Navigating New OSHA Rules

The Occupational Safety & Health Administration (OSHA) has made three rule changes that affect pest management companies: Two aim to protect employees from retaliation for reporting workplace injuries and illnesses; the third changes how large employers report these incidents to the agency.

Safety expert Linda Midyett of the insurance group PestSure urged pest management professionals to become familiar with the changes and to adjust practices to avoid citations for noncompliance.

POST-INJURY DRUG TESTING. Many employers have policies that require a mandatory drug test following any workplace accident. But OSHA doesn’t want employers “to put policies in place that will encourage employees to hide injuries and not report them, and blanket post-injury drug testing is one of those things that (the agency believes) creates that adverse action,” explained Midyett.

As such, the wording of written human resources policies must be changed from “you will be” to “you may be” tested for drugs following a work-related injury or illness, she said. And when employers do conduct such tests, they must identify why the person’s potential impairment could have contributed to the accident. “What’s frightening for employers in this regard is they have to make these determinations and then they have to hope that if they’re called to the carpet on it that an (OSHA) investigator’s determination would be the same,” said Midyett. OSHA has not provided guidelines for making these determinations.

Some PestSure member companies have decided not to drug test post-injury except in vehicle accidents and those involving property damage.

“It’s just too gray (of an area),” said Midyett of making determinations. A blanket policy meant everyone got tested post-injury; individual determination could lead some employees to claim unfair treatment with the Equal Employment Opportunity Commission, she added.

The rule change is effective Nov. 1 for employers with 10 or more employees.

SAFETY INCENTIVE PROGRAMS. Many employers offer incentives (bonuses, rewards) for workplaces that remain accident-free over a set period of time. As of Nov. 1, employers with 10 or more employees cannot promote such programs, which can encourage workers to hide injuries for fear of peer pressure or losing financial incentive. Instead, incentive plans should promote safe workplaces and reward employees for engaging in safety-related activities, said Midyett, who “wholeheartedly” agrees with this rule change.

“Paying someone for simply not having an accident” is not a good incentive program, she said. Companies are not required to have safety incentive programs, she added.

Both of these rule changes create a new dynamic. Before, OSHA only knew about retaliation to an employee if the employee filed a formal complaint. Now an OSHA compliance officer who audits a worksite can review the company’s policies and procedures and write retaliation citations based on these written documents, said Midyett.

ELECTRONIC REPORTING. As of Jan. 1, 2017, employers with 250 or more employees must file their yearly summaries of reportable injuries and illnesses online. Previously, employers were required to post a summary of these logs in a place visible to employees; the new online posting will be visible to the public. The electronics data submission rule is designed to “shame employers into improving worker safety and health,” said Midyett. Smaller companies are required to maintain logs and post summaries as usual.

Midyett said all three rules will be difficult to enforce and she expects some modifications to them. The rule changes are being challenged by business coalitions; one lawsuit is pending and others are expected.

Last year, OSHA expanded the list of severe injuries that must be reported to the agency. These include all work-related fatalities, inpatient hospitalizations of one or more employees, amputations (such as fingertip amputations with or without bone loss) and losses of an eye. Fatalities must be reported within eight hours of finding out about them; an inpatient hospitalization, amputation or eye loss must be reported within 24 hours. The change applies to all companies under OSHA jurisdiction, even those exempt from routinely keeping OSHA injury and illness records due to size or industry.

Consult with a safety expert to learn how these rules specifically affect your company.

The author is frequent contributor to PCT magazine and can be contacted via e-mail at anagro@gie.net.