Policy Name:	Drug-Free Safety Program (DFSP)
Policy #:	EP-04-02
Code/Rule Reference	Ohio Revised Code (ORC) 153.03, 4123.26, 4123.27, 4123.29, and 4123.34. Ohio Administrative Code (OAC) 4123-17-58; 4123-17-74, including Appendices A, B, and C; and 4123-17-75, including Appendix.
Effective Date:	July 1, 2021
Approved:	Rex Blateri, Interim Chief of Employer Services
Origin:	Employer Policy
Supersedes:	Drug-Free Safety Program policy effective March 26, 2018.
History:	Revised March 8, 2022; May 6, 2019; October 18, 2016; May 5, 2015; February 17, 2015; July 6, 2012; September 22, 2011. New policy issued July 8, 2010.
Review Date:	July 1, 2026

 

 

I.      Policy Purpose

 

The Ohio Bureau of Workers’ Compensation (BWC) offers a Drug-Free Safety Program (DFSP). Employers participating in the program may receive a DFSP bonus. BWC will administer the DFSP in accordance with all applicable laws and rules.

 

II.    Applicability

 

This policy applies to BWC Employer Programs, BWC Regional Employer Management Services, Division of Safety & Hygiene (DSH), employers, and their authorized representatives.

 

III.   Definitions

A.    Alternate Employer Organization (AEO): A sole proprietor, partnership, association, limited liability company, or corporation that enters into an agreement with one or more client employers for purposes of providing human resource management services and sharing employer responsibility and liability. AEO does not include a temporary service agency. ORC 4133.01(A).

B.    Client employer: A sole proprietor, partnership, association, limited liability company, or corporation that enters into an AEO agreement and shares employee responsibility and liability with an AEO or enters into a PEO agreement and is assigned shared employees by the PEO. Client employer does not mean a non-complying employer as defined in OAC 4123-14-01. ORC 4125.01(B) and ORC 4133.01(C).

C.   Comparable program: A drug-free workplace program approved by BWC that meets all of the requirements as set forth in ORC 153.03(B)(2).

D.   Contracting authority: Any organized body, office, or agency established by the laws of the state of Ohio, for the exercise of any function of state government, that is authorized to award a public improvement contract. ORC 153.03(A)(1).

E.    Drug-Free Safety Program (DFSP): BWC’s loss prevention and safety program to prevent and reduce the risk of workplace accidents and injuries attributed to the use of alcohol and other drugs, including prescription, over-the-counter, and illegal drugs.

F.    First year participant: An employer that was approved for the DFSP for the first time, and the employer is in its initial program period.

G.   Initial program period: The first full year an employer participates in the DFSP. There can be only one “initial program period” per policy number. An employer returning to DFSP after a period of non-participation is not considered in its initial program period.

H.   Professional Employer Organization (PEO): A sole proprietor, partnership, association, limited liability company, or corporation that enters into an agreement with one or more client employers for the purpose of co-employing all or part of the client employer’s workforce at the client employer’s work site. PEO does not include a temporary service agency. ORC 4125.01(D).

I.      Program period: The policy year an employer participates in the DFSP.

J.     Public improvement contract: Any contract that is financed in whole or in part with money appropriated by the general assembly or that is financed in any manner by a contracting authority, and that is awarded by a contracting authority for the construction, alteration, or repair of any public building, highway, or other public improvement. ORC 153.03(A)(9).

K.    Pure premium: The employer’s calculated premiums before any administrative costs or Disabled Workers’ Relief Fund (DWRF) assessments are added.

L.    Qualified substance abuse professional: A professional who holds one or more of the following substance abuse credentials.

1.    Certified Employee Assistance Professional (CEAP);

2.    Certified Medical Review Officers (MRO);

3.    Drug Abuse Resistance Education (DARE) officer with at least three years of experience in the past five years;

4.    Licensed Chemical Dependency Counselor (LCDC II);

5.    Licensed Independent Chemical Dependency Counselor (LICDC);

6.    Licensed Practical Nurse (LPN), Bachelor of Science in Nursing (BSN) or Master of Science in Nursing (MSN) with a specialization in substance abuse;

7.    Licensed professional counselor (e.g., psychologist, social worker);

8.    Ohio Certified Prevention Specialist (OCPS I & II);

9.    Substance Abuse Professional (SAP);

10.  Substance Abuse Professional Administrator Association (SAPAA) certified;

11.  A person with equivalent experience in the substance abuse field within the past five years as evaluated by BWC; or

12.  Any comparable credential within the substance abuse field that is determined equivalent by BWC.

M.   Safety Management Self-Assessment (SH-26): The SH-26 helps employers evaluate their safety and claims management systems and identify opportunities for improvement. The form contains eleven (11) safety and health categories considered critical to an effective safety and health process. The person(s) in the organization most familiar with the current safety and claims management process should complete the form.

