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OSHA’s New Rules on Retaliation Incentive Programs, Post-Incident Drug Testing and Disciplinary Programs

Employers need to determine whether or not their safety incentive programs, as well as their post-accident drug and alcohol testing programs and disciplinary program, comply with OSHA’s new requirements.

In May 2016, OSHA published a final rule that updated requirements for reporting work-related injuries and illnesses, which also included a new provision that specifically addressed retaliation for reporting incidents. Subsequently, OSHA released a memo providing guidance on how to comply with the various requirements found in the final rule. The memo addresses an employer’s obligation to have “reasonable procedures” in place for employees to report injuries and illnesses without the fear of retaliation.

The anti-retaliation section, which is one of the most important for employers to understand, describes what OSHA will consider a violation when looking at the overall reporting program—especially in determining if there is a potential for retaliation against employees who report incidents (for example, withholding a benefit—such as a cash prize drawing or other substantial award—simply because of a reported injury or illness). The rule doesn’t prohibit incentive programs. 

However, employers cannot create incentive programs that deter or discourage any employee from reporting an injury or illness.

Effective Safety Incentive Programs

Incentive programs should encourage safe work practices and promote worker participation in safety-related activities. Not only will these types of incentive programs comply with OSHA, but they will also be more effective in encouraging safe behavior, thereby reducing the number of injuries. Some examples of behaviors that can be rewarded with an effective incentive programs include:

•  Participation in safety program activities and evaluations;      
• Completion of safety and health training;     
• Reporting and responding to hazards and close calls/near misses; 
• Safety walk-throughs and identification of potential safety hazards;
• Compliance with planned preventive maintenance schedules;
• Following workplace safety rules.

The key to an effective safety incentive program is to reward safe behavior rather than the lack of an injury. A positive way of accomplishing this is by setting up a program that will provide a cash prize for each work group that goes an entire month with all members of the work group complying with specific safety rules, such as wearing required fall protection. Supervisors of each work group should be rewarded as well. Rewards should be at least every 6 weeks, and can build up to a year-long grand prize.

If an employer does set up such an incentive program, what happens if an employee sustains a lost-time injury by falling off a platform while not wearing the required fall protection and he reports the injury to the employer?  The employer can then cancel the cash prize drawing for that specific work group that month because the employee failed to wear the required fall protection, NOT because he was injured. However, there must be an active incentive program in place and the employer must be actively monitoring for compliance. Employees cannot receive the reward when they do not use the fall protection, regardless of whether or not an injury occurred.

Post-Incident Drug Testing

The OSHA rule does not prohibit drug testing of employees, including drug testing required by the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.

Employers can conduct post-incident drug testing if there is a “reasonable possibility” that employee drug use could have contributed to the reported injury or illness. However, if employee drug use could not have contributed to the injury or illness, post-incident drug testing would likely only discourage reporting without contributing to the employer's understanding of why the injury occurred. Drug testing under these conditions could be considered retaliation.

For example, if an employee reports a repetitive strain injury and the employer requires post-incident drug testing, then that testing would be prohibited because it is unlikely that a repetitive strain injury would be related to drug use by the employee. In a different situation, it would be reasonable for an employer to require post-incident drug testing for a worker who reported an injury while operating a forklift if the employee's conduct contributed to the injury. Employers do not need to specifically suspect drug use before post-incident testing, but there should be a “reasonable” possibility that drug use by the reporting employee could have contributed to the reported injury or illness. Prior to any drug/alcohol testing a company policy must be in place and administered uniformly.

Disciplinary Program

Employers cannot use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.

The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injuries or illnesses, such as automatically suspending workers who report an injury. The rule also does not allow disciplining an employee who reports a work-related injury or illness by stating that the employee violated a work rule if the real reason for the discipline was the reporting of an injury. For example, if an employer disciplines an employee who reported a work-related injury for violating a work rule, but fails to enforce the work rule against other employees who violate the same rule but do not report an injury. It is the same as described in the safety incentive program criteria.

The most common time this type of retaliation is seen is when an employer disciplines an employee who reported an injury or illness for violating a vague rule such as "work carefully" or "paying attention." In this example, the reported injury or illness is often the only basis for disciplining the employee. A rule of thumb to follow is if the employee had not reported the injury or illness, would the employer have still disciplined the employee?  If not, then the employer cannot discipline them if they report an injury.

