The Journal Gazette
Sunday, July 03, 2016 10:10 pm

OSHA injury rules changing

Sherry Slater | The Journal Gazette

Employers can’t automatically drug-test workers after workplace accidents or reward employees for avoiding accidents, according to new federal rules going into effect soon.

Either policy could discourage workers from reporting injuries and illnesses, a local attorney said.

The fines for breaking those rules are almost doubling, climbing to $12,740 from $7,000 for the first serious citation. Repeat or willful violations will prompt a $127,400 fine, up 82 percent from $70,000.

When the Occupational Safety and Health Administration, or OSHA, announced the changes in May, many people focused on an electronic reporting requirement that doesn’t kick in until next year, said Mark Kittaka, a partner with Barnes & Thornburg. But other significant changes will be enforced sooner, he said.

Ohio employers must comply with the new rules next month, beginning Aug. 10. Indiana, which allows employers a 60-day grace period before adopting federal changes, will start enforcing the rules on Oct. 9.

Kittaka, who heads the firm’s local labor and employment law department, said even some of this colleagues weren’t aware of the lesser-known changes before he started highlighting them.

John Dortch, president and CEO of The Preston Joan Group, a local human resources consulting firm, said many employers require drug or alcohol tests for all workers who have accidents on the job.

It’s also common for employers to reward workers for safety, he said.

Dortch endorses both policies and opposes OSHA’s move to curtail them.

"I think it’s a good thing," he said. "For safety, I think it’s critical."

Hold the testing

Although it might seem more even-handed to drug-and alcohol-test everyone who has an accident, that strict policy might discourage workers from reporting they’ve been hurt on the job, OSHA officials decided.

Employers should revise mandatory post-accident testing policies to make testing discretionary depending on the circumstances, Kittaka said.

For example, someone who is stung by a bee on company property wouldn’t likely have contributed to the incident by being intoxicated. The same goes for a worker with carpal tunnel syndrome, he said.

Employers need to review safety policies and update employee handbooks as needed, Kittaka said. An attorney can advise employers on appropriate wording.

Dortch would advise clients to keep their current policies and be willing to pay the fines. He doesn’t know how employers could decide which kinds of accidents would prompt tests.

Employers could open themselves up to lawsuits if workers don’t think the company is fair or consistent in determining who gets tested.

"It is problematic," Dortch said. "I don’t feel like it’s the right thing to do."

Check the manual

Steel Dynamics Inc., a steelmaker and recycler, stresses safety to workers.

Mark Millett, president and CEO of the Fort Wayne company, begins every quarterly earnings call with analysts by addressing the topic. In the most recent call, April 21, he described the safety and welfare of employees as the company’s No. 1 priority.

"Nothing surpasses the importance of creating and maintaining a safe work environment," he said while discussing first-quarter earnings.

"Our safety performance remains better than the industry averages, and continues to improve toward our goal (of) zero incidents."

The CEO thanked employees "for their continued focus and dedication" to safety, according to a transcript prepared by Seeking Alpha.

If Millett’s gratitude is all they receive, that’s fine. But, Kittaka said, bonuses, gift cards, pizza parties and other tangible rewards won’t be allowed after Oct. 9 because they could prompt co-workers to pressure others not to report injuries and illnesses.

"OSHA wants to see programs that encourage safety but do not discourage reporting," Barnes & Thornburg attorneys said in an advisory to clients.

That federal agency also wants employee handbooks to specify that employees are expected to report all accidents and cannot be fired for doing so.

Safety first

Jeff Hansen, Steel Dynamics’ vice president of human resources and safety, said the fifth largest steelmaker in the country has safety entwined in its DNA.

Although the company doesn’t have one consistent safety bonus program, some departments have rewarded workers with pizza parties, for example, he said.

Hansen noted that people interpret OSHA rules differently. If the attorney who advises Steel Dynamics on labor issued agrees with Kittaka’s take, the company will tweak its approach, Hansen said.

One previous incentive was that supervisors would shave their heads if workers avoided accidents.

It’s unclear whether such an approach might be deemed acceptable by regulators.

"We’re going to go above and beyond anything OSHA requires," Hansen said. "There will always be ways for us to be creative and still live up to the OSHA requirements." 

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