N.   Safety-sensitive position or function: Any job, position, 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.

O.   Supervisor: An employee who supervises other employees and who initiates reasonable suspicion testing and recommends or performs hiring or firing procedures.

IV.  Policy

A.    Eligibility criteria.

1.    To qualify for DFSP benefits the employer must, as of the application deadline:

a.    Be current with respect to all payments due BWC as defined in OAC 4123-17-14(A)(1)(b);

b.    Be current on the payment schedule of any part-pay agreement into which the employer has entered for payment of premiums or assessment obligations;

c.     Not have cumulative lapses in workers’ compensation coverage in excess of forty (40) days within the prior twelve (12) months;

d.    Be in an active policy status, which does not include an employer with a coverage status of “no coverage” or “lapsed;” and

e.    Have reported actual payroll for the preceding policy year and pay any premium due upon reconciliation of estimated premium and actual premium for that policy year.  See the Payroll True-Up policy for additional information.

2.    The following employers are not eligible for DFSP benefits, but may receive technical assistance from BWC:

a.    State agencies; and

b.    Self-insuring employers. However, a self-insuring employer may enroll in the comparable program in order to work, bid, provide labor service, or supervise workers on state construction sites.

3.    An AEO or a PEO is not eligible to receive DFSP benefits unless the AEO or the PEO and each of the clients of the AEO or the PEO meet all DFSP eligibility and program requirements.

4.    An employer BWC determines to be ineligible for the DFSP may appeal the decision to the BWC Adjudicating Committee, per ORC 4123.291.

5.    An employer found ineligible for the DFSP may reapply for a subsequent program period.

B.    Application Requirements / BWC evaluation of application.

1.    An employer must file an Application for Drug-Free Safety Program (U-140) to initially apply for the program. Employers that apply for DFSP after a period of non-participation must also apply by using a U-140.

2.    Application deadlines:

a.    For private employers (PA employers), applications must be filed by the last business day of May for the upcoming July 1 to June 30 program period.

b.    For public employer – taxing districts (PEC employers), applications must be filed by the last business day of November for the upcoming January 1 to December 31 program period.

3.    An employer applying for renewal in the DFSP must use the annual report and identify the program or level the employer desires to participate for the subsequent program period. See section IV.D. If the employer fails to identify the program or level of participation on the annual report, BWC will accept a U-140 submitted by the application deadline.

4.    An employer must apply annually for continued participation in the DFSP. Renewal is not automatic.

C.   Operation of program.

1.    An employer has three options for participation in DFSP: Basic DFSP level (Basic level), Advanced DFSP level (Advanced level), and comparable program.

a.    An employer may: move up or down from one level to the next each program period; or opt out of the program, and then re-apply.

b.    An employer is not required to participate at the Basic level prior to participating at the Advanced level.

2.    Basic level. To implement the Basic level, the employer must implement all the program elements below.

a.    Safety:

i.      The employer must complete a Safety Management Self-Assessment (SH-26) annually. The SH-26 must be completed no earlier than four months prior to the start of the program period and no later than thirty (30) days after the start of the program period.

a)    An employer participating in multiple programs may submit one SH-26 to fulfill the annual requirement for all programs requiring an SH-26.

b)    Multiple submissions of the SH-26 for the prior program period do not relieve the employer of the requirement to submit an SH-26.

ii.     The employer must ensure each supervisor completes accident-analysis training within thirty (30) days of the start of the initial program period.

a)    All new supervisors must complete this training within sixty (60) days of becoming a supervisor.

b)    This training is a one-time only training requirement if the employer has no break in participation.

iii.    The employer must use the online DFSP Accident Report (DFSP-1) on BWC’s website.

