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By David S. Tucker, AVP, Production Operations, Louisiana Workers' Compensation Corporation
What does the recent OSHA rule, Improved Tracking of Workplace Injuries and Illnesses, address and how does it affect your insuredâ€™s current safety and loss prevention policies?
One of OSHAâ€™s newest rules, Improved Tracking of Workplace Injuries and Illnesses, may be misinterpreted by some of your policyholders. Therefore, you may find your safety and loss prevention team fielding questions about this rule as your policyholders seek guidance and assistance complying with the rule.
The recent filing contains two components: anti-retaliation and electronic injury and illness reporting.
The anti-retaliation portion went into effect on December 1, 2016, and was enacted first because its components will encourage employees to provide accurate information for the injury and illness reports.
The rule includes three provisions that are intended to address the anti-retaliation issue:
Policyholder questions will likely concern the application of disciplinary, incentive, and drug-testing programs. Each of these safety programs is effective and none are banned if executed appropriately and reasonably. All three areas are important to implement to protect the safety of employees as well as company reputation. However, the potential exists for employers to use the existence of these safety programs to deter injuries and incidents from being accurately reported to OSHA. There is nothing in the rule that prohibits these programs, but employers should be deliberate to execute them in a consistent manner and not reactionary to an injury or illness.
Regardless of whether an adverse action is taken pursuant to a disciplinary policy, a post-accident drug-testing policy, or an employee incentive program, OSHAâ€™s ultimate burden is to prove that the employer took the adverse action as a result of the employee-reported work-related injury or illness and not for a legitimate business reason. Determining in a particular case whether a violation occurred and whether there is enough evidence to substantiate the violation will be a fact-specific inquiry.
The second portion of the rule includes injury and illness reporting, which took effect on January 1, 2017. Specific employers are now required to electronically submit the information that was previously kept as documentation in the prior OSHA recordkeeping regulations. This portion of the rule was intended to maintain employer accountability for accurate recordkeeping and encourage prevention of injuries. Although these requirements will not be immediate for all portions of the reporting, OSHA will incrementally implement them over time.
As workersâ€™ compensation carriers, our goal is to provide the best customer experience for our policyholders. However, no one is as well versed on OSHA requirements as the regulators themselves. Therefore, if you have any questions on the Improve Tracking of Workplace Injuries and Illnesses ruling please refer to OSHAâ€™s Frequently Asked Questions section of its website as well as the fact sheet available online. If further clarity is needed, refer to your or your insuredâ€™s local Occupational Safety and Health Consultation office.