Is your OSHA program discriminatory? Michael Davis, senior vice president, risk control services for Lockton, Dr Mary Reaston, president-founder, Emerge Diagnostics, and risk management consultant Dave Keyser explain how you can counter false claims and unsafe behaviors through non-discriminatory and integrated risk management programs.
Reducing injuries and creating a safe work environment are essential to lowering costs and increasing productivity. More companies are developing incentive programs to promote safe behavior. However, problems arise when these programs are discriminatory against the workers they are designed to protect.
A program is discriminatory when it does not encourage a safe work environment but instead discourages employees from reporting accidents when they occur. In accordance with the standards set by the Occupational Safety and Health Administration (OSHA) there are five steps organizations can take to establish an effective and nondiscriminatory risk management program:
• Recognize discriminatory programs;
• Understand why unsafe behaviors occur;
• Integrate incentives into risk management programs;
• Refer to OSHA legislation; and
• Use baseline testing to combat false claims.
RECOGNIZE DISCRIMINATORY PROGRAMS
The first step in determining whether your OSHA program is discriminatory is determining what behaviors cause your employees to be penalized or rewarded. Your program could be considered discriminatory if employees are penalized for:
• Having injuries,
• Reporting injuries, or
• Violating safety rules.
Giving rewards for not having accidents is also considered discriminatory.
UNDERSTAND WHY UNSAFE BEHAVIORS OCCUR
Based on psychologist Abraham Maslow’s hierarchy of needs theory, the need for safety is the second most important after the basic needs for food, water, and shelter. However, unlike these physiological needs, human beings’ knowledge related to safety is not instinctive. Security for our body, property and resources is learned behavior.
Employees won’t sacrifice their safety without good reason. When they do engage in unsafe behaviors, it’s for reasons such as trying to please their boss or the customer, or just not recognizing the hazard. Safety consultant Dan Petersen has said that “it is the way that people are measured and rewarded and the culture of the organization that leads unsafe behavior”.
This means it is up to the company to reduce the number of unsafe behaviors. They can do this by integrating the appropriate incentives into risk management programs that encourage safe behaviors, and recognize false claims.
INTEGRATE INCENTIVES INTO RISK MANAGEMENT PROGRAMS
Incentives are never a substitute for a well-structured risk management program. They may reduce the number of injury reports, but they don’t promote safe behavior.
It is more effective to integrate incentives into the management program of your operation. More important than merely integrating incentives, it is vital that incentives are given for the appropriate actions.
Below is a chart identifying actions that encourage safe behaviors, and those that do not encourage safe behavior and are considered discriminatory by OSHA. According to OSHA and the Fairfax Memo, giving incentives for not reporting and not having accidents can lead to a discriminatory program.
REFER TO OSHA LEGISLATION
Reporting an injury is a protected activity under the law, and several pieces of legislation protect this right. The Fairfax Memo, taking effect in 2012, targeted (i) employers who have implemented safety incentive programs that discourage workers from reporting injuries; (ii) employers who act on policies that require disciplinary action against employees who are injured on the job; and (iii) employers who violate injury reporting guidelines, or violate a safety rule. Safety rules violations include:
• Vague rules such as ‘maintain situational awareness’ or ‘work carefully’.
• Was the deviation from the procedure minor or extensive, inadvertent or deliberate?
• Was there a reasonable basis for decision?
• Was the discipline disproportionate to the act?
The rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report. In a recent case, the safety manager for Shaw Group was charged and convicted of major fraud against the US. During his tenure, he under-reported accidents at TVA nuclear plants in Tennessee and Alabama. He deliberately falsified records of workplace injuries and used the false injury reports to claim more than $2 million in safety bonuses. In April, he was sentenced to six years in prison followed by two years of probation.
The Shaw Group used a purely rate-based incentive program that encouraged workers to conceal injuries by rewarding them for not having injuries, rather than encouraging safe practices. Organizations should establish a comprehensive injury and illness prevention program that addresses underlying safety issues. By finding and fixing hazards, employers can promote real safety in the workplace.