b.    Policy:

i.      The employer must have a written DFSP policy and provide a copy to BWC within ninety (90) days of the start of the initial program period outlining the details of its DFSP program. The employer’s written DFSP policy must contain the following elements:

a)    A full and fair disclosure of the reasons for implementing the policy;

b)    Program provisions and procedures;

c)    Responsibilities and rights of all employees subject to the provisions and procedures of the policy;

d)    Consequences of an employee’s failure to comply with the policy;

e)    The DFSP applies to all employees; and

f)     A commitment to employee health and support for employees seeking help with a substance abuse problem.

ii.     Employers are encouraged to have their DFSP policies reviewed by legal counsel prior to implementation.

iii.    Employers participating in the Basic level may terminate an employee on the first positive test result.

c.     Employee education: The employer must provide each employee and supervisor with one hour of initial education and one hour of refresher education annually.

i.      BWC does not require specific content for employee and supervisor education. BWC encourages the employer to include content that:

a)    Promotes awareness and understanding of the content of the employer’s written DFSP policy; and

b)    Educates about the safety, security, and health risks, as well as the declining productivity, associated with the use of alcohol and other drugs in the workplace.

ii.     Education requirements.

a)    First year participants must complete education requirements within the first four months of the initial program period start date.

b)    Refresher education must be completed by the due date for the DFSP Annual Report.

c)    New employees must receive education within eight weeks of their date of hire.

d)    A qualified substance abuse professional must conduct the educational sessions or develop the educational materials. Additionally, the substance abuse professional must be available to answer questions the presenter cannot answer.

e)    The employer may send a manager to a train-the-trainer class offered by a qualified substance abuse professional and have the manager conduct the employee education. Educational materials from the train-the-trainer must be updated at least once every five years.

f)     The employer must submit sign-in sheets from the education sessions held during the program period and invoices from the education service vendor with the DFSP Annual Report each year.

d.    Supervisor skill-building training: First year participants must provide two hours of initial supervisor skill-building training within four months of the initial program period start date. Employers must provide one hour of annual refresher skill-building training for all supervisors in support of the employer’s written DFSP policy.

i.      A qualified substance abuse professional must conduct the supervisor skill-building training or develop the supervisor skill-building materials.

ii.     The employer may send a manager to a train-the-trainer class offered by a qualified substance abuse professional and have the manager conduct the supervisor skill-building training. Educational materials from the train-the-trainer must be updated at least once every five years.

iii.    New supervisors should receive the initial two hour skill-building training within eight weeks of becoming a supervisor.

iv.   The employer must submit sign-in sheets from the supervisor skill-building training sessions held during the program period, and invoices from the training service vendor, with the DFSP Annual Report each year.

e.    Drug and alcohol testing: The DFSP program must include alcohol and other drug testing which conforms to the federal testing model promulgated by the United States Department of Transportation. The employer must implement and pay for testing required by DFSP participation, but the employer is not required to pay for re-testing requested by an employee or any follow-up testing. Requirements for drug and alcohol testing include, but are not limited to, the following.

i.      Employers participating in BWC’s Drug-Free Safety Program will, at a minimum, utilize the 5-panel plus Ecstasy drug test protocol.  Employers must pay for all testing except as noted below. Employees subject to federal testing regulations (e.g., commercial driver’s license - CDL) will follow federal requirements whenever testing occurs in relationship to federal regulations.

ii.     Testing procedures must be in place no later than ninety (90) days from the start of the program period.

iii.    Federal cut-off levels for individual drugs apply except for additional drugs where the cut-off levels for testing positive are established by a laboratory certified by the Substance Abuse and Mental Health Services Administration, an operational unit of the United States Department of Health and Human Services.

iv.   Alcohol cut-off level will be set by the employer, based on its individual industry needs and hazards. BWC recommends using the Department of Transportation cut-off level for a positive test.

v.     Testing must occur as follows:

a)    All new employees are subject to pre-employment drug testing, new-hire drug testing, or a combination of the two types of testing. PA employers must drug test 100% of applicants or new hires. PEC employers must drug test 100% of applicants or new hires in safety-sensitive positions.

b)    Reasonable suspicion alcohol testing, drug testing, or both, as appropriate.

