Arkansas Extra-Hazardous Employer

Arkansas Code defines the term "extra-hazardous employer" as "an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer's business or industry, an employer whose experience modifier is identified by the Commission as too high, and such other employers as may, following a public hearing, be identified as extra-hazardous." See Ark. Code Ann. § 11-9-409 (c).

Subsection (c) (1) (B) requires the Division to notify each extra-hazardous employer or its insurance carrier that the employer has been identified as an extra-hazardous employer.

Subsection (c) (2) (A) mandates that an employer so notified must then obtain a safety consultation within thirty days from the Department of Labor, the employer's insurance carrier, or another professional source approved by the Division for that purpose, and pursuant to subsection (c) (2) (B), the safety consultant shall file, with the Division and the employer, a written report setting out any hazardous conditions or practices identified by the safety consultation.

Under subsection (c) (3), the employer and the consultant must then formulate a specific accident prevention plan, addressing the concerns identified by the consultant.

Under Subsection (c) (4), the Division may investigate accidents occurring at a work site for whom a safety plan has been formulated.

Subsection (c) (5) (A) requires that six months after the formulation of an accident prevention plan, the Division conduct a follow-up inspection of the employer's premises, and the division may require the participation of the safety consultant who performed the initial consultation and formulated the safety plan.

If the Division determines that the employer has complied with the terms of the accident prevention plan or has implemented other acceptable corrective measures, then pursuant to (c) (5) (B), the Division shall so certify.

However, under (c) (5) (C), an employer who the Division determines has failed or refused to implement the accident prevention plan or other suitable hazard abatement measures will be subject to civil penalties.

If at the time of an inspection, the Division makes a finding that the employer continues to exceed the injury frequencies that may reasonably be expected in the employer's business, under subsection (c) (6), the Division is required to continue to monitor the safety conditions at the work site and formulate additional safety plans.

If the employer disagrees with any of the Division's findings that it is an extra-hazardous employer or the procedures set forth to prevent such injury frequency, then under subsection (c) (7) the employer may request a hearing before the full Commission.

Arkansas Code Annotated section 11-9-409 establishes the Division and promulgates its responsibilities, including coordinating information relating to job safety; organizing educational material as it pertains to job safety; promoting a means by which employers and employees are educated with regard to workplace safety; and maintaining a job safety information system, which shall include a comprehensive data base incorporating information relating to each reported injury. Subsection (c) states:

(c) EXTRA-HAZARDOUS EMPLOYER PROGRAM. (1) (A) In cooperation with and with the assistance of the Department of Labor and the State Insurance Department, the division shall develop a program, including injury frequency, to identify extra-hazardous employers. the term "extra-hazardous employer" includes an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer's business or industry, an employer whose experience modifier is identified by the commission as too high, and such other employers as may, following a public hearing, be identified as extra-hazardous.

(B) the division shall notify each identified extra-hazardous employer or the carrier for the employer that the employer has been identified as an extra-hazardous employer.

(2) (A) An employer who receives notification under subdivision (c) (1) (B) of this section must obtain a safety consultation within thirty (30) days from the Department of Labor, the employer's insurance carrier, or another professional source approved by the division for that purpose.

(B) the safety consultant shall file a written report with the division and the employer setting out any hazardous conditions or practices identified by the safety consultation.

(3) the employer and the consultant shall formulate a specific accident prevention plan which addresses the hazards identified by the consultant. the employer shall comply with the accident prevention plan.

(4) the division may investigate accidents occurring at the work sites of an employer for whom a plan has been formulated under subdivision (c) (3) of this section, and the division may otherwise monitor the implementation of the accident prevention plan as it finds necessary.

(5) (A) Six (6) months after the formulation of an accident prevention plan prescribed by subdivision (c) (3) of this section, the division shall conduct a follow-up inspection of the employer's premises. the division may require the participation of the safety consultant who performed the initial consultation and formulated the safety plan.

(B) If the division determines that the employer has complied with the terms of the accident prevention plan or has implemented other acceptable corrective measures, the division shall so certify.

(C) An employer who the division determines has failed or refused to implement the accident prevention plan or other suitable hazard abatement measures is subject to civil penalties as follows:

(i) the commission may assess a civil penalty against an employer who fails or refuses to implement the accident prevention plan or other suitable hazard abatement procedures in an amount up to one thousand dollars ($ 1,000) per day of violation payable to the Death and Permanent Total Disability Trust Fund;

(ii) Further, the commission may petition the Chancery Court of Pulaski County, or of the county where the business is located, for an order enjoining the employer from engaging in further employment until such time as the employer implements the prevention plan or abatement measure described above and/or makes payment of all civil penalties.

(6) If, at the time of the inspection required under subdivision (c) (5) (A) of this section, the employer continues to exceed the injury frequencies that may reasonably be expected in that employer's business or industry, the division shall continue to monitor the safety conditions at the work site and may formulate additional safety plans reasonably calculated to abate hazards. the employer shall comply with such plans and may be subject to additional penalties for failure to implement the plan or plans.

(7) An employer may request a hearing before the Full Commission to contest findings made by the division under this section.

(8) the identification as an extra-hazardous employer under this section is not admissible in any judicial proceeding unless the commission has determined that the employer is not in compliance with this section and that determination has not been reversed or superseded at the time of the event giving rise to the judicial proceeding.

Prior to Act 796, Ark. Code Ann. § 11-9-503 (Repl. 1987) read:

Where established by clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health and safety of employees, compensation provided for by § 11-9-501 (a)-(d) shall be increased by twenty-five percent (25%).

The Ark. Code Ann. § 11-9-503 had been amended by Act 796 to read as follows:

(a) (1) Notwithstanding any other definition of extra-hazardous employer as provided by § 11-9-409 (c), any employer who fails to utilize the consultative safety services available through the Department of Labor, its own insurance carrier, or a private safety consultant shall be identified as an extra-hazardous employer if it is established by a preponderance of the evidence that an injury or death is caused in substantial part by the failure of the employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees or fails to follow safety consultant recommendations.

(2) When so notified, the employer shall comply with § 11-9-409 (c) (2) - (8).