Current through Register Vol. 2022, No. 3, March, 2022
Criteria for Identifying
Health and Safety Division of the Arkansas Workers' Compensation Commission
(the Commission) pursuant to - Ark. Code Ann. §
shall identify extra-hazardous employers based on criteria established by the
Commission in this rule. Each employer identified, continued, or monitored
shall have the right to a review of the findings of the Division by the
Director of the Division. In addition, each employer identified, continued or
monitored shall have the right to request a hearing before the Commission to
contest the findings of the Division.
The first incident in any calendar year period resulting in lost
time in accordance with Ark. Code Ann. §
shall be exempt from inclusion in any calculations which result in an employer
being identified as an extra-hazardous employer.
The following criteria shall be used to
determine extra-hazardous status:
Number of Incidents ÷ Number of Employees X 100 =
1. Number of Incidents - Injuries which
result in lost time, as set about in Ark. Code Ann. §
shall be deemed as an incident for purposes of this rule.
Number of Employees - Maximum number of
employees by calendar year and correlated per multiple Standard Industrial
Classification (SIC) Codes when applicable.
The Rate is divided by the expected injury rate for the employer
published by the Bureau of Labor Statistics (BLS), or if not available from the
BLS publication, other suitable sources approved by the Commission. If the
threshold level exceeds those that may reasonably be expected in the employer's
business, industry, or agency, the employer is identified as extra-hazardous.
Prior to final identification, the employer will be given an opportunity to
verify employment and injury data.
The threshold level, as used in the formula, shall be established
within workload and staff resource limitations.
Upon a determination by the Division that an employer may be classified as
extra-hazardous, the Division shall notify the employer and the employer's
workers' compensation insurance carrier. The notice shall be sent to:
1. the employer by certified mail at the
employer's principal place of business; and
2. the loss control department or equivalent
of the employer's workers' compensation insurance carrier of record in the
The notice shall be in writing and shall inform the employer of the following
1. state that the employer has
been identified as an extra-hazardous employer;
2. state the facts on which the
identification of the extra-hazardous employer is based;
3. outline the steps the employer is required
to take as an identified extra-hazardous employer;
4. inform the employer of the penalties for
failure to take steps required under the Extra-Hazardous Employer Program.
A. An employer that receives notification
11(A) of this
Rule must obtain a safety consultation within thirty (30) days from the
Arkansas Department of Labor, the employer's insurance carrier, or another
professional source approved by the Division for that purpose.
B. Upon request, the Division shall provide a
list of approved professional sources.
C. The safety consultant shall conduct a
hazard survey at each appropriate job site and prepare a hazard survey report.
The report shall be in writing in a format prescribed by the Commission and
shall include a description of any hazardous conditions or practices
identified, along with recommendations for controlling the identified hazardous
conditions or practices.
hazard survey report (s) and any attachments shall be filed by the safety
consultant with the Clerk of the Commission.
E. If the initial consultation and report
cannot be completed in the time allowed under this section, the employer may
apply in writing to the Division for a waiver of the time requirements. In no
case shall the initial consultation exceed 60 days following the date of
Formulation of Accident Prevention Plan
Employers that receive notification under
within 30 days of the date of the safety consultants initial report develop,
with the assistance of the same or other approved professional source (as
referred to in Section
), an accident prevention
plan. This plan must be consistent with accepted industry practices if
recognized hazards exist that are causing or are likely to cause death or
serious physical harm to employees. This plan must also address each hazard
and/or unsafe practice identified in the report. The accident prevention plan
shall include, but need not be limited to, the following:
1. a management component with a written
safety policy statement and assignment, by position or title, of safety
responsibilities and authority;
an analysis component which includes identified operational and safety
3. a safety program
recordkeeping system component;
a safety and health education and training component;
5. a safety audit/inspection component which
includes the identification, by title or position, of a qualified person(s) to
conduct the audits/inspections;
an accident investigation component to identify the cause factors of injuries;
7. a periodic review and
revision of the safety program and operational procedures component to
determine effectiveness of abatement measures.