c)    Post-accident alcohol testing, drug testing, or both, for any employee who may have caused or contributed to an on-the-job accident, unless the accident investigation documents all the following conditions:

i)      The accident resulted in no injury or a minor injury, even when off-site medical attention was required;

ii)     There was no violation of work rules;

iii)   An accident investigation determined there was no reasonable suspicion related to the accident; and

iv)   The accident is considered normal in relationship to the job functions of the injured employee.

d)    Return-to-duty alcohol testing, drug testing, or both, is required for employees who are given a second chance after a positive test. The employer’s written DFSP policy should state who will pay for these tests.

e)    Follow-up tests subsequent to return to duty including alcohol testing, drug testing, or both, for employees who are allowed to retain employment following a positive test and a return to duty, must consist of at least three unannounced tests over the following year from the return-to-duty date.

vi.   The employer must use the services of a collection site which follows the specimen collection and testing protocols that meet federal testing requirements and report the name of the collection site on the annual report.

vii.  The employer must use a laboratory certified by the Substance Abuse and Mental Health Services Administration (SAMHSA) for urine analysis and report the name of the laboratory on the annual report.

viii. The employer must secure the services of a certified MRO. The MRO is responsible for receiving and reviewing laboratory results generated by the employers DFSP and evaluating medical explanations for certain drug test results.

a)    The MRO ensures the timely flow of test result and other information to employers and protects the confidentiality of the drug testing information.

b)    The MRO must have no association with the testing laboratory.

c)    The name of the MRO must be provided on the annual report.

ix.   Report testing information as required on the DFSP Annual Report including collection site, certified laboratory, and MRO. Employer must provide copies of invoices from the employer’s collection site for testing services.

f.      Employee assistance: Employers must provide a list of local employee assistance resources for employees who request help or employees who test positive for alcohol or drugs:

i.      Within ninety (90) days of the start of the initial program period; and

ii.     Annually on the DFSP Annual Report.

3.    Advanced level. To implement the Advanced level, the employer must meet all the requirements of the Basic level and implement all the following requirements.

a.    The employer must ensure its written DFSP policy clearly reflects how random drug testing will be implemented and how additional employee assistance will be provided.

i.      PA employers must conduct random drug testing of fifteen percent (15%) or more of their total average annual workforce during the program period.

ii.     PEC employers must conduct random drug testing of fifteen percent (15%) or more of their safety-sensitive workforce during the program period.

iii.    Employers subject to federal testing regulations will follow federal requirements for random drug testing. Employers may find additional information at the U.S. Department of Transportation.

iv.   Consortium.

a)    PA employers may enter a consortium with a vendor for the purposes of pooling employees from multiple employers for random drug testing.  The consortium will then conduct random drug tests on fifteen percent (15%) of all employees in the pool.

b)    PEC employers may enter a consortium for the purposes of random drug testing of safety-sensitive employees. The consortium will then conduct random drug tests on fifteen percent (15%) of all employees in the pool.

b.    Employee assistance.

i.      The employer must establish a relationship with an employee assistance professional for employees who are referred.

ii.     The employer must pay the costs of a substance assessment of an employee who:

a)    Tests positive;

b)    Comes forward voluntarily to indicate he or she has a substance problem; or

c)    Is referred by a supervisor.

iii.    The employer is not required to pay for treatment: of an alcohol or drug problem; or for follow-up testing after the assessment or the completion of treatment.

iv.   There may be circumstances that may justify a shared cost for an assessment or treatment related to collective bargaining agreements or employee-negotiated benefits; e.g., a required health care co-pay.

c.     The employer must submit a Drug-Free Safety Program – Safety Action Plan (DFSP-5) based on the results of the SH-26 within sixty (60) days of the start of the program period. The DFSP-5 outlines specific safety process improvements that the employer intends to implement during the remainder of the program period. BWC may move an Advanced level participant to the Basic level for failing to submit the DFSP-5.

d.    Employee termination.

i.      Advanced level employers commit to not terminate any employee who:

a)    Tests positive for the first time;

b)    Comes forward voluntarily to indicate he or she has a substance problem; or

c)    Is referred by a supervisor for an assessment.

ii.     Employees may be terminated for other causes, e.g., violations of other company rules, in accordance with company policy.  BWC has no role in whether an employee is terminated, but only determines whether termination meets the Advanced level requirements for continued participation in the program.

iii.    BWC may, on a case-by-case basis, allow an Advanced level employer’s written DFSP policy to specify termination for an employee’s first positive test. The employer must present BWC with a compelling reason for termination on a first positive test. Reasons BWC has accepted in the past include:

a)    The employer is a multi-state employer with a corporate policy that dictates termination; or

b)    The employer’s business has safety-sensitive positions or functions.

e.    An employer in the Advanced level may voluntarily move to the Basic level during the program period. However, the employer must meet all Basic level requirements, and the employer will only be eligible for the Basic level DFSP bonus.

