NOT EVERY NEW RULE SLATED FOR DECEMBER 1, 2016 WAS HALTED: THE NEW OSHA ANTI-RETALIATION RULES ARE EFFECTIVE TODAY

THE BACKGROUND

Back in May, the Occupational Safety and Health Administration (OSHA) issued a final rule requiring certain employers to electronically submit data from their work-related injury records to OSHA. This new rule, which takes effect January 1, 2017 also included anti-retaliation provisions intended to prevent employers from discouraging employees from reporting workplace injuries and illnesses. Here is the OSHA announcement of the “Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses Addressing Employer’s Compliance Obligations.”

OSHA’s initial plan was to begin enforcing the new anti-retaliation provisions in August, but due to litigation, the deadline was pushed back to December 1, 2016.  On this past Monday, a Texas federal judge refused to block the anti-retaliation provisions, rejecting a request by numerous business groups for a national injunction while their legal challenge plays out. Covered employers (defined below under “Looking Down The Road”) must take immediate steps to comply with the new anti-retaliation provisions.

HOW TO COMPLY TODAY WITH THE NEW ANTI-RETALIATION PROVISIONS

• Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. This obligation may be met by posting the OSHA Job Safety and Health — It’s The Law worker rights poster from April 2015 or later (https://www.osha.gov/Publications/poster.html).
• An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.
• An employer may not retaliate against employees for reporting work-related injuries or illnesses

 EASY, RIGHT? NOT SO FAST

The final rule does not specifically prohibit employers from performing drug tests on employees or implementing safety incentive programs.  Instead, it prohibits employers from using drug-testing and safety incentive programs in a way that deters or discourages employees from reporting workplace incidents.

No More Post Incident Drug Testing: According to OSHA, a blanket policy that requires all employees to submit to drug testing following a workplace safety incident violates anti-retaliation protections. This anti-retaliation prohibition does not change or impact the Department of Transportation Commercial Driver License post-accident drug/alcohol testing requirement. The pertinent rule provides that “if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.” OSHA has also indicated that post-incident drug testing is appropriate in circumstances where employee drug use is suspected to be the cause of the incident.

No Incentive Programs That Reward for Zero Reported Injuries: OSHA is concerned that if employees are sufficiently motivated, they will under-report incidents in order to reach the incentive. OSHA is also encouraging employers to implement incentive plans that reward employees to improve workplace safety without discouraging reporting.

WHAT DO WE DO NOW?

The new anti-retaliation provisions will allow OSHA to take a more proactive enforcement role, meaning that OSHA will not need to wait until a retaliation claim is filed to issue a citation against an employer if OSHA feels that the employer is discouraging appropriate reporting. This makes compliance particularly important.  Consider the following immediate steps:

1. Update your OSHA Poster, and if you have not already done so, adopt a reasonable reporting process. Your handbook is a great place to start.
2. Mandatory post-incident drug testing policies must be revised immediately. Adopt language that links testing to a reasonable suspicion that drug use caused the incident or illness.
3. Modify any incentive programs that may be construed to discourage employees from reporting workplace accidents or illnesses.

Here is the OSHA Fact Sheet addressing the “Final Rule to Improve Tracking of Workplace Injuries and Illnesses.”

LOOKING DOWN THE ROAD

• July 1, 2017: Organizations with 250 or more employees that are currently required to keep OSHA 300 Logs will be required to submit those records as well as Forms 300 and 301 electronically. Organizations with 20-249 employees that are classified in certain high-risk industries will also be required to electronically submit OSHA 300 Logs.

For your convenience and information, the links within this Alert contain related links to the list of “certain high-risk industries.”

WE CAN HELP

At Foley & Foley we have already helped many of our clients modify their handbooks and drug testing policies to comply with these new rules.  We welcome the opportunity to help your organization do the same.

