OSHA and WC –
Regulations affecting Drug Testing, Safety Issues
and Injury/Illness Reporting Requirements
Presented by:
Denise Greathouse
Michael Best & Friedrich LLP
OSHA Update
Rulemaking –
Fatality/Hospitalization/Amputation Reporting
 As of January 1, 2015 - Employers must notify
OSHA of:
 Work-related fatality within 8 hours
 Work-related in-patient hospitalization, amputation or loss of an eye
within 24 hours
 Prior rule required employer to notify OSHA
within 24 hours of:
 Work-related fatality
 In-patient hospitalizations of 3 or more employees
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Rulemaking –
Fatality/Hospitalization/Amputation Reporting (cont’d)
 OSHA claims that the purpose is to engage with more employers.
 The new reporting requirement has drastically increased OSHA’s
workload – 200-250 reports per month.
 So they developed … a system of “triaging” reports for inspection
necessary.
 Current system falls under 3 categories:
 Reports requiring inspection (fatalities, amputations, etc.)
 Reports fit for “rapid response investigation” – RRI
 Reports not covered by rule
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Rulemaking –
Fatality/Hospitalization/Amputation Reporting (cont’d)
 Inspection for sure where there is a:
 Fatality
 Hospitalization of two or more employees
 SVEP
 NEP/LEP
 Imminent danger
 Or other aggravating factors
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Rulemaking –
Fatality/Hospitalization/Amputation Reporting (cont’d)
 Inspection potentially where (combination):
 Repeat offenders
 History of multiple injuries
 Referral
 Whistleblower complaint pending
 Amputation
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Rulemaking –
Fatality/Hospitalization/Amputation Reporting (cont’d)
 RRI call/letter are similar to phone/fax
Investigations
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Five-day response time – in writing
Posting / Certification
“Non-Mandatory Investigative Tool”
“Detailed description”
Witness statement details
Root cause analysis
“Recommended corrective actions”
Actions taken/root causes addressed
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Non-Mandatory Investigative Tool
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Posting OSHA Notification
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Rulemaking –
Fatality/Hospitalization/Amputation Reporting (cont’d)
 Problems/awareness points when responding to
OSHA’s RRI call/letter
 Attorney-client/attorney work product privilege
 Root cause analysis
 Witness identity/statement disclosure
 Use of form v. own form / document
 Abatement “recommendations”/
“corrective action” taken – ammunition
for OSHA in future (willful)
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Rulemaking –
Fatality/Hospitalization/Amputation Reporting (cont’d)
 In March, 2016, OSHA published a “clarifying
memo” with new developments
 Clearer guidance in event of failure by employers to
provide adequate response
 Increase in fines for failure to timely report serious
injuries -- $1,000 to $5,000 (area directors have
discretion to issue the maximum of $7,000)
 Monitoring inspection of closed RRI by random
selection of closed investigations
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Hypothetical Scenario 1
Following the partial amputation and surgery, the company reported the
injury to OSHA. The company provided OSHA with its initial investigation
notes and findings, indicating that this was a unique circumstance in which
the piece of equipment that caused the injury had been improperly loaded
on the pallet by a third party. Is OSHA more likely to perform an inspection
or a Rapid Response Investigation?
 Inspection.
 Rapid Response Investigation.
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Hypothetical Scenario 2
An employee suffered an arm injury while attempting to move a large trailer
along a production line. Due to a “spotter” not being in the correct location,
a second trailer was improperly moved toward the trailer the injured
employee was working on. The injured employee’s arm was crushed and
severely broken while attempting to keep the trailers from striking each
other. The injured employee was taken to the hospital, but released the
same day after a short surgery to repair the arm. The spotter was found to
be at fault for not following procedures. Do you have to report the injury to
OSHA?
 Yes
 No
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Hypothetical Scenario 3
An employee injured his thumb while working on a drill press. The
investigation revealed that the employee was attempting to move an item
with his right hand when the glove on his left hand got caught in the drill.
The employee was not using the guard on the equipment because the
equipment required regular adjustments. The thumb was severely injured,
but not severed. The employee was taken to the hospital, and the
employee decided, based on the doctor’s advice, to partially amputate the
finger because it was no longer useful. Do you have to report the injury to
OSHA?
 Yes, because it was in-patient hospitalization
 Yes, because it was an amputation
 No
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Hypothetical Scenario 3
The employer reported the injury to OSHA. What is the outcome?
 OSHA performs inspection.
 OSHA performs Rapid Response Investigation.
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Hypothetical Scenario 4
 Employee crushed his finger while operating a piece of equipment at
work. At the time of the injury, it was not an amputation. The employee
was not admitted to the hospital, and he was immediately released from
the emergency room with work restrictions. Four days after the incident,
the finger continued to cause the employee problems. The employee
went back to the doctor, and it was decided that the finger needed to be
amputated. Do you have to report this amputation to OSHA?
 Yes
 No
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Rulemaking –
Electronic Injury/Illness Reporting
 Final Rule became effective January 1, 2017
 Requires electronic submission of injury and
illness data by some employers
 Does not change employer’s obligation to
complete and retain injury and illness records
 Some data will be posted on the OSHA Website
 OSHA believes public disclosure of data
will “nudge” employers to improve
workplace safety
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Rulemaking –
Electronic Injury/Illness Reporting
 Anti-Retaliation Protections
 Employer’s required to inform employees of:
 Right to report work-related injuries and illnesses
 Procedure for reporting must be reasonable
 Procedure must not deter or discourage employees
from reporting
 Protections incorporate existing statutory
prohibition on retaliating against employees
 Effective December 1, 2016
Rulemaking –
Electronic Injury/Illness Reporting
 Anti-Retaliation Protections
 Provides OSHA an avenue to investigate
retaliation without employee complaint and
cite employers for alleged retaliation.