4.    Application of DFSP bonus.

a.    An employer completing program requirements may be eligible for the DFSP bonus amount outlined in the appendix to OAC 4123-17-75:

i.      Four percent (4%) times the employer’s pure premium cost for the program period if the employer is in the Basic level.

ii.     Seven percent (7%) times the employer’s pure premium for the program period if the employer is in the Advanced level.

iii.    No bonus is offered for a comparable program.

b.    To qualify for the DFSP bonus, the employer must:

i.      Have coverage that is in an active policy status at the time of calculation;

ii.     Comply with additional program requirements for DFSP bonus eligibility as determined by the superintendent of DSH; and

iii.    Report actual payroll for the preceding program period and pay any premium due upon reconciliation of estimated premium and actual premium. An employer will be deemed to have met this requirement if BWC receives the payroll report, and the employer pays premium associated with such report, before the expiration of any grace period.

c.     The DFSP bonus and the incentives earned through participation in other Destination: Excellence programs cannot reduce an employer’s premium due below the amount of the minimum administrative charge as set forth in OAC 4123-17-26.

d.    BWC will not issue a DFSP bonus to an employer paying the minimum administrative charge for the applicable program period.

e.    Rate adjustments made to an employer’s account after the issuance of the DFSP bonus may result in recalculation of the DFSP bonus.

5.    An employer participating in the DFSP may participate in other compatible BWC rating and discount programs. Employer program compatibility is outlined in OAC 4123-17-74, Appendix C.

6.    An employer may elect on the U-140 to be placed on BWC’s state construction contractor look-up of eligible employers to bid on state-funded construction projects.

a.    An employer enrolled and in good standing in the Basic level, Advanced level, or comparable program is eligible.

b.    An employer’s status will be listed as “approved” on the state construction contractor look-up upon submission of a fully completed U-140 and BWC verification of program eligibility and compliance.

i.      The employer must provide documentation of the implementation, or plans to implement, employee education, supervisor training, and drug testing as outlined in ORC 153.03(B)(2), including the names of the employer’s vendors.

ii.     BWC will list the employer’s status as “not approved” on the state construction contractor look-up if the employer is no longer enrolled and participating in the DFSP or the comparable program.

7.    BWC may offer DFSP grants to offset, in whole or in part, the costs incurred by employers implementing a Basic level or Advanced level program and meeting the DFSP grant program’s eligibility requirements. See the policy titled Drug-Free Safety Program (DFSP) Safety Grants for additional information.

8.    Participants returning after a period of non-participation must complete all the program requirements for a first year participant, with the following exception: supervisors that previously completed the initial two hour supervisor training requirements are not required to repeat the training if the employer’s break in participation was one year or less; all new supervisors must complete the training.

9.    BWC may accept education and training requirements from a DFSP participant that are completed up to six months prior to the program period start date. However, the education and training can only be used to meet the requirements for one program period.

D.   Comparable program.

1.    Self-insuring and state-fund employers that wish to have a comparable program must submit a U-140 application.

2.    ORC 153.03 states that a public improvement contractor or subcontractor must be enrolled in, and be in good standing with, BWC’s DFSP or a comparable program approved by BWC.

a.    First year participants must develop, implement, and provide to all employees and BWC a written substance use policy. The policy must convey full and fair disclosure of the employer’s expectations that no employee be at work with alcohol or drugs in the employee’s system and specify the consequences of violating the policy.

b.    Prior to providing labor services, or on-site supervision of such labor services, under a public improvement contract, employers participating in the comparable program must:

i.      Complete all employee education by requiring all employees to receive at least one hour of training that increases awareness of, and attempts to deter, substance abuse and supplies information about employee assistance to deal with substance abuse problems.

ii.     Require all supervisors to receive one additional hour of skill-building training to teach each supervisor how to observe and document employee behavior and intervene when reasonable suspicion exists of substance abuse.

iii.    Require all supervisors and employees to receive the training described above before a public improvement contract commences or during the term of the public improvement contract.

c.     See ORC 153.03 regarding additional requirements of a public improvement contract.

