The Intersection of Workers’ Compensation and OSHA: Look Both Ways Before Crossing
In many ways, Workers’ Compensation (WC) and the Occupational Safety and Health Administration (OSHA) are very different. WC is a statutory compensation scheme designed to limit an employer’s liability in exchange for more expedient payment of medical expenses, wage replacement, and death benefits. Most of these individual state-based compensation acts were in place long before OSHA was created with the OSH Act of 1970. OSHA, on the other hand, is part of the U.S. Department of Labor and was created to assure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance. Compliance with OSHA standards is often addressed by safety professionals in a proactive manner and is a focus regardless of whether or not an accident occurs. WC is often comprised of risk management personnel and takes the stage once something goes wrong and a worker is injured. Understanding and creating a dialogue where WC and OSHA intersect can prevent injuries and reduce costs – goals everyone can appreciate.
What constitutes an injury or illness differs between the two programs. In the OSHA context (and, in particular, when determining whether or not to record an injury or illness on an OSHA 300 log), a work relationship exists when there is an exposure in the work environment. For the most part, all injuries and illnesses on an employer’s premises are presumed work related and work need only contribute to or aggravate the condition to establish an OSHA work relationship. WC may take a more limited view – most states require some nexus between the work performed and the injury or illness (although the degree of connection required may vary from state to state).
Injury reporting requirements under WC and OSHA differ as well. Under OSHA, an employer’s obligation to report certain injuries begins to run as soon as the injury occurs. For example, employers are required to report any fatality to OSHA within eight hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours. But, employers are required to report nothing else. Unlike OSHA, all WC injuries should be reported to your carrier, regardless of severity or treatment. In some states there are waiting periods before benefits begin. Also, a compensable WC injury does not necessarily equate to an injury or illness that must be recorded on an OSHA 300 log.
But what if an injury also results in an OSHA citation? Particularly in the current culture of OSHA enforcement, this intersection can have immediate and long-term implications. Simply paying a citation where there is a corresponding WC injury could result in increased benefits owed in the WC matter in California, Illinois, Kentucky, Massachusetts, North Carolina, Missouri, Ohio, Utah, and Wisconsin. Benefits owed could be anywhere from 15 percent to 50 percent more, depending on the state. Further, the citation classification does not have to be willful or serious in many states for the increased benefits to be applicable. Increased WC payments can impact experience modification ratings (EMRs), increasing insurance premiums. Likewise, accepting a citation as issued can pave the way for a later repeat or willful violation and can also negatively impact premiums regardless of the WC payment. Other potential damaging implications of accepting OSHA citations include use of the citation in a related civil matter, loss of insurance coverage, lost business opportunities, and even damage to public image.
Many of these costs can be reduced and avoided altogether by understanding how OSHA and WC impacts the other. This includes ensuring safety and risk management teams have a regular and open dialogue to foster a strong organizational culture of safety. Discuss near misses. Utilize toolbox talks. Identify and correct workplace hazards. Enforce the use of personal protective equipment. Conduct regular safety audits to make sure your program is working for you. Lastly and most importantly, discuss with counsel how citations might impact your organization, and strategize with counsel to minimize any further risk, in the event of an unfortunate event of an injury involving a citation.