Environmental & Safety Law Update

Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?

Posted in Investigations/Inspections, OSHA Compliance, Workplace Violence

By Adam R. Young and Craig B. Simonsen

Violence, often involving firearms, is an increasingly common occurrence in the 21st century workplace.  The Federal Bureau of Investigation notes that even though homicide is “the most publicized form of violence in the workplace, it is not the most common.”

The FBI defines workplace violence as “any physical assault, threatening behavior or verbal abuse occurring in the work setting.” While some types of these acts “may not be interpreted immediately as violence … many people will witness them in their lifetimes.”

The FBI warns that it is “vital that employers create a sense of hypervigilance in their employees by providing formal training in workplace violence prevention.” To help employers prevent workplace violence, the U.S. Department of Homeland Security (DHS) has recently released an “Active Shooter Preparedness” website intended to make training and other resources available to employers.

Of particular interest are the Active Shooter Webinar materials, including a ninety minute Webinar that the DHS has provided for the private and public sector to “understand the importance of developing an emergency response plan and the need to train employees on how to respond if confronted with an active shooter.” Emphasis added. These Webinar materials include specific tools designed to aid employers in creating and updating policies and procedures to prevent and respond to active shooter scenarios.

Issues covered in the materials include the following:

  • Profile of an active shooter;
  • Responding to an active shooter or other workplace violence situation;
  • Training for an active shooter situation and creating an emergency action plan; and
  • Tips for recognizing signs of potential workplace violence.

The materials include a desk reference guide, a reference poster, and a pocket-size reference card.

By utilizing these materials, employers may help prevent harmful workplace violence incidents. Conflict resolution training and employee assistance programs can help reduce the likelihood of workplace violence and active shooter scenarios.  Employee training and emergency preparedness can help minimize the harm from incidents and ensure that employees safely exit the workplace.

These measures also will help insulate employers from negligence claims alleging a failure to maintain a safe work environment for employees. Consider also that under the Occupational Safety and Health Act, employers must protect employees from known hazards in the workplace.  Employers who fail to implement measures to prevent workplace violence may face citations and increasingly aggressive OSHA enforcement actions.

Accordingly, employers should review DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

Are You in Compliance with OSHA’s New Confined Space Standard for the Construction Industry?

Posted in OSHA Compliance

By Ilana R. Morady, James L. Curtis, and Meagan Newman

IM imageMost employers in the construction industry already know that OSHA issued a new confined space standard for construction that became effective on August 3, 2015.

Companies with employees who enter confined spaces at construction sites must be sure to understand the new regulation and adjust their processes in order to remain in compliance. Although the new standard has been in effect for six months, this blog provides a reminder on some of the key provisions of which employers should be aware.

As background, OSHA used to just have a confined space standard for general industry employers (29 CFR 1910.146). However in recognition that construction sites often host multiple employers and are continually changing, with the number and nature of confined spaces changing as work progresses, OSHA promulgated a new standard, available at 29 CFR Subpart AA 1926.1200, tailored to the unique characteristics of construction sites.

While the general industry standard and the construction standard have many similarities, some key differences are:

  • The construction standard requires coordination when there are multiple employers at the worksite. Specifically, the construction standard imposes duties on three types of employers because of the recognition that different workers may perform different activities in the same space, which can result in hidden dangers:
    • Entry employers. This is defined as an employer who decides that an employee it directs will enter a permit space. Entry employers have a duty to inform controlling contractors (defined below) of any hazards encountered in a permit space. Entry employers also have to develop safe entry procedures.
    • Host employers.  This is defined as the employer who owns or manages the property where the construction work is taking place. If the host employer has information about permit space hazards, it must share that information with the controlling contractor (defined below) and then the controlling contractor is responsible for sharing that information with the entry employers.
    • Controlling contractor. This is defined as the employer with overall responsibility for construction at the worksite. The controlling contractor is responsible for coordinating entry operations when there is more than one entry employer. Controlling contractors must provide any information they have about any permit space hazards to all entry employers. The controlling contractor is also responsible for coordinating work in and around confined spaces so that no contractor working at the site will create a hazard inside the confined space. After the entry employer performs entry operations, the controlling contractor must debrief the entry employer to gather information that the controlling contractor then must share with the host employer and other contractors who enter the space later.
  • Continuous atmospheric monitoring is required under the construction standard “whenever possible.” In contrast, the general industry standard merely encourages continuous atmospheric monitoring where possible and only requires periodic monitoring as necessary.
  • The construction standard requires that a “competent person” evaluate the work site and identify confined spaces including permit-required confined spaces. Notably, the general industry standard does not require that a “competent person” complete this task. A “competent person” is defined under the new standard as someone who is capable of identifying existing and predictable hazards associated with working conditions, including, of course, whether a workspace is permit-required.