E.    Annual report to BWC and renewal requirements.

1.    Employers must submit a Drug-Free Safety Program (DFSP) Annual Report – Basic and Advanced Levels (DFSP-3) or a Drug-Free Safety Program (DFSP) Annual Report - Comparable Program Only (DFSP-4) to BWC.

a.    For PA employers, the annual report is due by the last business day in March of the program period.

b.    For PEC employers, the annual report is due by the last business day in September of the program period.

c.     BWC begins accepting online submissions of the annual report one month before the deadline.

2.    Failure to submit the annual report to BWC by the established deadline  results in forfeiture of the DFSP bonus for that program year and the employer’s status listed as “not approved” on the state construction contractor look-up.

3.    The employer must use the annual report to apply for renewal. Renewal is not automatic. The employer must indicate the program level desired for the following program period on the annual report. The employer may also use the annual report to decline participation for the next program period.

4.    All employers on the state construction contractor look-up must report their education, training, and drug testing vendors on the annual report.

5.    The annual report must detail the employer’s program implementation and report annual statistics as required by BWC outlined in section IV.C of this policy.

a.    The employer must provide any follow-up documentation and maintain on-site statistics as required by BWC.

b.    The annual report and any other information submitted by the employer in meeting DFSP requirements is considered part of the annual statement submitted to BWC as required by ORC 4123.26.

c.     BWC shall hold the annual report and any other documentation submitted by the employer to meet DFSP requirements as confidential, pursuant to ORC 4123.27.

6.    An AEO or a PEO participating in DFSP must submit a client list to BWC by the annual report filing deadline.

a.    The client list must include all client employers with whom the AEO or the PEO had an agreement, as of thirty (30) days prior to the annual report deadline.

b.    The list must include each client employer’s name, address, federal tax identification number, BWC 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 BWC determines the AEO or the PEO manipulated the client list, the AEO or the PEO is ineligible to receive DFSP benefits.

d.    BWC will hold the client list as confidential pursuant to ORC 4125.05 and ORC 4133.07.

F.    Stipulations.

1.    Participation in the DFSP is voluntary.

2.    Nothing in this policy shall:

a.    Affect, modify, or amend any collective bargaining agreement;

b.    Alter the rights or obligations of an AEO, an employer, an employee, a client employer, or a worksite employee under applicable federal or state law; or

c.     Alter the rights or obligations of a PEO, an employer, an employee, a client employer, or a shared employee under applicable federal or state law.

3.    If an employer has a collective bargaining agreement that prevents implementation of DFSP program requirements, the employer cannot participate in the DFSP.

G.   Removal / exit from program.

1.    BWC may remove an employer from DFSP for failure to fully implement a DFSP in compliance with the DFSP program level requirements.

a.    BWC will send written notice to the employer of removal from the program.

b.    An employer removed by BWC from DFSP may reapply for the next program period.

c.     BWC may deny an employer’s application for DFSP based on the circumstances of the employer’s prior participation.

d.    An employer BWC determines to be ineligible for the DFSP may appeal the decision to the BWC Adjudicating Committee, per ORC 4123.291.

2.    An employer may voluntarily withdraw from the program during the program period by submitting written correspondence to BWC requesting removal. If the employer wishes to participate in a future program period, the employer must file a new U-140.

3.    BWC will remove an employer from the DFSP program who fails to report actual payroll for the preceding policy year, and pay any premium due, upon reconciliation of estimated premium with actual premium, no later than the due date as set forth in OAC 4123-17-14. BWC will not remove an employer if BWC receives the payroll report and associated premium prior to the expiration of any grace period as set forth in OAC 4123-17-16.

4.    An employer who voluntarily withdraws, or is removed, from the DFSP program is not eligible for a DFSP bonus for that program period.

