Current through all regulations passed and filed through September 16, 2024
(A) Definitions.
For purposes of this rule:
(1)
"AEO" and "PEO"
have the same meaning as defined in rule
4123-17-15 of the Administrative
Code.
(2) "Application deadline" means the applicable
deadline set forth in appendix A or in appendix B
to rule 4123-17-74 of the Administrative
Code.
(3) "Client employer" has the same meaning as defined
in rule
4123-17-15 of the Administrative
Code.
(4) "Comparable program" means a program referred to
in section 153.03 of the Revised
Code.
(5) "Drug-free safety program" or "DFSP" means the
bureau's loss prevention and safety program to prevent and reduce the risk of
workplace accidents and injuries attributed to the use and abuse of alcohol and
other drugs, including prescription, over-the-counter, and illegal drugs.
(6) "Program
period" means the policy year for which the employer elects to participate in
DFSP.
(7) "Safety-sensitive
position or function" means any job position or work-related function or job
task designated as such by the employer, which through the nature of the
activity could be dangerous to the physical well-being of or jeopardize the
security of the employee, co-workers, customers or the general public through a
lapse in attention or judgment.
(8)
"Supervisor" means an employee who supervises others in the performance of
their jobs, has the authority and responsibility to initiate reasonable
suspicion testing and recommend or perform hiring or firing
procedures.
(9) "Superintendent"
means the superintendent of the division of safety and hygiene or the
superintendent's designee.
(B) Eligibility requirements.
(1) To receive benefits under this rule, the
employer must, as of the application deadline:
(a)
Be current with respect to all payments due the
bureau, as defined in paragraph (A)(1)(b) of rule
4123-17-14 of the Administrative
Code;
(b)
Not have cumulative lapses in workers'
compensation coverage in excess of forty days within the twelve months
preceding the application deadline;
(c)
Be in an active policy
status, which
for purposes of this rule, does not include a policy that is a no coverage policy or a
policy that is lapsed; and
(d)
Report actual payroll for the preceding policy
year and pay any premium due upon reconciliation of estimated premium and
actual premium for that policy year no later than the application deadline date set forth in rule
4123-17-74 of the Administrative Code.
(2) The following employers shall not be
eligible for benefits under this rule:
(a)
State agencies;
(b) Self-insuring
employers providing compensation and benefits pursuant to section
4123.35 of the Revised
Code.
(3)
An AEO or a
PEO shall not be eligible to receive benefits under this rule unless the
AEO or the PEO and each of the
client employers
of the AEO or the PEO meet all eligibility and
program requirements.
(4) An
employer determined to be ineligible for participation in the DFSP based on the
bureau's review of the employer's submitted application may appeal such
determination to the adjudicating committee pursuant to section
4123.291 of the Revised
Code.
(5) An employer that is found
to be ineligible for participation in the DFSP may reapply for a subsequent
program period.
(C)
Basic DFSP level.
To implement a basic DFSP, an employer shall make annual
application to the bureau by the application deadline and implement the program
elements set forth in paragraphs (C)(1) to (C)(6) of this rule. The
requirements and timeframes for completion of each element shall be determined
by the superintendent.
(1) Safety -
The DFSP shall include, but is not limited to the following:
(a) Completing and submitting the bureau's
online safety assessment;
(b)
Ensuring each supervisor completes accident-analysis training; and
(c) Utilizing online accident-analysis
reporting on the bureau's website.
(2) Policy - Employers are required to put in
place a written DFSP policy.
(3)
Employee education - The DFSP shall include annual education for all
employees.
(4) Supervisor
skill-building training - The DFSP shall include annual training for all
supervisors in support of enforcing the employer's written DFSP policy and
procedures.
(5) Drug and alcohol
testing - The DFSP program shall include alcohol and other drug testing which
conforms to the federal testing model promulgated by the United States
department of health and human services. The employer shall implement and pay
for testing required by DFSP participation
but is not required to pay for re-testing requested by an employee and
follow-up testing. Testing shall occur as specified by the bureau including,
but not limited to the following:
(a)
Pre-employment and new-hire drug testing;
(b) Post-accident alcohol and other drug
testing;
(c) Reasonable suspicion
alcohol and other drug testing; and
(d) Return-to-duty and follow-up alcohol and
other drug testing.
(6)
Employee assistance - The DFSP shall include an employee assistance
plan.
(D) Advanced DSFP
level.
To implement an advanced DFSP, an employer shall make annual
application to the bureau by the application deadline and implement the program
elements set forth in paragraphs (D)(1) and (D)(2) of this rule. The
requirements and timeframes for completion of each element shall be determined
by the superintendent.
(1) The
employer shall meet all of the requirements of a basic DFSP as provided in
paragraph (C) of this rule.