Employers who perform construction-related activities need to make sure they understand the requirements of the new confined space construction standard. For more information, go to 29 CFR Subpart AA 1926.1200, or consult with your Seyfarth attorney.

EPA Plans to Ease Path to Superfund Listing: Vapor Intrusion Component to be Added to the Hazardous Ranking System

Posted in CERCLA, Environmental Compliance

By Andrew H. Perellis and Craig B. Simonsen

EPA SignThe U.S. Environmental Protection Agency (EPA) has just announced a proposed rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS).  Addition of a Subsurface Intrusion Component to the Hazard Ranking System, RIN 2050-AG67 (February 3, 2016).

By adding the consideration of vapor intrusion, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List (NPL) would now likely qualify. NPL listing is a prerequisite to EPA spending sums over $2 million to conduct remedial actions. NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

In its support materials, the EPA noted that the Government Accountability Office (GAO) had concluded that “if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon.” The HRS is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and is used by EPA to identify hazardous waste sites eligible to be added to the NPL.

SsI can be defined as the migration of hazardous substances, pollutants, or contaminants from contaminated groundwater or soil into an overlying building. SsI may result in exposure to harmful levels of hazardous substances, that may be amplified by extended time spent in buildings where SsI occurs. The EPA claims that this may raise the lifetime risk of cancer or chronic disease. In an effort to ensure that SsI contamination is consistently evaluated, the EPA has proposed to add an HRS component that will allow EPA to evaluate threats posed by SsI.

The Agency has provided an HRS Subsurface Intrusion webpage to afford the regulated community and interested parties with more detailed information on the rulemaking.

The EPA Administrator, Gina McCarthy, signed the Notice of Proposed Rulemaking on February 3, 2016.  The public comment period for the proposed rule will be sixty days from the date of publication in the Federal Register.

OSHA Issues New Whistleblower Investigations Manual

Posted in OSHA Compliance, Whistleblower

By Meagan Newman

shutterstock_144257470Following through on its April 2015 “clarification” of the investigative standard in whistleblower matters, OSHA issued a new whistleblower investigations manual overnight restating the mission of its investigators.

The former manual instructed investigators to dismiss a case if complainant could not establish the prima facie elements of the relevant whistleblower statute.  The former manual went on to state that even where the prima facie elements are present, an investigation of the complaint should not be conducted if the respondent demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the complainant’s protected activity.

The new manual now instructs investigators that the burden of proof is simply whether “OSHA has reasonable cause to believe a violation occurred.”  This change is consistent with the April 2015 memorandum issued by the Directorate of Whistleblower Protection Programs.  The memorandum stated: “The threshold OSHA must meet to find reasonable cause that a complaint has merit requires evidence in support of each element of a violation and consideration of the evidence provided by both sides during the investigation, but does not generally require as much evidence as would be required at trial.  Thus, after evaluating all of the evidence provided by the employer and the complainant, OSHA must believe that a reasonable judge could rule in favor of the complainant.”

The question now is not whether the complainant can establish the elements of her claim, but rather whether a reasonable judge could rule in complainant’s favor after weighing all the evidence.  Yet, the deletion of the instruction that a case should be dismissed when the employer presented clear and convincing evidence that the adverse action would have been taken regardless of protected activity is potentially troubling for employers.

The manual also includes a new chapter concerning public disclosure of information obtained during whistleblower investigations.  Employers facing current or potential claims under any of the 22 whistleblower statutes investigated by OSHA should carefully evaluate the new manual and consult with their defense counsel.

