWC also provides the most up to date information on many benchmarks on the MCO Report Card.
Know What’s Important
Return To Work: Lost time claims have a significant impact on an employer’s workers’ compensation premium. Having an MCO that consistently performs well in returning an injured worker to the job should be an employer’s number one priority. Return To Work is one of the metrics listed on the MCO Report Card. On the MCO Report Card, the higher the number for Return To Work, the better the performance.
Medical Provider Networks – An MCO can also have substantial influence on the medical costs by utilizing a medical provider network with rates negotiated lower than the current BWC fee schedule. Lower costs mean less impact on the employer’s experience and, in turn, controlled premium dollars.
Drug Utilization Review (DUR) - Lastly, choose an MCO that makes DUR a standard piece of the claims management protocol. The DUR reviews the claim for inappropriate medications or excessive use. This process ensures the health and safety of the employee and workforce and, also, controls the cost of claims.
Who Can You Turn To for Help?
If, after evaluating the current provider, an employer decides to explore other options, there are many resources to help find a few MCOs to interview. Employers should always interview at least two candidates. First, start with your Third Party Administrator. The TPA knows the employer’s claims history and management style and will be a good resource for the employer. Reminder: Some TPAs and MCOs share a parent company. When such a relationship exists, it’s best to request two additional MCOs and interview all three. While this process may take a little more time, it’s best to ensure the decision is a proper fit for the company and not because of the TPAs responsibility to their parent company.
Chambers of commerce and business associations often endorse an MCO during open enrollment. Before following the recommendation in blind trust, ask questions. Why did the Chamber/Association choose the particular MCO? When was the MCO last evaluated and what information was the decision based upon? It’s a good idea to get multiple recommendations and interview two to three prospects.
And, don’t forget the best resource of all: other employers. Employers will be able to provide personal experience and can help to understand the claims management style of the MCO.
Lastly, First Connect has been helping employers choose Managed Care Organizations and Third Party Administrators for over 14 years. Our staff is an unbiased resource in that we aren’t paid by any MCO or TPA. We work only for employers.
Open Enrollment ends on Friday, May 25th and all enrollment forms must be received by the BWC before 5:30 pm. Enrollment can be completed online or by printing off an enrollment form and faxing it to the BWC. Forms can be found on the BWC website: Enrollment Forms
For more information or assistance in choosing an MCO that is right for your company, please call our offices.
Good news for Ohio employers! BWC administrator, Sarah Morrison and Governor John Kasich announced their intention to recommend a $1.5 Billion rebate for Ohio businesses, schools and local governments. The recommendation will be presented to the Ohio BWC Board of Directors on April 25th with a vote coming in May. If approved, the BWC will have returned $8 billion to employers since 2011.
The rebates are made possible by a decrease in the amount of claims filed and excellent return on the investments in the fund.
Employers can expect to receive their rebate in the amount equal to 85% of the employer's premium paid for the 7/1/2016 - 6/30/2017 fiscal year (calendar year 2016 for public employers). The rebate is expected to be mailed in July. Rebates for employers in the Group Retrospective Rating program will be mailed in October.
The BWC also announced preliminary plans for other programs impacting the safety and wellness of Ohio's worker's. More details on those plans will come in the upcoming weeks.
For more information, visit the Ohio BWC website: $1.5 Billion Back for Employers
The U.S. Department of Transportation has issued a final rule expanding DOT's current drug testing panel to include semi-synthetic opioids: hydrocodone, hydromorphone, oxymorphone and oxycodone on the required drug testing panel for DOT regulated industries. The drugs are more commonly known as OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo. Employees will no longer be tested for MDEA.
As required by the Omnibus Transportation Employee Testing Act of 1991, the DOT is harmonizing with the Department of Health and Human Services revised Mandatory Guidelines on Federal Testing Programs. The change will also clarify existing drug testing provisions, make technical amendments and removes the requirement for employers and Consortium/Third Party Administrators to submit blind specimens.
What employers need to know
The HHS certified labs performing DOT tests will make the change to all testing beginning on January 1, 2018. Employers with concerns should contact their collection locations or drug testing third party administrators for guidance.
Important Note: NON DOT tests are not affected by this change, however, in light of the current opiate abuse epidemic, we strongly recommend that all employers expand opiate testing to include the above listed drugs. To expand opiate testing, contact your drug testing provider.
If you have any questions regarding this change, please contact our offices.
At the end of June, OSHA published a notice in the Federal Registrar proposing a delay to the required reporting of illness and injury data under the Record Keeping Rule. OSHA has also signaled that other portions of the rule may be under review and/or revised.
Additionally, In two separate lawsuits challenging the anti retaliatory portion of the rule, the federal district courts have issued a stay in litigation while OSHA considers whether to review and/or revise all or part of the rule. This is the portion of the Record Keeping Rule that will affect incentive programs and post accident testing.
What employers need to know
The delay only affects the effective date of the reporting of illness and injury requirement. While OSHA is considering reviewing and/or revising other sections of the Record Keeping Rule, nothing official has come from OSHA. Employers should continue to follow the current protocol and only require a post accident drug test when there's reason to believe that drugs or alcohol may have been contributed to the cause of the injury.
We will continue to monitor the situation and send an update as soon as information is made available.
For the third time, Ohio BWC administrator, Sarah Morrison and Governor John Kasich are proposing to return one billion dollars to Ohio private and public employers in the state fund workers' compensation system. The administrator indicated that a combinator of an improved safety climate, good fiscal management and stronger than expected investment.
Over the last few years, the Ohio BWC has cut rates an average of 30% and, with additional rebates and credits, returned $6 billion to employers.
For more information, visit the Ohio BWC website.
For employers who are thinking about participating in the Drug Free Safety or Transitional Work Bonus program this upcoming program year, we have scheduled two informational webinars for you!
Ohio Drug Free Safety Program: Getting Started
Thursday, February 16 at 9 am
Ohio BWC offers up to a 7% discount on workers' compensation premiums for eligible employers. During this session, we will review the requirements of the program, the different levels of participation, safety grant reimbursements and tips to evaluating whether this program is right for your company.
Transitional Work Grant and Bonus Program: Getting Started
Wednesday, February 22 at 9 am
An effective Transitional Work Program is one of the most important pieces of a successful workers' compensation program. Join us for this one hour webinar where we will discuss everything you ever wanted to know about the Ohio BWC's Transitional Work Grant and Bonus program.
During the hour, we will explain the basics of transitional work and the impact on your workers' compensation premiums, accessing the grant and developing the program, finding a certified BWC developer and how to maximize the rebate in the bonus program.