Effective and legitimate workplace safety programs should treat all workers who violate safety rules in an equivalent manner, regardless of whether or not the violation resulted in the worker reporting an injury or illness. On the other hand, employees who follow the rules should be rewarded fairly and equally as well. 

Dividend News from Lovell Safety Management

Lovell Safety Groups Earn Dividends

New York, NY... Lovell Safety Management Co., LLC, announced the 2015 - 2016 dividend earnings of three of its Safety Groups:

New York Hospitals and Health Care Entities, Safety Group #275

New York Construction Industry, Safety Group #469

New York State Printing and Imaging Association, Safety Group #514 

Safety Group #275 paid a 10 percent dividend. Qualifying members received an advance discount of 20 percent.

Safety Group #469 paid a 25 percent dividend. Qualifying members received an advance discount of 25 percent. 

Safety Group #514 paid a 30 percent dividend. Qualifying members received an advance discount of 25 percent.  
 
Lovell Safety Groups are fully insured, non-profit entities that return any underwriting profit to group members. Any extra premium dollars collected-not used to pay losses or expenses-can be returned to members in the form of a dividend. Lovell Safety Groups provide businesses with the benefits of a guaranteed cost premium with additional savings earned through dividends.

For more information about Lovell Safety Groups, please contact: 

Dawn Ardolino, Lovell Safety Management LLC.; P: 212-709-8658; 

Email: information@lovellsafety.com

Quick and Responsive

Lovell Safety not only works with your staff to improve worker safety, our representatives specialize in many areas such as injury prevention, promoting safety, managing current injuries, reducing costs, and processing claims.

Visit Lovell Safety at the PIA Long Island RAP - Wednesday, May 4, 2016

Come visit Lovell Safety at the PIA Long Island RAP - Wednesday, May 4, 2016

Winter Storms and Employee Safety

Within the next few months we will be faced with the threat of severe winter storms hitting the New York area. We at Lovell Safety Management Co., LLC saw an increase in the number of employee injuries due to last year’s severe winter weather. Now is the perfect time to spend a few minutes with your employees discussing their safety during these storms. Winter storms create a variety of hazards and can have lingering impacts on everyday tasks and work activities.

Learning about how to prepare for a winter storm and avoid hazards when they occur will help keep you safe during the winter season.

Frostbite and Hypothermia

Frostbite is a severe reaction to cold exposure that causes freezing in the deep layers of skin and tissue. Frostbite can cause permanent damage. It is recognizable by a loss of feeling and a waxy-white or pale appearance in fingers, toes, nose, or ear lobes.

Hypothermia occurs when the body temperature drops to less than 95°F. Symptoms of hypothermia include uncontrollable shivering, slow speech, memory lapses, frequent stumbling, drowsiness, and exhaustion.

To avoid frostbite and hypothermia, take frequent breaks and drink plenty of fluids (avoiding ones with caffeine or alcohol).

Dressing Properly for the Cold

Wear at least three layers of loose fitting clothing. Layering provides better insulation.

o   An inner layer of wool, silk or synthetic material to keep moisture away from the body.

o   A middle layer of wool or synthetic to provide insulation even when wet.

o   An outer wind and rain protection layer that allows some ventilation to prevent overheating.

Use a knit mask to cover your face and mouth. A hat that covers your ears will help keep your whole body warmer. Also, insulated and water proof boots gloves.

Walking safely on snow and ice

Whenever possible, clear walking surfaces of snow and ice and use salt or its equivalent. In addition, the following precautions will help reduce the likelihood of any injuries:

• A pair of well-insulated boots with good rubber treads is a must for walking during or after a winter storm.
• Take short steps and walk at a slower pace so you can react quickly to a change in traction.
• Be on the lookout for vehicles that may have lost traction and are slipping toward you. Be aware that approaching vehicles may not be able to stop at crosswalks or traffic signals.
• At night, wear bright clothing or reflective gear, as dark clothing will make it difficult for motorists to see you.

Shoveling Snow

Shoveling snow can be a strenuous activity and can create the potential for exhaustion, dehydration, back injuries, or heart attacks. Wearing the proper footwear, adequate layers of clothing, and sunglasses (during the day) is a must.

Workers should warm up, scoop small amounts of snow at a time, push the snow instead of lifting where possible, and use the proper form if lifting is necessary. Use power blowers whenever possible.