What To Expect From OSHA In 2016 And Beyond …

Posted in Chemical Safety, Criminal Litigation, Investigations/Inspections, OSHA Compliance

By Mark A. Lies, II, Patrick D. Joyce, and Adam R. Young

Safety at workINTRODUCTION

The New Year is here and with that comes yet another year of enhanced OSHA enforcement and new OSHA regulations. Further, due to the upcoming end of President Obama’s time in office , questions exist as to whether OSHA will continue with its aggressive agenda of enhanced enforcement with increased citations and greater penalties or whether OSHA will respond due to political pressure from the Congress. In either case, the New Year will bring new levels of uncertainty with the agency that we have not seen since the current Administration took office in 2009. This article will address OSHA’s current and upcoming enforcement initiatives and trends, all of which will affect employers in the coming year.

OSHA’S ENFORCEMENT INITIATIVES

Though a number of OSHA’s enforcement initiatives may not technically be considered new for 2016, we can expect that OSHA will continue to increasingly issue citations under the General Duty Clause and the multi-employer worksite doctrine. We can also expect OSHA to continue to focus its attention on the training and protection provided to temporary employees, especially under OSHA’s Powered Industrial Truck (forklift) standard, Personal Protective Equipment (PPE) standards and Lockout Tagout (LOTO) regulations. OSHA has also been stepping up its workplace heat illness initiative, sending expansive subpoena requests to dozens of employers engaged in industries where employees typically are potentially exposed to heat,including manufacturing and construction, even if no injuries or illnesses have been reported. As such, it is important that employers remain aware of these issues to try to limit liability in 2016.

INCREASED OSHA PENALTIES

The new bipartisan budget, passed by both the House and the Senate and signed by President Obama on November 2, 2015, contains provisions that will raise OSHA penalties for the first time in 25 years.  The budget allows for an initial penalty “catch up adjustment,” which must be in place by August 1, 2016.

The maximum initial “catch up adjustment” will be based on the difference between the October 2015 Consumer Price Index (CPI) and the October 1990 CPI.  The October 2015 CPI was released on November 17, 2015, and came in at 237.838.  Based on the October 1990 CPI of 133.500, the maximum catch up adjustment will be approximately 78.16% and the new maximum penalties could be:

Current

August 2016

  • Other than Serious violations:

$7,000

$12,471

  • Serious violations:

$7,000

$12,471

  • Willful violations:

$70,000

$126,000

  • Repeat violations:

$70,000

$126,000

 

After the initial catch up adjustment, OSHA will be required to implement annual cost of living increases, with the adjustment tied to the year over year percentage increase in the CPI.  Adjustments must be made by mid-January each subsequent year.

OSHA has the option to implement a catch up adjustment less than the maximum if the Agency determines increasing penalties by the maximum amount would (1) have a “negative economic impact” or the social costs of the increase outweigh the benefits and (2) the Office of Management and Budget agrees.  However, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels has long advocated for a substantial increase in penalties so it is difficult to envision the Agency seeking anything other than the maximum increase.

INCREASED USE OF THE GENERAL DUTY CLAUSE

Under the Occupational Safety and Health Act’s General Duty Clause, designated as section 5(a)(1), employers are required to protect employees from recognized workplace hazards that are correctible and likely to cause serious harm or death.  Where OSHA lacks a specific standard to address a workplace hazard, the Agency has increasingly used the general duty clause  as a “gap filler” for enforcement.  OSHA thus has used the General Duty Clause to cite employers for a wide range of alleged hazards, and to enforce policies the Agency issued through guidance documents rather than formal regulations, including:

  • ergonomics,
  • illness due to exposure to heat and cold,
  • arc flash/arc blast,
  • combustible dust,
  • chemicals and other hazardous materials for which there is no existing regulation, and
  • fall protection.

In 2016, we expect that the Agency will use the General Duty Clause to cite employers for  repetitive tasks causing ergonomic issues and musculoskeletal disorders.  Moreover, in light of the increasing publicity given to the hazard because of tragic incidents involving workplace shootings, OSHA will continue its emphasis on citing employers for workplace violence incidents and violations, particularly in certain industries such as healthcare, certain retail facilities and public transportation such as taxi cabs.  Employers should maintain policies and training on these issues to prevent liability and business disruptions from OSHA’s increased use of the General Duty Clause in 2016.

