RULE 099.00.95-001 - Rule 32 - Extra-Hazardous Employer Program

RULE 099.00.95-001. Rule 32 - Extra-Hazardous Employer Program

I. Criteria for Identifying Extra-Hazardous Employers

A. The Health and Safety Division of the Arkansas Workers' Compensation Commission (the Commission) pursuant to - Ark. Code Ann. § 11-9-409(c) 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. § 11-9-501 shall be exempt from inclusion in any calculations which result in an employer being identified as an extra-hazardous employer.

B. The following criteria shall be used to determine extra-hazardous status:

FORMULA:

Number of Incidents ÷ Number of Employees X 100 = Rate

DEFINITIONS:

1. Number of Incidents - Injuries which result in lost time, as set about in Ark. Code Ann. § 11-9-501, shall be deemed as an incident for purposes of this rule.

2. 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.

II. Notice to "Extra-Hazardous Employers"

A. 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 Commission's files.

B. The notice shall be in writing and shall inform the employer of the following provisions:

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.

III. Safety Consultation

A. An employer that receives notification under Subsection 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.

D. The 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 notification.

IV. Formulation of Accident Prevention Plan

A. Employers that receive notification under Subsection 11(A) will, 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 III), 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;

2. an analysis component which includes identified operational and safety hazards;

3. a safety program recordkeeping system component;

4. 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;

6. an accident investigation component to identify the cause factors of injuries; and,

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 disagreement.

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.

V. Follow-Up Inspection by the Division

A. Six 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 premises.

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. § 11-9-409(c) (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 prevention plan.

VI. 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 Division.

C. If the employer is found not to have implemented the accident prevention plan, the report shall also contain:

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.

VII. Removal From "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.

VIII. Continuation of 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 employer status.

C. An employer 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 include:

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 inspection;

2. additional areas identified in the follow-up inspection report; and

3. the steps which are being taken to address them.

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.

IX. Rule Review

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. § 11-9-205.

Amended August 8, 1995, Effective August 29, 1995

(10/3/1995)

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