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.
First Connect is pleased to announce a new service: Injury Nurse Triage. The service is designed to help employers make better initial treatment decisions for injured workers at the time of injury. Injured workers and their supervisors have 24/7 access to a trained registered nurse who immediately assesses the situation. Using nationally accepted guidelines, the nurse makes appropriate treatment recommendations that may include first aid, appointments with occupational medicine providers and, only when necessary, the emergency room.
Employers who use injury nurse triage have experienced up to a 40% decrease in medical costs and up to a 35% reduction in claims. The service is available to employers nationwide. Find out more about the new service here: Injury Nurse Triage and join our informational webinar on January 25 to find out more:
Injury Nurse Triage: The Missing Piece for an Effective Workers' Compensation Program.
We had such an overwhelming demand on our webinar: "Don't Get Fined: Ohio's Medical Marijuana Law and OSHA"s Position on Post Accident Testing", that we scheduled a second session. To register, click the link below and we thank you for making this course so popular!
Webinar: Don't Get Fined: Ohio's Medical Marijuana Law and OSHA's Position on Post Accident Testing
Date: Tuesday, December 20 at 1 pm
Seating is limited. Pre-registration is required.
Click here to register for the December 20th session.
Featured Webinar Schedule:
"Don't Get Fined! Medical Marijuana in Ohio and OSHA's position on Post Accident Testing"
12/14 at 9 am or 12/20 at 1 pm
Injury Nurse Triage: The Missing Piece for an Effective Workers' Compensation Program
1/25 at 9 am
"Transitional Work Grant and Bonus Program: Right for your Company?"
2/22 at 9 am
Managing a Drug Free Workplace in a Heroin and Prescription Drug Epidemic
3/15 at 9 am
To register, please visit our website: Webinar Schedule
The Federal Motor Carrier Safety Administration (FMCSA) announced a final rule that will establish a national drug and alcohol clearinghouse for commercial truck and bus drivers. The database will serve as a central repository containing records of violations of FMCSA’s drug and alcohol testing program by commercial driver’s license holders. (CDL)
Once the clearinghouse is established, motor carrier employers will be required to query the system for information concerning current or prospective employees who have unresolved violations of the federal drug and alcohol testing regulations that prohibit them from operating a commercial motor vehicle. It will also require employers and medical review officers to report drug and alcohol testing program violations.
The final rule requires motor carriers, medical review officers, third party administrators and substance abuse professionals to report information about drivers who:
Motor carriers will be required to annually search the clearinghouse for current employees and during the pre-employment process.
The national drug and alcohol clearinghouse final rule goes into effect in January 2020. To view the final rule, click here.
Webinar: "Don't Get Fined! Medical Marijuana in Ohio and OSHA's Position on Post Accident Testing" Scheduled for 12/14
OSHA's position on post accident testing could bring big fines if your company is not in compliance and Ohio's new medical marijuana law is leaving employers perplexed. Join us for a one hour webinar where we will review it all!
Seating is limited. Pre registration is required. Register here: Webinar Registration.
Featured Webinars Schedule:
For more information or to register for our Featured webinars: First Connect Webinar Schedule
Ohio's Drug Free Safety Program doesn't exempt your company from OSHA's position on post accident testing
,A few weeks ago, we received an inquiry from one of our partners asking about OSHA's position on post accident testing and whether Ohio employers in the Drug Free Safety Program (DFSP) needed to comply. It seems one of his employers had attended an education session where the speaker addressed the new OSHA rule. In doing so, the speaker stated that employers in the DFSP were exempt from compliance with the post accident testing provision addressing automatic testing policies. The generality of the statement by the speaker leads employers in Ohio down a dangerous path.
First, OSHA's position on post accident testing addressed in the new recordkeeping rule makes having an automatic testing policy on all injuries a violation of the final rule. The rule "encourages" employers to only test when there is reason to believe that drugs and/or alcohol may be involved. While it is true that, on October 19, OSHA clarified their position on employers exempt from the rule to include those participating in state workers' compensation discount programs, Ohio's Drug Free Safety Program does not require an automatic testing policy after an injury.