(2) The
employer shall do all of the following:
(a)
Ensure that its written DFSP policy clearly reflects how random drug testing
will be implemented and how additional employee assistance will be
provided;
(b) Ensure conducting
fifteen per cent or higher random drug testing of the employer's workforce each
program period;
(c) Pre-establish a
relationship for, and pay the costs of, a substance assessment of an employee
who tests positive, comes forward voluntarily to indicate he or she has a
substance problem, or is referred by a supervisor;
(d) Timely submit a safety action plan based
on the results of the completed safety assessment which outlines specific
safety process improvements the employer intends to implement during the
remainder of the program period;
(e) Commit to not terminate the employment of
an employee who tests positive for the first time, who comes forward
voluntarily to indicate he or she has a substance problem, or who is referred
by a supervisor for an assessment.
(E) Comparable program.
(1) Self-insuring employers and state-fund
employers not participating in the DFSP shall submit an application for
approval of a comparable program.
(2) Prior to providing labor services or
on-site supervision of such labor services under a public improvement project
as defined in division (A)(9) of section
153.03 of the Revised Code,
employers participating in the comparable program shall:
(a) Develop, implement, and provide to all
employees a written substance use policy the written policy required by
division (B)(2)(a) of section
153.03 of the Revised
Code;
(b) Complete all employee
education required by division (B)(2)(d) of section
153.03 of the Revised Code;
and
(c) Complete all supervisor
training required by division (B)(2)(e) of section
153.03 of the Revised
Code.
(F)
Progress reporting and renewal requirements.
(1) In order to qualify for renewal, an
employer shall have implemented all requirements of its basic or advanced level
DFSP by the implementation date specified by the bureau.
(2) The employer shall submit an annual
report detailing program implementation and reporting annual statistics on a
form provided by the bureau. The requirements and timeframes for completion of
the annual report shall be determined by the superintendent.
(a) If the employer is applying for renewal
in the DFSP, the annual report shall be deemed the employer's annual
application, and the employer shall identify which DFSP level is requested for
the following program period;
(b)
The employer shall provide any follow-up documentation required by the bureau
and shall maintain on-site statistics as required by the bureau;
(c) The report required by this section and
any other information submitted by the employer in meeting DFSP requirements
shall be considered part of the annual statement submitted to the bureau as
required by section 4123.26 of the Revised Code. The
bureau shall hold such information as confidential pursuant to section
4123.27 of the Revised
Code.
(3) In conjunction
with the annual report required under paragraph (F)(2) of this rule,
an AEO or a PEO participating in the DFSP must
submit a client employer list.
(a) The list
shall include all client employers with whom the AEO or
the PEO had an agreement as of thirty days prior to the filing deadline
for the annual report;
(b) The list
shall include each client employer's name, address, federal tax identification
number, bureau of workers' compensation
policy number;
and the amount of payroll, listed by
classification code, reported by
the AEO or the PEO on behalf of each client
employer;
(c) If the bureau
determines the AEO or the PEO has manipulated the
client list for purposes of obtaining benefits under this rule, the
AEO or the PEO shall not be eligible to receive
such benefits;
(d) The bureau shall
hold the list required under this section as confidential pursuant to section
4125.05 of the Revised
Code.
(G) The
bureau may remove an employer from participation in the DFSP for failure to
fully implement a DFSP in compliance with the approved program level
requirements. The bureau shall send written notice of cancellation to the
employer. An employer removed from the DFSP under this section may reapply for
the DFSP for the next program period. The bureau may deny the application based
on circumstances of previous participation.
(H) An employer completing program
requirements may be eligible for a bonus equal to the amount identified in the
appendix to rule
4123-17-75 of the Administrative
Code times the employer's pure premium costs during the program period.
To be eligible for the bonus, an employer must report
actual payroll due upon reconciliation of estimated premium and actual premium
for the program participation year no later than the date set forth in rule
4123-17-14 of the Administrative
Code. An employer will be deemed to have met this requirement if the bureau
receives the payroll report and the employer pays premium associated with the
payroll report before the expiration of any grace period established by the
administrator pursuant to rule
4123-17-16 of the Administrative
Code.
Additional program requirements
for bonus eligibility shall be determined by the
superintendent of the division of safety and
hygiene.
(I) Participation in
this program under this rule is voluntary. Nothing contained in this rule shall
affect, modify, or amend any collective bargaining agreement or alter the
rights or obligations of an AEO, an employer, an
employee, a client employer, a PEO, or
a shared employee under applicable federal or
state law. Provisions of a collective bargaining agreement that prevent
implementation of program criteria will preclude employer participation in the
program.
(J) Pursuant to section
4121.37 of the Revised Code, the
administrator may establish a grant program to offset, in whole or in part,
costs incurred by employers that implement a basic or advanced DSFP and meet
such grant program's eligibility requirements.