H.   Resolution of complaints.

1.    Employer complaints are processed under the General Employer Complaint Policy.

2.    Specific extenuating circumstances that apply to the DFSP:

a.    Circumstance involving a lifetime one-time exception to filing a DFSP Annual Progress Report after the reporting deadline.

i.      The employer has failed to submit the annual progress report by the established deadline date, or BWC has no record of the report. BWC may resolve the employer’s complaint by accepting the late progress report and required documents no later than thirty (30) days from the date BWC notified the employer of disqualification from the DFSP program. BWC notice may include either the monthly statement or program disqualification letter. The late submission may only be accepted if no previous late exceptions have been granted to the employer for the DFSP program.

ii.     Supporting documentation: BWC will review the annual progress report and required documents to determine if the employer was fully compliant with requirements for the DFSP program year in question. Based on the review, BWC will recommend approval of, or disqualification from, the DFSP.

iii.    If an employer submits the annual progress report online prior to the deadline, but the employer does not also submit the required documents as specified on the annual progress report checklist, the employer shall be considered as having timely submitted the required report and will not be required to request a one-time exception. However, the employer must provide the required documentation within five business days of notice from BWC that the documentation must be submitted. If required documentation is not submitted within five business days, the annual progress report will be considered late, the employer is ineligible for the DFSP bonus, and the employer’s status is listed as “not approved” on the state construction contractor look-up.

b.    Circumstance involving an employer request to change program levels during the program period.

i.      BWC will review a request by an employer to change from Advanced level to Basic level, or vice-versa, to determine if all the new program level requirements can be met by the deadlines. If all the new program level deadlines cannot be met, BWC will deny the employer’s request.

ii.     Example: An employer requests a change from Basic level to Advanced level ninety (90) days into the program period. The DFSP requires an Advanced level employer to complete a safety action plan within sixty (60) days of the start of the program period. If the employer did complete a safety action plan within the first sixty (60) days of the program period, the change will be granted. If this requirement was not met, the request will be denied. Once a deadline is passed, the employer cannot retroactively meet that specific requirement.

iii.    Supporting documentation: Employer must provide written documentation showing that the employer can meet, or has met, all required elements of the requested level by the required deadlines.

3.    Drug-free vendor error does not qualify as an extenuating circumstance for the DFSP.

I.      Transfers and combinations.

1.    Successor: Not in DFSP.

Predecessor: In DFSP.

Action: If a non-DFSP employer totally succeeds a DFSP employer, the successor is not eligible to participate in DFSP until the following program period.

2.    Successor: In DFSP.

Predecessor: Not in DFSP.

Action: If a DFSP employer totally succeeds a non-DFSP employer, the successor remains in its current DFSP program. All acquired employees of the predecessor must be immediately included in the successor’s DFSP plan, including all training required of new employees and if the successor is in the Advanced level, including the predecessor’s employees in the random testing schedule.

3.    Successor: In Basic level.

Predecessor: In Advanced level.

Action: The successor remains in its current DFSP program period and level of participation. The predecessor employees are included in the Successor’s Basic level program.

4.    Successor: In Advanced level.

Predecessor: In Basic level.

Action: The successor remains in its current DFSP program period and level of participation. The predecessor employees are included in the successor’s Advanced level program, including the random testing requirements.

5.    Successor: New entity.

Predecessor: In DFSP.

Action: The successor is not eligible for the DFSP until the next program period.

J.     Scenarios.

1.    An employer is in the DFSP one year, drops out for one year, and then enrolls again. The employer claims there is no need to train its supervisors in accident analysis, since the supervisors were trained in the first year of participation. Is this correct?

Answer: No. This employer had a break in participation, so the employer is classified as a first year participant. First year participants are required to complete all employee training as if the employer is entering the DFSP for the first time. Employers enrolled in the DFSP for consecutive years do not have to retrain supervisors in accident analysis.

2.    An employer that is enrolled in the Advanced level buys out a non-DFSP employer. Are the new employees required to be trained?

Answer: Yes. The employees of the purchased company must be immediately incorporated into the buyer’s DFSP, including employee education, supervisor training, accident analysis training, and random testing. The employees of the purchased employer do not have to be tested under the “new hire” testing requirements.

3.    An employer in DFSP immediately re-enrolls, so there is no break in participation. The employer asks if an SH-26 must be submitted. The employer wants to use the SH-26 that was submitted for the last program period as nothing has changed. Is this OK?

Answer: No. For each program period that an employer participates in the DFSP, the employer is required to complete a new Safety Management Self-Assessment (SH-26). If the SH-26 results are the same as the previous year’s, these self-assessments may indicate that the employer is making no progress in improving its safety process.