 

Understanding Human Liability Management Systems

Human liability can occur in a variety of ways.  It can range from an accounting mistake that results in a small monetary loss, to a serious workplace accident that results in a life altering injury, to tracking errors within your company’s FMLA or integrated disability management systems.  Outcomes can be improved in all aspects of the workplace by understanding human liability traps and instituting appropriate best practices. We also believe it is prudent for all employers to incorporate these fundamental strategies into their OSHA recommended Health and Safety Protection Plan.

Below is a high level outline of the fundamentals behind Human Liability Management as a method for avoiding injuries, mistakes, and improving outcomes.  This document is not intended to be comprehensive training program or targeted legal advice, but to offer a basic understanding of the theory behind Human Liability Management Systems.  It is our belief that every organization can benefit from some or all of the systems outlined in this document.

Everyone is fallible.  In our experience, the most successful organizations understand:

• Individual behavior is influenced by organizational processes and values;
• Error likely situations are predictable, manageable, and preventable;
• Events can be avoided by understanding the reasons mistakes occurred and applying lessons learned from past events;
• People achieve their highest levels of performance based on positive recognition and reinforcement;
• Leadership must equally value production and people.
• Training is a necessary part of the system, but won’t fix problems by itself.
• Sustainable improvement in human error management is not dependent solely on workers.

 

STRATEGIES FOR AVOIDING HUMAN LIABILITY AND IMPROVING OUTCOMES.

Recognize Human Error Traps

The first step to understanding human liability and improving outcomes is to identify traps. The following are common traps that directly lead to mistakes, injury or near-miss outcomes. These apply equally to every industry whether it is a manufacturing, healthcare, construction, office, or corporate settings.

• Production pressure.
• Distractions and interruptions.
• Multiple tasks.
• Bias for results (over confidence).  Thoughtless performance of tasks.
• Vague or interpretive guidance.
• First time performing task/infrequently performed tasks.
• Change of duty/off normal.
• Physical environment.

Understand Human Relations Fundamentals

The next step is to institute controls that will include and engage employees in ongoing safety/performance protocols.  Each employee must be empowered to engage in his/her own safety and/or performance.

• Self-checking.  
• Know when to stop.
• Questioning attitude. Why am I doing this?  
• Place keeping – Force to read through policy, and check sections when read.
• Effective communication – If an employee is given instructions, the employee recites or writes backs the instruction given.
• Job site review – policy/practices – snapshot of jobsite.  The employee engages in this practice every shift prior to starting work.  What are the risks present?  Can a solution be engineered to mitigate those risks?  In a corporate or office setting, this can be completed prior to starting a project.
• Meeting attendance. Employees must be engaged in their own wellbeing and success. 

These fundamentals are not limited to safety and apply equally to security, quality, and performance functions in an office or corporate environment.

Understanding Human Reliability Defenses

These are practices and policies any company can engage in to create a defense against loss.   

• Verification Practices – Peer checking. If an employee is unsure, he or she has someone to ask, “am I doing this correctly?”  
• Procedure use and compliance.  Policies and procedures must be up to date and employees must know to use them.
• Coaching (peer to peer) – Consider an observation program where employees are comfortable coaching each other. Hierarchy shouldn’t matter for effective peer coaching.
• Pre-Job Brief – Here is what we want to accomplish during this shift, or for this project, here is what we want to avoid – provide opportunity for feedback.
• Turnover – Make sure people handing off projects communicate well.

 

• Walkdowns – This is a pre-job inspection – In the manufacturing setting allow employees to review the task or project before the start of their shift or the task for barriers and problems (e.g. insufficient overhead light, missing safety barrier, obstacles preventing safe completion of task, missing element needed).  In other settings, before starting a project or shift, each employee should complete a pre-job inventory to identify barriers for successful completion of the project or task.

• Robust Barrier – Anything preventing interface with equipment employee will work on – post-its, alarms, reminders.  This will force employees to consider what they are about to do before they do it.

