By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: In a move that may be employer-friendly, President Trump has re-nominated Heather MacDougall to the OSHRC. MacDougall represents a Republican vote on cases appealed before the Commission.

Heather L. MacDougall has recently been re-nominated by President Trump to the Occupational Safety and Health Review Commission (OSHRC).  McDougall was originally nominated to the OSHRC in 2014 by then-President Obama and confirmed unanimously by the Senate.  MacDougall had then been designated as acting Chair of the OSHRC. Her previous term was set to expire in January 2017.

OSHRC is an independent federal agency set up to adjudicate disputes over OSHA citations or penalties, including hearing appeals from employers.  Although MacDougall and Commissioner Cynthia L. Attwood are currently its only members, they have a quorum and may issue decisions.  The tird seat on the OSHRC remains open.

According to the Whitehouse news release MacDougall came to the OSHRC with twenty years of experience representing employers throughout the United States in matters involving labor, employment, and occupational safety and health law, most recently with Akerman LLP in West Palm Beach, Florida.  In addition, she had served as Chief Counsel to OSHRC Chairman W. Scott Railton.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Photo from CSB YouTube page video capture: https://www.youtube.com/watch?v=MCEErm18T2k
Photo from CSB YouTube page video capture: https://www.youtube.com/watch?v=MCEErm18T2k

Seyfarth Synopsis: The CSB found deficiencies in the facility’s design and labeling of the chemical loading stations, and failure to follow the company’s written chemical unloading procedures.

The U.S. Chemical Safety Board recently released preliminary findings from its ongoing investigation of the toxic chemical release that occurred at a processing plant in Atchison, Kansas.  The investigation has identified several deficiencies in the design and labeling of the loading stations, and failure to follow the company’s written chemical unloading procedures.

In the Atchison case, a chemical tanker truck arrived at the facility to deliver sulfuric acid.  A facility operator escorted the driver to a locked loading area.  The operator unlocked the gate to the fill lines and also unlocked the sulfuric acid fill line.  The Board findings indicate that the facility operator likely did not notice that the sodium hypochlorite fill line was also already unlocked before returning to his work station.  The driver accordingly connected the sulfuric acid discharge hose from the truck into the sodium hypochlorite fill line.  The line used to transfer sulfuric acid looked similar to the sodium hypochlorite line, and the two lines were located in close proximity.

As a result of the incorrect connection, allegedly thousands of gallons of sulfuric acid from the tanker truck entered the facility’s sodium hypochlorite tank.  The resulting mixture created a dense cloud of poisonous gas, which traveled northeast of the facility until the wind shifted the cloud northwest towards a more densely populated area of town.  The Board’s investigation preliminary findings have concluded that “emergency shutdown mechanisms were not in place or were not actuated from either a remote location at the facility or in the truck.”

The Board indicated that a number of design deficiencies increased the likelihood of an incorrect connection.  These included “the close proximity of the fill lines, and unclear and poorly placed chemical labels.”  In addition, neither the facility operator of the tanker truck driver followed internal procedures for unloading operations.

This incident illustrates the necessity of maintaining both safety procedures, and regular training on those safety procedures.  Process safety management reviews and periodic reviews of operating procedures can also assist employers to find process areas that have potential weaknesses or issues that can be corrected, before incidents occur.

Human factors such as the chance of operator confusion appears to have played a role in this incident. Employer’s should continue to evaluate human factors as part of their hazard assessments.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

shutterstock_171692768Seyfarth Synopsis:  OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence.  The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH’s guidance for determining the potential for workplace violence.

OSHA defines “workplace violence” as an act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.  It ranges from threats and verbal abuse to physical assaults, or homicide.  It can involve employees, clients, customers, and visitors.  In addition, OSHA asserts that nearly two million American workers report being victims of workplace violence each year.  According to OSHA: “unfortunately, many more cases go unreported.”

To assist the Agency and its Certified Safety and Health Official (CSHO) inspectors in assessing and citing instances of workplace violence, OSHA has recently released its updated Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, OSHA Directive CPL 02-01-058 (January 10, 2017).  The Directive was last updated in 2011.

The Directive lays out the elements of a General Duty Clause violation, including:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  • The hazard was recognized;
  • The hazard was causing or was likely to cause death or serious physical harm; and
  • There was a feasible and useful method to correct the hazard.

The Directive also lists “known risk factors”, which “shall be considered in determining whether to inspect a worksite, [but which] none of them would individually trigger an inspection.”  The risk factors are: contact with the public; exchange of money; delivery of passengers, goods, or services; having a mobile workplace such as a taxicab; working with persons in healthcare, social service, or criminal justice settings; working alone or in small numbers; working late at night or during early morning hours; working in high-crime areas; guarding valuable property or possessions; working in community-based settings, such as drug rehabilitation centers and group homes.