Stranded in a vehicle during a winter storm

Stay in the vehicle. You may become disoriented and lost in blowing and drifting snow. Display a trouble sign by hanging a brightly colored cloth on the radio antenna and raising the hood.

Turn on the vehicle's engine for about 10 minutes each hour and run the heat to keep warm. Beware of carbon monoxide poisoning. Keep the exhaust pipe clear of snow, and open a downwind window slightly for ventilation.

Watch for signs of frostbite and hypothermia. Do minor exercises to keep up circulation. Use newspapers, maps, and even the removable car mats for added insulation until help arrives.

Work Zone Traffic Safety

Workers being struck by vehicles or mobile equipment lead to many work zone fatalities or injuries annually. Drivers may skid, or lose control of their vehicles more easily when driving on snow and/or ice covered roads. It is therefore, important to properly set up work zones with the traffic controls identified by signs, cones, barrels, and barriers, to protect workers. Workers exposed to vehicular traffic should wear the appropriate high visibility vest at all times, so that they can be visible to motorists

Removal of Downed Trees

Clearing downed trees is a critical job during a winter storm. When winter storms occur, downed trees can block public roads and damage power lines. Emergency crews are often sent out to clear downed trees during a winter storm. Potential hazards include:

•       Electrocution by contacting downed energized lines or contacting broken tree limbs in contact with fallen lines.
•       Falls from trees.
•       Being struck or crushed by falling tree limbs or ice.
•       Being injured by equipment such as chain saws and chippers.

Proper protective equipment should be worn by workers using chainsaws and chippers. Only appropriate power equipment that is built to be used outdoors and in wet conditions should be used. It is important that all equipment is well-maintained and functioning correctly in order for use. In addition, all equipment should have proper guarding, working controls, and other safety features as installed by the manufacturer.

Clearing Snow from Roofs and Working at Heights

There have been16 fatalities in the past 10 years due to employees clearing snow from roofs. Following a winter storm, workers should employ standard protections when working at heights and should also be aware of the potential for unexpected hazards due to the weather. Employers should provide and ensure the use of fall protection and provide and maintain ladders. In addition, workers should use caution around surfaces that have been weighed down by snow, as they may collapse.

Company owners, supervisors and employees all play a key role in preventing employee injuries. Owners are responsible for providing a safe and healthy workplace, the needed tools, protective equipment and training. Supervisors must be empowered to discipline employees for at risk behavior and employees must do their job safely.

We all need to take responsibility for safety and the prevention of work site injuries. Safety, especially during winter storms, must be an integral part of the way we work. That is the only way to create a truly safe and healthy workplace.

For further information on winter storm safety:

https://www.osha.gov/dts/weather/winter_weather/index.html

Thanksgiving Greetings from Lovell Safety Management Co., LLC

From all of us at Lovell Safety Management Co., LLC we wish you a  happy Thanksgiving.

OSHA 10 Hour in Construction Course in Rensselaer, NY

To aid in your compliance with the various Federal, State and City regulations requiring this training, the LSM safety department is once again offering the OSHA 10 Hour Course.  The course is provided by our OSHA certified instructors. Each employee who successfully completes the program will receive a certification card from OSHA.

Pre registration is required. Please see attached brochure for details.

Lovell Safety Management Pays Dividends.

SIF Rate News from Lovell Safety Management for Safety Group #140

Dividend News from Lovell Safety Management

Great news from Lovell, Dividend Numbers are up from last year.

Our Representatives..

Our representatives not only educate your employees and managers on safety issues, but also assist your staff in making sure that they’re compliant with all of the many regulations. Lovell Safety has representatives that specialize in different areas such as preventing injuries, promoting safety, managing current injuries, reducing cost and processing claims.

Labor Day Message from Lovell Safety Management Co., LLC

Dividend News from Lovell Safety Management.

OSHA Training August 13 & 14, 2015 Whitesboro, NY

To aid in your compliance with the various Federal, State and City regulations requiring this training, the LSM safety department is once again offering the OSHA 10 Hour Course.  The course is provided by our OSHA certified instructors. Each employee who successfully completes the program will receive a certification card from OSHA.

Pre registration is required. Please see attached brochure for details.

Independence Day Message from Lovell Safety Management Co., LLC

Dividend News from Lovell Safety Management.

With over 75 years of experience we'll always have your back.

Memorial Day Message from Lovell Safety Management Co., LLC