 Texo Abc/Agc Inc case –
 Suit argues that the anti-retaliation provisions are
unlawful and exceed OSHA’s statutory authority
Rulemaking –
Electronic Injury/Illness Reporting
 Targets:
 Safety incentive programs
 Post-accident drug testing
 Reporting Requirements
 U.S. Steel case –
 Suit to enjoin employer’s immediate injury reporting rule
 OSHA request: prohibition of
rule requiring reporting within
fewer than 7 days
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Federal Civil Inflation Adjustment Act
Improvements Act of 2015
The below table reflects the DOL's inflation adjustments to the civil money
penalties for violations of certain requirements:
Description of
Violation
Before
August 1, 2016
After
August 1, 2016*
Effective
January 13, 2017**
$7,000
per violation
$12,471
per violation
$12,675
per violation
Failure to Abate
$7,000 per day
beyond the
abatement date
$12,471 per day
beyond the
abatement date
$12,675 per day
beyond the
abatement date
Willful or Repeat
$70,000 per
violation
$124,709 per
violation
$126,749 per
violation
Serious
Other-Than-Serious
Posting Requirements
* catch-up adjustment
** 1st annual adjustment for inflation
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OSHA’S CHANGES AND THE
RECENT WISCONSIN WORKER’S
COMPENSATION CHANGES
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Wisconsin Worker’s Compensation Law Changes
 Law passed by Wisconsin Legislature on
February 16, 2016
 Three changes that should impact
how Human Resources and Safety
Professionals manage worker’s
compensation cases
 Violations of Employer Drug and Alcohol
Policies
 Misconduct or Substantial Fault
 Pre-Existing Condition
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Violations of Employer Drug and Alcohol Policies
 If an employee violates an employer policy
against drug or alcohol use
And
 The violation causes the employee injury
Then
 Neither employee nor employee’s
dependents may receive any
compensation under law
 No benefits for temporary or permanent
disability
 Previously this was a 15% reduction in
benefits
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Violations of Employer Drug and Alcohol Policies
 Does not eliminate duty of the employer’s
worker’s compensation insurer to pay for
medical cost for treating employee injury
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Violations of Employer Drug and Alcohol Policies
 Employer’s should expect:
 Challenges by employees that policy was not
clear
 Claims that the employee did not violate the
policy as written
 Claims that the drugs and/or alcohol did not
cause the injury
 Claims that the employee never
received a copy of the policy
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Violations of Employer Drug and Alcohol Policies
 Employers will need to:
 Prove that drugs and/or alcohol caused the
employee’s injury
 Document the employee’s behavior leading
up to and after accident
 Have up to date policies and procedures
for drug and alcohol use and testing
 Have proof employee received or was
aware of the policy
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Misconduct or Substantial Fault
 Injured employees may be denied temporary
disability benefits if:
 Suspended or
 Terminated
Due to
 Misconduct; or
 Substantial fault
 In the past, a terminated employee
would be paid disability benefits
while not working
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Misconduct or Substantial Fault
 As defined by Unemployment Compensation
Statutes and case law in State of Wisconsin
 Unemployment Compensation -108.04(5) &
108.04(5g)
 Misconduct – behavior shows a willful and
substantial disregard of the employer's interests or is
not within the standards of behavior employers have
a right to expect of all employees
 Substantial Fault – violation of a requirement of the
employer by acting or failing to act when the action
or inaction was within the employee’s control and
the violation does not rise to the level of misconduct
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Misconduct or Substantial Fault
 Employer may choose to terminate/suspend
the employee and deny him/her benefits for:
 Safety violations
 Ignoring specific directives of employer
 Post-accident positive drug test results
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Misconduct or Substantial Fault
 Update disciplinary rules and
procedures
 Be sure that violations of certain policies
meet the law’s definition of misconduct
and/or substantial fault
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Pre-Existing Condition
 Prior rule:
As long as the work-related injury at the current
employer’s workplace “precipitated, aggravated
and accelerated the [pre-existing] condition beyond
its normal progression,” the employer would be
responsible for the entire injury, including the preexisting condition
 Only exception was if the employee had
been previously assessed a specific
percentage of permanent disability
associated with the pre-existing condition
in a prior workplace injury
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Pre-Existing Condition
 New Rule:
 May now submit evidence that employee’s
permanent disability was only cause
partially by an accidental injury sustained in
the course of his or her employment
 If a doctor concludes that a percentage
of the disability was caused by other
factors, the Department may reduce the
employee’s benefit award
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Pre-Existing Condition
 Incentive for employers to engage in more
thorough screening for employee pre-existing
conditions
 ADA prohibits pre-employment inquiries, but allows
post-job offer screening prior to commencement of
employment
 Employers should screen for pre-existing
conditions
 Provide doctors with that information
so an apportionment decision can be
made early in a case
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Questions?
Disclaimer
This presentation is intended for general information purposes only and does not
constitute legal advice. Specific questions and requests for legal advice should be
addressed to legal counsel.
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