How Can Workplace Violence Hazards be Reduced?

OSHA indicates that “in most workplaces where risk factors can be identified,” the risk of assault can be prevented or minimized if employers take appropriate precautions.  It suggests that one of the best protections is a zero-tolerance policy toward workplace violence.  The policy, OSHA advises, should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.

By assessing worksites, employers can identify methods for reducing the likelihood of incidents occurring.  “OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces.”

Employers seeking to address this topic in the company’s employee handbook or policy documents should do so carefully, as in the event of an incident, this will be one of the first company documents requested and received by an inspector.

On the enforcement side, we note that OSHA continues to issue citations under the General Duty Clause for alleged workplace violence hazards.  However, all of these citations follow one or more actual instances of violence at work.  OSHA appears to be unable to gather sufficient facts during an inspection to support a citation in advance of an actual instance of workplace violence — even though OSHA’s citations allege the employer should have addressed the hazard in advance.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

By Erin Dougherty Foley, Patrick D. Joyce, and Craig B. Simonsen

Couple driving drunk with the carSeyfarth Synopsis:  In a recent Eleventh Circuit opinion, the Court found that the insurance carrier was responsible, under Georgia law, for the harm caused by an intoxicated employee’s vehicle usage. Great American Alliance Ins. Co. v. Anderson, No. 15-12540 (11th Cir., February 8, 2017)..

In this case, the Court explained, the appellant was involved in a car accident with an intoxicated driver who was driving a company vehicle with his employer’s permission. “After a jury found the driver liable and awarded the appellant one million dollars, the employer’s insurance company, the appellee, filed this suit for a declaration that the driver was not a permissive user – and thus not covered under the applicable insurance policies – because he broke internal company policies.”

The Court found that the Georgia Supreme Court has held that inquiries into permissive use should extend only to whether a vehicle is used for an approved purpose. Citing to Strickland v. Georgia Cas. & Sur. Co., 224 Ga. 487, 162 S.E.2d 421 (Ga. 1968).  “A subsequent decision by the Georgia Court of Appeals, however, held that a company’s internal rules can govern the scope of permissive use, and that violations thereof can negate an individual’s status as an insured.” See Barfield v. Royal Ins. Co. of Am., 228 Ga. App. 841, 492 S.E.2d 688 (Ga. Ct. App. 1997).  Because the District Court followed Barfield, and thereby narrowed the scope of permissive use beyond what was permitted by Strickland, The Court found that it erred, and reversed and remanded.

Strickland, the Eleventh Circuit found, holds that the only inquiry relevant to determining the scope of a generic permissive use clause is whether a vehicle is used for an approved purpose. See 224 Ga. at 492, 162 S.E.2d at 425. In that case the Georgia Supreme Court found that where a vehicle is used for an approved purpose, an employee’s violations of explicit company policies do not foreclose status as a permissive user. See id. at 492, 162 S.E.2d at 425. “We conclude that the “actual use” contemplated and intended by the policy refers only to the purpose to be served and not the operation of the vehicle.”  The Court concluded that the purpose test set forth in Strickland controlled the inquiry into permissive use. Because the District Court extended its analysis further (to include Barfield), it was reversed.

This opinion, for Georgia employers especially, but for employers generally as well, raises important concerns about employee vehicle usage. Employer liability for employee vehicle usage can come from numerous circumstances, but most generally including injuries or accidents caused by employees acting within the scope of their employment.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment Group, Workplace Safety and Health (OSHA/MSHA) Team, or the Workplace Policies and Handbooks Teams.

By Brent I. Clark and Craig B. Simonsen

iStock_000062437178MediumSeyfarth Synopsis: OSHA has just announced a three month delay of enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153.

Crystalline silica is a staple of our modern society.  OSHA notes that it’s a common mineral that is found in many naturally occurring materials, and used in many industrial products and at construction sites.  Materials such as sand, concrete, stone and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone.  Industrial sand is also used in certain foundry work and hydraulic fracturing (fracking) operations.  OSHA estimates that 2.3 million workers are exposed to crystalline silica on the job.

Because crystalline silica is so important to modern society, the OSHA silica standards rulemaking has been contentious.  We have blogged previously how OSHA Proposes Silica Worker Exposure Hazards Rule, OSHA Extends the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule, New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries, and Senators Ask OSHA to Consider the Fracking Industry Economy and to More Fully Extend the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule.