From the Drug Free Self Implementation Guide (pages 16 and 17):
"BWC provides what we consider to be an “intelligent-testing design.” As such, even after conducting an accident investigation and determining who may have caused or contributed to a work-related injury, we do not require employers to order a post-accident test if all the following apply:
To better understand the DFSP requirement, let's use a simple example: A nurse hurts her back while lifting a patient. In an automatic testing policy, the nurse would be required to test. However, following the DFSP language above: if the injury is common to the nurse’s job (it is), there's no violation of work rules (there is not) and there’s no reason to believe that drugs or alcohol are involved (there is not), no test would be conducted.
Using the example provided above, it's easy to see that the DFSP only requires the same type of decision making process when an injury occurs that OSHA supports - not an automatic testing policy.
For many years, employers in Ohio have utilized an automatic testing policy after an injury requiring medical treatment. Nobody has told them that they have to, it's just become common practice. The automatic testing policy has never been a problem because the practice goes beyond what the BWC requires. But now that OSHA is on the scene and without a DFSP requirement to protect participants, those employers with an automatic testing policy are running afoul of OSHA's anti retaliatory provision and the consequences can be harsh. Unless regulated, employers should abandon the practice of automatic testing and move to a procedure and policy that allows discretion when requiring a test. More from our blog here: New Anti Retaliatory Rule Affects Post Accident Testing Policies.
Update: A federal judge has denied a preliminary injunction request and enforcement of the anti retaliatory provision in the recordkeeping rule is set to go forward on December 1. While there may be updates on the rule at a later time and the change in presidential administration may impact the rule after the first of the year, employers should ensure compliance with the new rule immediately.
This afternoon, a federal judge in Texas denied a request from employers and business groups for a preliminary injunction to halt the enactment of the anti retaliatory provision in the OSHA recordkeeping rule. The decision affects an employer’s injury reporting process, including post accident drug and alcohol testing policies and safety incentive programs. The decision only denies the preliminary injunction and a decision regarding a permanent injunction will come at a later date however, enforcement will begin December 1st without further delay and employers should review their policies and make the necessary procedural changes immediately.
While much of the focus on the final recordkeeping rule has been on the electronic reporting requirements, language addressing injury reporting was also clarified. The rule requires employers to have a reasonable injury reporting process. For post accident testing, OSHA said drug testing programs requiring blanket testing of all employees who experience an injury would violate the standard stating the threat of testing would discourage reporting. OSHA has instructed employers to only use post injury drug testing “when there is a reasonable possibility that drug use by the reporting employee was a contributing factor”.
In the decision, Judge Sam Lindsay said the organizations and employers seeking an injunction against enforcement of the rule failed to show that there would be irreparable harm if OSHA moved ahead with enforcing the rule.
On October 19, OSHA issued guidance on safety incentive programs, disciplinary programs and drug testing and is available on the OSHA website or by connecting to our blog: OSHA Issues Guidance on Post Accident Testing.
Update November 28: A federal judge has denied a preliminary injunction request and enforcement of the anti retaliatory provision in the recordkeeping rule is set to go forward on December 1. While there may be updates on the rule at a later time and the change in presidential administration may impact the rule after the first of the year, employers should ensure compliance with the new rule immediately.
OSHA has announced a second delay for the Anti-Retaliatory portion of the final Record Keeping rule announced in May. This is the section that addresses post accident drug and alcohol testing policies. Originally scheduled to go into effect in August, this portion of the rule was first delayed until November 1, 2016, in order to give further guidance to affected employers.
At the request of a judge hearing cases filed by business groups in Texas challenging OSHA's position on post accident testing, OSHA has further delayed the effective date of the Anti- Retaliatory portion until December 1, 2016.
Because of the uncertainty surrounding the outcome of the lawsuit, employers should not revise drug testing policies until the courts or OSHA provide definitive guidance.
For those of you that were scheduled for our educational webinars or training on post accident testing with reasonable suspicion in the next few weeks, we have postponed and will reschedule the webinars once a ruling has been made.
Please note that only the Anti-Retaliatory portion of the Record Keeping rule has been delayed. You should proceed with all other positions of the rule as required.
For more information on the delay, visit the OSHA website: OSHA delays enforcement of anti-retaliation provisions.
We will continue to keep you up to date on this development.