OSHA TO REDUCE RELIANCE ON PERMISSIBLE EXPOSURE LIMITS

In a move that could drastically affect day to day operations at a large number of employers, OSHA has signaled in a new permissible exposure limit (PEL) request for information from industry and other stakeholders that it plans to “revoke a small number of obsolete PELs.”  Though the rulemaking did not list the PELs OSHA is considering revoking, the revocation of any PELs opens the door for greater use of the General Duty Clause to regulate employee exposure through standards that are not generally industry standards such as NIOSH standards or ACGIH recommended exposure limits.  Several commentators believe the PEL walk back is simply OSHA’s attempt to increase employer liability for more citations while avoiding formal rulemaking to establish PELs.  Combined with higher fines to be implemented by August, 2016, this could be seen as a new revenue stream for OSHA.

MULTI-EMPLOYER WORKSITE DOCTRINE

The presence of multiple employers, contractors, consultants, and temporary workers at the same workplace is increasingly common in construction, manufacturing and other industries.  OSHA has taken note and made the prosecution of multiple employers at the same workplace a major Agency priority. Under OSHA’s Multi-Employer Worksite policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard, so long as OSHA determines that they violated a duty under the Act. This can occur even when the employer being cited had no employees exposed to the hazard in issue. The Agency will use a two-step process to determine whether more than one employer is to be cited.

The first step is to determine whether the employer is a creating, exposing, correcting, or controlling employer. A creating employer, who caused a hazardous condition, is citable even if the only employees exposed are those of other employers at the cite.  The exposing employer, whose own employees are exposed to the hazardous condition, is citable if (1) it knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, (2) it failed to take steps consistent with its authority to protect its employees.  The correcting employer, who is responsible for correcting the hazardous condition, is citable if it fails to meet its obligations of correcting the condition.  The controlling employer, who has supervisory authority over the worksite and the power to correct safety and health violations or require others to correct them, is citable if it fails to exercise reasonable care to prevent and detect violations on the site.  In General Industry the host employer is typically the controlling employer, while in the Construction Industry it is the General Contractor, and, therefore, carry a higher compliance burden than other employers.

If OSHA determines an employer falls into one (or more) of these four categories, OSHA will then determine whether the employer met its obligations with regard to preventing and correcting the violations.  It is important to note that the Multi-Employer Worksite Policy can also be utilized for criminal prosecution of employers if the underlying elements are present which require (1) a fatality, (2) violation of a specific regulation, (3) the violation was willful and (4) there is a causal connection between the violation and the death. As OSHA continues its aggressive application of the Multi-Employer Worksite Doctrine,  employers should be wary as to potential liabilities for contractors, temporary workers, and other non-employees at their worksites.

FINAL IMPLEMENTATION OF NEW GLOBALLY HARMONIZED SYSTEM (GHS) STANDARDS

OSHA adopted new HCS 2012 SDS standards on December 1, 2013.  Chemical end users must come into compliance with the new SDSs passed down from up-stream suppliers and manufacturers by June 1, 2016.  Employers should not simply swap in a new SDS for an old MSDS and throw away the old MSDS.  Previous MSDSs should be kept on file for several reasons:

  • to provide proof that an employer was compliant with old HazCom standard.
  • the prior MSDSs can be useful evidence in defending against worker’s compensation claims by employees for occupational diseases alleged to have arisen from exposure to hazardous materials during the course of employment and
  • the prior MSDS can be useful evidence in defending third party toxic tort claims alleged to have been caused by exposure to hazardous materials that the employer may have incorporated into products manufactured and sold by the employer or by products that are resold or distributed by the employer.

The new SDSs also presents an opportunity for employers to update their training, hazard communication, and safety procedures for chemicals. The new SDS includes sixteen separate sections, some of which are similar or identical to the existing MSDS sections.  There are, however, a number of significant changes and compliance challenges.

When OSHA begins enforcement against employers on June 1, 2016, it will focus on whether the employer has reviewed the SDSs to identify any new risks as well as whether it has evaluated its existing compliance programs in light of the sixteen requirements in the new SDSs.