USE BASELINE TESTING TO COMBAT FALSE CLAIMS
If a claim is one where the injury occurred during the course and scope of employment then a false claim is just the opposite. A claim is false if it is not work-related, meaning it did not occur during the course and scope of employment, or the employee had a preexisting condition that was not worsened by work.
To combat false claims, companies should adopt baseline testing as a proactive risk management process. A baseline test such as EFA (electrodiagnostic functional assessment) is an effective way to recognize and reduce false claims and prevent discrimination through objective diagnosis. For example, for many years audiometric testing has been used with pre- and post-tests to document hearing loss prior to noise exposure. It is not only recognized by OSHA but is also spelled out in many state workers’ compensation statutes.
Baseline testing enables the employer to accept only claims that are AOE/COE (arising out of employment/in the course of employment). In order to be effective and hold up in court, baseline testing must be evidenced-based, job-related and consistent with medical necessity. It will not identify a disability and must be specific for the parameters measured.
For example, soft tissue injuries (aka musculoskeletal disorders, or MSD) are among the leading cost drivers for work-related injuries. Baseline testing to identify MSD injuries needs to include specificity for physiological parameters tested and should include:
• Electromyography (EMG);
• Range of motion (ROM); and
• Functional assessment (FA). According to a study by the American Physical Therapy Association, traditional functional assessments are not legally defensible and do not meet the criteria established by Daubert, if their methods of determining effort include Waddell’s signs (coefficient of variation, ratio of heart rate and pain, subjective documentation or observation of pain behavior magnification). Tests such as the EFA do meet Daubert requirements and are legally defensible.
When establishing a baseline testing plan the following steps should be included:
1. Establish written job descriptions that identify the essential functions and the physical demands.
2. Develop testing protocols based on the essential functions of a position as outlined in the job description.
3. Test appropriate groups of the existing workforce with a fitness-for-duty evaluation and then store the unread data as the baseline. The data should not be evaluated or read until after an injury occurs.
4. After an injury occurs, perform test again and compare with baseline.
CASE STUDY RESULTS
A US-based global transportation leader implemented its EFA-soft tissue management (STM) program in October 2011. This testing prevented discrimination and allowed false claims to be refused. In addition, if there was no claim, then there was nothing to enter on to the OSHA 300 log.
The corporate policy in the case study was to complete baseline testing for all drivers. Appropriate consents are signed by the drivers before the baseline testing is done stating that if there should be a work-related soft tissue injury, the employee agrees to participate in the post-loss testing.
To be successful a good baseline test is made up of five important legal requirements, including that:
• The evaluation is objective and repeatable;
• Tests must be non-load bearing and non-invasive;
• It is consistent with job requirements;
• It is administered by qualified personnel; and
• The appropriate consent forms are signed prior to beginning the program.
As of March 2013 4,263 baselines were completed in locations such as Texas, California, Indiana, and Utah. The average cost for a sprain/strain claim for the company is $14,332. The EFA-STM program showed a 40 percent decrease in the frequency of soft tissue claims as well as savings in excess of $601,944 in direct costs in the first year of the program.
To date, there have not been any workers’ comp claims filed for soft tissue injuries that had an EFA-STM baseline test and where the test and medical evaluation proved there was no correlation to AOE/COE. Several claims were denied immediately and multiple other workers did not return or pursue the claims.
Improvements in safety performance cannot be accomplished by discouraging the reporting of accidents through the use of incentive programs. True safety improvement happens once we understand why unsafe behavior occurs, incentives are integrated into the risk management program to encourage safe behaviors, and false claims are countered using baseline testing.
Incentive programs that OSHA believes are discriminatory may reduce the number of injury reports, but do nothing to encourage a safe workplace or stop false claims. Baseline testing using such tools as the EFA-STM can help identify those cases where false claims are being submitted.
EFA baseline testing is:
• Non-loading and non-invasive;
• Consistent with job requirements;
• Administered by qualified personnel;
• HIPAA-compliant; and
• Meets Daubert criteria.
OSHA, Michael Davis, Lockton, Mary Reaston, Emerge Diagnostics