B. An implementation time line, not to exceed
6 months after the formulation of the plan, shall be developed and included
with the plan.
C. If the employer
disagrees with any or all of the plan, the employer shall sign the plan and
attach a statement containing the specific reasons for disagreement to the
plan. The Division will review the areas of disagreement and notify the
employer and the safety consultant of the decision on each area of
D. The employer's
signature is understood to exclude those areas of the plan for which there is a
stated disagreement pending a final determination by the Division.
E. The Division may direct the employer to
begin implementation of any or all parts of the plan that are not subject to
the employer's disagreement. The time lines specified in the plan shall remain
in effect for those parts of the plan the employer is directed to implement.
During the review of the plan by the Division, the Division may direct the
employer and the safety consultant to implement a procedure in lieu of the part
of the plan that is in disagreement.
F. The employer shall be responsible for
filing the accident prevention plan with the Division within 30 days of the
date of the consultant's initial report.
G. Reference material for the development of
an accident prevention plan may be obtained from the Division.
Inspection by the Division
months after the formulation of the employer's accident prevention plan, or
earlier when requested by the employer with the concurrence of the professional
source, the Division shall conduct a follow-up inspection to ensure compliance
with, and the effectiveness of, the accident prevention plan at the employer's
B. The inspection shall
be conducted and completed during normal work hours.
C. The employer shall allow the Division
access to the employer's premises, including, remote job sites, and employees
during normal work hours to conduct the follow-up inspection. An employer who
without good cause refuses to allow the Division access to the employer's
premises may be served with an order of the Commission demanding such access.-
Failure to comply with the Commission order will subject the employer to
penalties and sanctions as provided in Ark. Code Ann. §
(5) (C) .
D. At the time of the inspection, the
Division may consider as evidence of compliance information which includes, but
is not limited to, visual verification, written policies and procedures,
attendance rosters for training programs, employee interviews, and purchase
orders or receipts for equipment or services necessary to support the accident
Report of Follow-Up Inspection
A. The employer, the safety consultant, and
the employer's workers' compensation insurance carrier, shall be provided
copies of the report of the follow-up inspection by the Division.
B. The report shall be in writing and shall
specify whether the employer has, or has not, implemented the accident
prevention plan or other acceptable corrective measures approved by the
If the employer is
found not to have implemented the accident prevention plan, the report shall
1. a notification that the
employer's extra-hazardous employer status is being continued;
2. a list of the specific areas of the
accident prevention plan which have not been implemented;
3. a list of the specific actions required of
the employer to correct the identified deficiencies.
"Extra-Hazardous Employer" Status
An employer shall be removed from extra-hazardous employer status
if, upon inspection the Division determines that the employer has complied with
the terms of the accident prevention plan.
Extra-Hazardous Employer Status
A. An employer shall remain on
extra-hazardous employer status if the employer is found under Section
V of this title (relating to
Follow-Up Inspection by the Division) to have failed or refused to implement an
accident prevention plan or other suitable hazard abatement measures as
approved by the Division.
B. If an
employer is not certified for removal from extra-hazardous employer status
after the follow-up inspection, the employer shall take the actions specified
in the follow-up inspection report, or other suitable hazard abatement measures
as approved by the Division, as a condition of removal from extra-hazardous
shall file a progress report with the Division every 60 days until the employer
has been removed from extra-hazardous employer status. The report shall
1. For Subsection (A) of this
section only, the list of areas of the accident prevention plan which were
identified as not being fully implemented at the time of the follow-up
2. additional areas
identified in the follow-up inspection report; and
3. the steps which are being taken to address
D. After the
required corrective actions have been taken, the employer shall notify the
Division and request a reinspection. The request for reinspection shall be made
no later than six months after the date of the follow-up inspection.
The Arkansas Workers' Compensation Commission encourages all
interested parties to participate in promulgating changes to the Rules
governing the extra-hazardous employer program. Those who desire input into
said changes should submit them in writing to the Division. After analysis, the
Commission may incorporate such changes to the Rule, following public comment,
pursuant to Ark. Code Ann. §
Amended August 8, 1995, Effective August 29,