The Hazard Communication Standard affects nearly every employer, from chemical manufacturers to retailers to hotels whose employees work with cleaning agents.  Employers need to be aware of their obligations to communicate hazards of chemical substance, and must have a process for updating existing labels, SDS, hazard assessments, and training programs to comply with HCS 2012.  Here are some best practices for employers to follow:

  • Employers should review the new SDSs in a timely fashion upon receipt.
  • If the employer does not receive the SDSs in a timely fashion, it should promptly communicate in writing with the manufacturer to obtain the SDSs. If the employer does not receive the SDSs by June 1, 2016, OSHA has indicated that it will not cite employers who show “good faith efforts” to obtain the SDSs.
  • Employers should evaluate the workplace using the SDSs to identify hazardous chemicals and how their employees may be exposed.
  • Employers whose employees work with or around hazardous chemicals must ensure that they review the updated SDSs and assess each of the employer’s underlying compliance programs (e.g., emergency action plan, storage of flammable and combustible materials, PPE, respiratory protection, etc.) that may be impacted by the SDSs.
  • Employers should ensure that employees who work with or around hazardous chemicals are trained to recognize the pictograms and hazard warnings that will be required under the new Hazard Communication Standard.  Employers should document this training and develop mechanisms to ensure that employees understand the hazards of working with or around hazardous chemicals.

TEMPORARY EMPLOYEES

In 2014, OSHA implemented an initiative to protect temporary employees under the premise that those workers are not provided the same level of training and protections as full-time employees. Under this initiative, OSHA inspectors are required to inquire during inspections whether the inspected worksite has temporary employees and determine whether those employees are exposed to hazardous conditions. Moreover, during the inspection, OSHA will also inquire as to whether the training provided to the temporary workers is in a language and vocabulary the workers can understand. If OSHA determines that the host employer failed to provide adequate training or protections to the temporary employees, OSHA could issue citations not only to the temporary staffing agency, but also the host employer under the multi-employer worksite doctrine.  In order to enforce this initiative, OSHA has hired compliance officers who are bilingual (or certified interpreters) to conduct employee interviews of employees to determine if the employees understood the training.  If the training were in English and the employee is not fluent in English, then the training is not “effective” and the employer can be cited. Likewise, if the training material is in writing and the employee is illiterate, the training may not be considered “effective.”

POTENTIAL RECORDKEEPING RULE CHANGES

One anticipated rule would require employers to submit their injury and illness records “regularly,” electronically instead of only when OSHA requests them through a formal request. With such disclosure, the OSHA 300 Log and supporting documents could be used to trigger OSHA inspections. In addition, the records would be made available to the public so anyone could see an employer’s injury and illness rates.  This opens employers to risk of adverse public reaction if such information becomes available in the media, without understanding the context of the records and the complexity of the recordkeeping requirements so the public may erroneously construe the injury and illness rate as creating an unsafe workplace. This disclosure could also result in additional worker’s compensation litigation by attorneys who could utilize this information to file claims.

Even more concerning for employers is another anticipated rule that would make the recordkeeping requirements an “ongoing obligation.”  OSHA is expected to interpret this change to allow OSHA to cite recordkeeping violations up to five years old, well past the OSH Act’s six month statute of limitations.  This is in direct contradiction to well established case law, including a 2012 D.C. Circuit decision affirming the six month limit.1  There is hope, however, through a recent Eighth Circuit Court of Appeals2 case that prevents OSHA from reinterpreting a rule in such a way  that is “plainly erroneous or inconsistent with the regulation.”  This will be an area to which employers should pay close attention.

NEW SILICA RULE EXPECTED TO BE RELEASED BY JANUARY 2017

Crystalline silica particles are commonly dispersed in the air when workers cut, grind, crush, or drill silica-containing materials such as concrete, masonry, tile, and rock.  OSHA estimates that 2.2 million American workers are regularly exposed to respirable silica, with 1.85 million of those workers in the construction industry.  Other common sources of exposure are building products manufacturing, sandblasting and hydraulic fracturing (fracking) of oil and gas wells.  Crystalline silica exposure can cause lung cancer, chronic obstructive pulmonary disease, and silicosis, an incurable and sometimes fatal lung disease.

OSHA has outlined a new Silica Rule as a top priority since the beginning of the Obama administration.  The Agency sent a draft rule to the White House Office of Management and Budget (OMB) in February 2011, and has pledged to release a final rule by January 2017.  (See the notice of proposed rulemaking at https://federalregister.gov/a/2013-20997).