OSHA estimates that nearly 676,000 workplaces will be affected, including in construction and in general industry and maritime.  In addition, the rule is expected to result in annual costs of about $1,524 for the average workplace covered by the rule.  The total cost is estimated by OSHA at “just over $1 billion” (per year).

In an effort to remedy some of the issues and problems in compliance with the new rule, to provide OSHA with the opportunity to conduct additional outreach to the regulated community, and to provide additional time to train compliance officers, the Agency has decided to delay enforcement of the standard from June 23, 2017, until September 23, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. CurtisAdam R. Young, and Craig B. Simonsen

iStock_000004162096LargeSeyfarth Synopsis: A Texas federal court won’t decide the legality of OSHA’s rule regarding the “Tracking of Workplace Injuries and Illnesses” until after the July 1, 2017 deadline for employers to comply with the rule.

A Texas federal court won’t decide the legality of OSHA’s rule regarding the Tracking of Workplace Injuries and Illnesses81 Fed. Reg. 29624 (May 12, 2016) until after the July 1, 2017 deadline for employers to comply with the rule, according to an April 3, 2017 judge’s order.  The order gives attorneys from the Department of Labor and several employer groups challenging the rule until July 5, 2017 to submit a proposed summary judgment briefing schedule (TEXO ABC/AGC v. Perez, N.D. Tex., No. 16-1998).

We had blogged previously about OSHA’s new rule on electronic reporting, drug-testing, retaliation claims, and safety incentive programs.  The TEXO lawsuit seeks a declaratory judgment finding that the rule is unlawful to the extent that it prohibits or otherwise imposes limits on incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs. The plaintiffs allege that the challenged provisions are unlawful and must be vacated because they exceed OSHA’s statutory authority, and because the “underlying findings and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

Business organizations and other industry groups have also sued OSHA in Oklahoma federal court to prevent the implementation of the new injury and illness electronic reporting rule, arguing that OSHA’s proposed online database violates employers’ First and Fifth Amendment rights, is arbitrary, capricious, and otherwise contrary to law, and oversteps OSHA’s authority.  National Association of Home Builders of the United States et al. v. Perez et al., No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017).

While it remains to be seen how either of these legal challenges will fare, the business community has shown a willingness to strongly oppose this new rule — a rule that has been widely criticized as emblematic of regulatory overreach.  However, as the rule remains on the books, employers are required to comply with the July 1 electronic reporting deadline, or face the risk of citations and penalties.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: OSHA has recently “launched” a “Campaign for Safety & Health Programs,” that it indicates is an approach that has been proven by “best in class” employers to reduce injuries and illnesses and improve their businesses.

In a recent news release out of OSHA’s Region 7, it notes that OSHA’s national “Safe and Sound Campaign” will assist employers in keeping workplaces safe and healthy.  OSHA is highlighting both the launch of the “Safe and Sound Campaign” webpage, calling on employers to review their safety and health programs to protect workers, and reduce workplace injuries and deaths, and its “Recommended Practices for Safety and Health Programs” webpage, that offers “practical advice on how any organization can integrate safety and health programs.”

OSHA claims that the safety and health program approach has been proven by “best in class” employers which have reduced injuries and illnesses and improved their businesses. To OSHA,  all effective safety and health programs have three core elements:

  • Management leadership. Top management commits to establishing, maintaining, and continually improving the program, and provides any necessary resources.
  • Worker participation. Effective programs involve workers in identifying solutions. Improved worker engagement is linked to better productivity, higher job satisfaction, and better worker retention.
  • A systematic find and fix approach. All effective programs are centered around a proactive process of finding and fixing hazards before they can cause injury or illness.

OSHA suggests that initiating a safety and health program doesn’t have to be complicated. “There are some simple, do-it-yourself steps to get started.”  OSHA suggests that employers learn more about how to integrate safety and health programs in their organizations by visiting the OSHA Recommended Practices for Safety and Health Programs webpage, and beginning program design and implementation there.

OSHA states that employers “will find that implementing these recommended practices also brings other benefits.” Safety and health programs help businesses:

  • Prevent workplace injuries and illnesses.
  • Improve compliance with laws and regulations.
  • Reduce costs, including significant reductions in workers’ compensation premiums.
  • Engage workers.
  • Enhance their social responsibility goals.
  • Increase productivity and enhance overall business operations.

In addition, Kim Stille, OSHA’s Regional Administrator in Kansas City, states that “with just a phone call, companies can contact OSHA for assistance in achieving safety compliance.  Working together with businesses, unions, and employees …. [to] implement and sustain workplace safety and health programs that can help employees avoid preventable injuries and deaths.”