Developing Effective Trending

Trending is the theory that we can predict errors by trending low level mistakes that didn’t have big consequences.  The near misses are the mistakes that were caught before they resulted in a loss, or the injury that almost happened.  These are the “we got lucky” scenarios.  These offer incredible insight into areas of exposure for any company.  Each near miss is an opportunity to proactively evaluate high risk areas of liability.

• Human error reviews can pinpoint error traps, missing individual fundamentals, and defenses before errors or incidents occur.
• Effective trending needs to get inside the head of your personnel to understand what the involved personnel were thinking when the error occurred.  The purpose is not blame. It is to better understand the environment in which errors occur so that they can be eliminated in the future.
• Observation Program – Watch people to see where errors are most likely to occur. Pay attention to the culture in the department.  Every department has a subculture defined as the way staff and managers interact, sometimes this culture is the source of errors.
• Identify retraining and process improvements such as procedure quality and labeling.

Coaching

Coaching is the practice of conducting observations and comparing behaviors to existing standards and expectations.

Remember, individual behavior is influenced by leadership values.  Workers will value what owners and managers value.

The most effective managers coach regularly rather than waiting for yearly reviews.

Coaching Opportunities:  Each of these areas represents an opportunity for coaching.

• Infrequent evolution.
• High risk tasks.
• Work performed by contractors.
• Pre-job brief (observe them).
• Component manipulations.
• Morning meeting.
• Leadership meetings.
• Peer to peer coaching adds value.

Observation Program

A successful observation program enables employees to assess procedural compliance and record safety observations, and stop work that’s unsafe. An effective observation program will minimize errors by 60%.

This isn’t limited to safety.  An observation program can also assess compliance risks in a number of functions, by recording noncompliance observations, dangerous/counterproductive/risky behavior can be stopped before it results in a loss.

The following are some best practices for any observation program:

• Make Behavior Based Observations – Don’t give statements like “performance declined,” instead, give behavior based observations that identify particular behavior that can improve.  
• Make Sure All Documentation is Closed Loop – Don’t just document a problem.  Identify the problem, and then identify how it was dealt with.  This adds value because if the problem reoccurs, it is an opportunity to examine whether a different method of dealing with a problem is appropriate.  
• Make Sure Observations Are Aligned with the Performance Challenge – Stay focused on the performance being measured and offer relevant observations.
• Allow for Feedback – Allow an opportunity for feedback between the observations and outcomes.
• Not Disciplinary – Employees have to be comfortable to make reports in order for a near miss observation program to be successful.  It is not as effective if it becomes a disciplinary model, instead it should be a form of coaching for improvement rather than coaching for discipline.

Conclusion

An effective human liability assessment will present an organization with an opportunity to correct a problem before it becomes a consequential incident. Near miss reporting of “we got lucky” scenarios represent an opportunity for growth.  Coaching and observation allow employees and management to recognize and proactively manage risk.

Employers throughout the country frequently ask our lawyers how they can better manage HR-related risk. Clients have told us that the strategies outlined above in combination with our law firm’s Employment Counsel On-Call Triage Service, Diagnostic Compliance Audit Service and Handbook Preparation and Updating Service create the Iron Dome of HR-related Risk Management protection. We stand ready to help. 508-548-4888

www.foleylawpractice.com

 

Marijuana Legalization and Employer Drug Testing

Roundup on latest marijuana laws, court rulings, and trends and what all of this means for employers considering drug testing or Drug Free Workplace policies.

Recently, Oregon’s legal recreational marijuana market made its official debut, less than a year after the state’s voters legalized recreational marijuana sales. Oregon now joins Colorado and Washington as the only three states to legalize recreational marijuana sales. Voters in Alaska passed similar legislation, but the law has not yet taken effect. Recreational marijuana use is also legal in Washington, D.C., although the legalization does not extend to marijuana sales. Next year, voters in states including Arizona, California, and Maine will vote on legalizing recreational marijuana sales. Medical marijuana is currently legal in 23 states, and Washington, D.C. Read on to see how these changing laws will impact workplaces around the country.