OSHA’s Silica Rule that will establish permissible silica exposure limits for all workers at 50 micrograms per cubic meter of air, cutting allowable exposures in half in general industry and maritime businesses, and even more in construction. The proposed rule also includes preferred methods for controlling exposure — such as using water saws to reduce airborne silica dust.  The rule will also require that employers conduct periodic air monitoring, limit workers’ access to areas where exposures are high, enforce effective methods for reducing exposures, provide medical exams for workers who have been exposed to elevated levels of silica, and require training for workers about silica-related hazards.

ENHANCED CRIMINAL LIABILITY

OSHA has had the ability to seek criminal liability against employers and managers since the advent of the law if a willful violation of a regulation causes the death of an employee, although a conviction is a misdemeanor with a six month period of imprisonment and a $500,000 penalty for the employer and $250,000 for an individual.

This seemingly minimal criminal liability has now given rise to a recent criminal enforcement agenda announced by the Department of Justice on December 17, 2015, to seek additional liability against employers when there is a workplace safety violation having nothing to do with a fatality. The DOJ will seek criminal penalties under other criminal laws for lying during an OSHA inspection, making false statements in government documents, obstructing justice and tampering with witnesses which are felonies and can result in imprisonment ranging from 5 to 20 years and enhanced monetary penalties.

With the advent of this criminal prosecution initiative, employers must be extremely careful during OSHA inspections, particularly in the aftermath of a fatality or serious injury, not to engage in any conduct that remotely approaches lying during an inspection, obstruction of justice, tampering with witnesses and must engage knowledgeable counsel at the outset to be able to understand and avoid these liabilities.

OSHA’S USE OF THE RAPID RESPONSE FORM

On January 1, 2015, OSHA’s more robust reporting rules took effect, requiring employers to report all work-related in-patient hospitalizations, amputations, and losses of an eye within 24 hours of the event:

  • Within eight (8) hours after the death of any employee as a result of a work-related incident (which includes heart attacks);” and
  • Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or the occurrence of an injury to an employee involving an amputation or loss of an eye, as a result of a work-related incident.”

To streamline these reports, OSHA adopted new procedures: the Interim Enforcement Procedures for New Reporting Requirements.  Under these Interim Enforcement Procedures, OSHA triages new reports to determine whether the report warrants an inspection or a “Rapid Response Investigation” (RRI).  “Category 1” reports — including fatalities, multiple hospitalizations, repeat offenders, and imminent dangers — will automatically trigger an on-site inspection.  “Category 2” reports may trigger an on-site inspection if they involved two of the following factors: continued exposures, safety program failure, serious hazards, temporary workers, referrals from other agencies, and pending whistleblower complaints.  If Category 2 factors are not present, the Agency may initiate a Rapid Response Investigation in lieu of an inspection.

OSHA may initiate a Rapid Response Investigation where the Area Director believes that there is a “reasonable basis that a violation or hazard exists.” The Agency will direct employers to “find out what led to the incident and what  modifications can you make now to prevent future injuries to other workers.”  The Agency will fax a letter instructing employers to “immediately conduct your own investigation into the reported incident and make any necessary changes to avoid further incidents,” and complete a “Non-Mandatory Incident Investigation” form (attached to the letter).  The employer’s report and investigation will be used by the Agency to determine whether to conduct its own inspection.  A word of caution, these rapid response forms could be used against employers as admissions of liability for a violation of a regulation as well as grounds for OSHA to find a “willful” violation if the employer responds in a way that it appears to admit prior knowledge of the hazard which could be an “admission” of liability.  Accordingly, as rapid response forms are increasingly used in 2016, employers should write only limited, careful responses and avoid any language that might support an admission.  Employers must preserve attorney client privilege in the conduct of their underlying root cause analysis investigation and disclosures on the forms, and seek the advice of counsel where necessary.

HOW TO DEAL WITH AN AGING WORKFORCE

According to the U.S. Bureau of Labor Statistics, one in every five American workers is over 65, and in 2020, one in four American workers will be over 55.  Though the overall effects of an aging workplace are not entirely clear, there are several precautions employers should take to protect aging employees:

  • Workstations and job tasks must be matched to the needs of the individual employee.
  • Older workers tend to have fewer accidents but when they do have accidents, the injuries tend to be more severe resulting in a longer recovery time.
  • Older workers tend to experience more back injuries.
  • Older workers are more likely to develop musculoskeletal injuries because they have been performing repetitive motions for a longer period of time.
  • Muscular strength and range of joint movement may decrease.
  • Vision and hearing challenges may be more prevalent in older workers.