From our view, it is interesting for OSHA to take a more cooperative approach to worker safety and health issues. Whether this news release and these associated webpages signal a change in the overall approach OSHA will take under President Trump’s new Administration is yet to be seen.  But this is not the tone we have seen from OSHA in the last several years.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

 

By Lawrence Z. Lorber, Annette Tyman, Jaclyn W. Hamlin, and Brent I. Clark

BLACKLISTEDSeyfarth Synopsis: By a vote of 49-48 on March 6, 2017, by the U.S. Senate, both Houses of Congress have now moved to rescind the regulations issued pursuant to President Obama’s Executive Order 13678, entitled Fair Pay and Safe Workplaces but popularly referred to as the “Blacklisting” Order, which required government contractors to report all potential labor violations as well as disclose the basis of pay to employees working on government contracts.  If President Trump signs the rescission resolution, as he is expected to do, the regulations will be rescinded. Under the Congressional Review Act, if a regulation is subject to rescission, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization.

For our readers that are interested in occupational safety and health topics, we are blogging this link to our colleagues “One Minute Memo”, with this introductory note. OSHA citations are covered among the labor laws covered by Executive Order 13673 (Blacklisting Order). The way the Blacklisting Order read was that the covered violations included citations which were not final, which were being contested by the employer, and which may ultimately be withdrawn through settlement or by a Judge once  the employer had a chance to present its defense.  The Blacklisting Order was another example of the Obama Administration’s “guilty until proven innocent” approach to regulating businesses and employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OFCCP & Affirmative Action Compliance Team, the Workplace Safety and Health (OSHA/MSHA) Team, or the Workplace Policies and Handbooks Team.

By Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Congress passes a Resolution to dismantle an OSHA final rule, adopted in December 2016, which despite statutory language to the opposite, “more clearly states employers’ obligations” to record an injury or illness which continues for a full five-year record-retention period.

The Occupational Safety and Health Administration announced in December 2016 a new final rule that OSHA claims “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015. In response, the House of Representatives this week passed a Resolution to block the regulation, stating that “such rule shall have no force or effect.”

The bill, House Joint Resolution 83, passed by a vote of 231 to 191, will now move to the Senate for consideration. The White House had issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

In a statement, Rep. Byrne said: “OSHA’s power grab is not only unlawful, it does nothing to improve workplace safety. What it does do is force small businesses to confront even more unnecessary red tape and unjustified litigation. As Republicans have been saying for years, OSHA should collaborate with employers to prevent injuries and illnesses in workplaces and address any gaps in safety that might exist.”

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the standard six month statute limitations to an employer’s duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.  OSHA did not appeal the Volks decision.  As we previously blogged, OSHA’s rulemaking was a clear attempt to avoid the D.C. Circuit of Appeals ruling.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, James L. Curtis, and Craig B. Simonsen

Employee Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: In a victory for employers, a Texas federal court has refused to dismiss a lawsuit challenging an OSHA interpretation under which non-employee union representatives were permitted to participate in OSHA inspections of non-union employers.

We blogged previously about OSHA’s 2013 standard interpretation guidance letter allowing workers in non-union workplaces to designate a union (or other) representative to act as a “walk-around representative” during OSHA compliance inspections.  At the time, we cautioned that an undesirable consequence of the interpretation was that it allowed outsiders with interests potentially contrary to the employer’s to influence the compliance inspection in an effort to generate union support amongst employees.  Since its issuance, OSHA has used the letter to force union participation in inspections of non-union workplaces over employer objections.

On February 3, 2017, a Texas federal judge put a serious dent in OSHA’s continued reliance on the interpretation in a ruling signaling victory to a rising chorus of objections from the business community.  The ruling came in case in which the National Federation of Independent Business (NFIB) challenged the validity of the interpretation on the following two bases: (1) the letter constitutes a rule subject to notice and comment rulemaking requirements; and (2) the interpretation exceeds OSHA’s authority.

OSHA responded to the suit by filing a motion to dismiss in which it raised a number of threshold arguments before attacking the substance of NFIB’s claims. The court flatly rejected OSHA’s threshold arguments and then sided with NFIB’s argument that the letter was a legislative rule subject to notice and comment rulemaking, not “interpretive guidance” as OSHA contended.  In reaching this conclusion, the court observed that the letter “flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee,” and, in turn, should have gone through the formal rulemaking process.

The Upshot for Employers

While the court’s ruling does not conclude the litigation, it sends a very clear message about how the dispute will likely end in the event OSHA continues to defend its position regarding the letter. Moreover, with a new administration committed to reducing agency overreach and armed with the ability to simply withdraw the letter, it appears the continued viability of the interpretation is very much in doubt.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.