Texas Regulations 164.1

(b) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Employer--A public or private entity defined by the employer's Federal Employer Identification Number (FEIN) and four-digit Standard Industrial Classification (SIC) code. For purposes of this subchapter, public employers means employers who are a political subdivision as defined in Chapter 504, but does not include those state agencies, institutions, and departments defined in Chapters 501, 502, 503 and 505. With the exception of those employers defined in Chapters 501 through 505 and federal entities, all other employers are private employers. (2) Employer subject to the program--Every employer who has workers' compensation insurance coverage to the extent that any finding as to hazardous employer status made during such coverage shall continue, even if such coverage is terminated, until such status is removed pursuant to this chapter. In addition, this chapter applies to every employer who is not required to have such coverage and does not have such coverage and employs five or more non-exempt employees. (3) Standard Industrial Classification (SIC) Code--The SIC Code derived from the Standard Industrial Classification Manual, current edition, published by the Office of Management and Budget, and assigned to the employer by the Texas Workforce Commission (TWC). When the Texas Workforce Commission assigns appropriate codes, and the Bureau of Labor Statistics completes the transition to the North American Industry Classification System (NAICS) in their publications, the commission will use the NAICS to replace the Standard Industrial Classification Manual to classify employers by their business or industry, and to obtain the Expected Injury Rate at the level equivalent to that used under the SIC. Employers will be notified by the Commission prior to the change in coding systems through a notice published in the Texas Register. (4) Employment (E)--Highest employment recorded during the audit period by the employer in any pay period, for the applicable SIC code, as reported to TWC or substantiated by employer payroll documents. (5) Injuries (I)--The employer's total number of injuries, in the following categories: lost time injuries, occupational diseases, and fatalities. The category of no lost time injuries will be included when provided by rule. (6) Rate (R)--The employer's injury rate normalized to the number of injuries per 100 employees, for the specified audit period, using the formula (I/E) x 100. (7) Expected Injury Rate (Rexpected)--An employer's expected injury rate per 100 employees for the applicable SIC code (NAICS code after the transition) from the following source: From the most current edition of the Bureau of Labor and Statistics (BLS) publication Survey of Occupational Injuries and Illnesses available to the commission when the audit period is initiated, using Table 1, Injuries and Illnesses, Lost Workday Cases with days away from work column, and using data for the four digit SIC code, if available; if not, then the three digit SIC code, if available; if not, then the two digit SIC code. If applicable data is not available from the BLS publication, then the commission will develop an expected injury rate for the SIC code (or NAICS code after the transition) by examining the potential hazard exposure for the SIC code (or NAICS code after the transition) and taking into consideration publicly available data from sources such as the National Safety Council and other states. Irrespective of source, when the published SIC code (NAICS code after the transition) rate is less than 1.0, an expected rate of 1.0 will be used. (8) Audit Period--The 12-month period to be used for obtaining employment data and for counting injuries, including occupational diseases and fatalities as specified in section 164.14 of this title (relating to Values Assigned for Computation of Hazardous Employer Identification). (9) Fatality--The death of an employee from a work-related injury or occupational disease. (10) Occupational diseases--Occupational diseases reported to the commission during the audit period. The occupational disease will be included on the record of the employer under which the last exposure occurred. The occupational disease will be included in the audit period during which it was reported. The exposure need not have occurred during the audit period. (11) Lost Time Injuries--Injuries (excluding occupational diseases and fatalities) resulting in greater than seven days of lost time. Injuries with lost time of greater than one day, but less than eight days, will be included when provided by rule. (12) No Lost Time Injuries--Medical-only injuries with impairment, but no lost time (excluding occupational diseases). (13) Threshold Level (X)--Specified in section 164.14 and established so as to insure that an identified employer's injury frequency substantially exceeds that which may reasonably be expected in the employer's business or industry. Values for both thresholds will be selected such that no employer will be identified as a hazardous employer who has only one lost time injury or occupational disease reported during the audit period nor will an employer be identified as hazardous whose R does not exceed R expected.

(c) The following calculation shall be used to determine hazardous employer status. An individual employer's rate of injuries per 100 employees, for the specified audit period, calculated using the formula: R = (I/E) x 100. The computed R is divided by the expected injury rate (R expected) and the result compared to the threshold level established in section 164.14. If the ratio is greater than the threshold value, the employer is hazardous.

(d) The commissioners will by rule establish the threshold values as specified in subsection (b)(13) of this section.

(e) Prior to notification, the employer will be given the opportunity to verify FEIN, SIC code, employment, and injury data.

(f) An employer whose total employment in all SIC codes is less than 20 may be excluded from identification for the program.

(1) An employer tentatively identified will be advised by certified mail at the employer's principal place of business that the employer has been tentatively identified for the program, and that the employer may voluntarily request a full OSHCON consultation from the division. (2) If the employer requests a full OSHCON consultation within 30 days of receipt of the tentative identification and receives the consultation within 90 days of the notification, the employer will not be identified for the Hazardous Employer Program. (3) Public employers who request an OSHCON consultation will be provided an OSHCON equivalent consultation utilizing state resources. (4) If the employer does not request and receive a full OSHCON consultation, the employer will be identified for the Hazardous Employer Program. (5) An employer tentatively identified for the program may request an administrative review of the facts used in the tentative identification as addressed in section 164.2 of this title (relating to Notice to "Hazardous Employers").

The provisions of this section 164.1 adopted to be effective March 10, 1995, 20 TexReg 1423; amended to be effective November 29, 1998, 23 TexReg 11813; amended to be effective March 14, 2001, 26 TexReg 2033.