OSHA has begun to analyze the potential hazards associated with these employees and will likely propose guidance.

MIDNIGHT REGULATIONS AND INTERPRETATIONS

As with any outgoing administration, there is always the potential for “midnight regulations,” often implemented through rulemaking in the waning days of an Administration, particularly after an election.  Though President Obama will not leave office until January 20, 2017, employers should prepare for last minute regulations or potential “executive orders” that may have lasting effects on employers.  For example, under the Clinton administration, OSHA issued an ergonomics rule shortly after the 2000 election and Congress was forced to repeal the rule shortly after President Bush took office in January 2001.  The likelihood of midnight regulation under President Obama depends heavily on which party wins the presidency in November 2016.  To avoid potential political fallout for a new administration, OSHA will likely implement any new regulations as early as possible in 2016.

Midnight regulations are not the only potential consequence of an outgoing administration.  New last minute interpretations of existing regulations and guidance could also have a significant impact on employers.  While the Eighth Circuit’s ruling in Loren Cook Company, discussed above, may lessen the likelihood of drastic reinterpretations of rules, employers should still be on the lookout for changes in interpretation and implementation that may affect how companies do business.

CONCLUSION

The first seven years of the current Administration have been very challenging for employers under OSHA and other employment laws. 2016 may be the most challenging as the current Administration wants to project its agenda in the waning days of its authority. The President has said that in his last year he intends to “leave it all on the field” as to his agendas which means that employers must continue to be vigilant, keep informed and respond properly.

OSHA and FAA Sign Agreement on Protecting Airline Workers from Retaliation

Posted in FAA, OSHA Compliance, Whistleblower

By Meagan Newman and Craig B. Simonsen

shutterstock_150166427The Occupational Safety and Health Administration (OSHA) and the Federal Aviation Administration (FAA) recently completed a Memorandum of Understanding (December 1, 2015), which will permit the sharing of information under the anti-retaliation provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. § 42121.

AIR21 prohibits air carriers and air carrier contractors and subcontractors from firing or retaliating against airline workers who complain about violations of aviation regulations. Dr. David Michaels, in a December 23, 2015, press release, indicated that “airline industry employees have a right to speak out about unsafe workplaces and practices without fear of losing their jobs.” “Through this agreement with the FAA, we are reinforcing the message that silencing workers who try to do the right thing is unacceptable for workers and also unsafe for the public.”

Under the MOU, the FAA will refer employees who complain of retaliation to OSHA, and OSHA will provide FAA with copies of complaints, findings, and preliminary orders filed under the AIR21 whistleblower provision. In addition, OSHA and FAA will jointly develop training materials to assist “FAA enforcement staff in recognizing retaliation complaints and OSHA enforcement staff in recognizing potential violations of airline safety regulations revealed during investigations.”

The MOU was effective on December 1, 2015.

OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations.

If you would like further information on this topic, please contact a member of the Whistleblower Team, your Seyfarth attorney, Meagan Newman at mnewman@seyfarth.com, or Craig B. Simonsen at csimonsen@seyfarth.com.

Energy Insights: An Update from the Fourth Quarter of 2015

Posted in Alternative Energy, Climate Change

By Robert S. Winner

In this edition of Seyfarth Shaw’s Energy Insights Newsletter, our Energy and Clean Technologies team covers important developments in Q4 2015 for the energy industry including 1) collateral tax benefits granted to YieldCos, 2) the finalization of the EPA’s renewable fuel targets, and 3) climate change initiatives in the wake of the Paris Agreement in some unlikely places.

Renewable Energy YieldCos May Have Received a Surprise Boost from Congress

The renewable energy industry is breathing a sigh of relief in the wake of Congress’s surprising broad support and passage of the Consolidated Appropriations Act of 2016 in the final days of 2015, which extended, both prospectively for five years and retroactively for 2015, the production tax credit (PTC) and the investment tax credit (ITC).  The PTC provides wind developers with a credit of 0.023/kWh for electricity generated to the power grid, phasing down at 80% of its present value in 2017, 60% in 2018 and 40% in 2019, and the ITC provides solar projects that are under construction by no later than December 2019 to fully qualify for the 30% ITC on costs, falling to 26% for projects starting construction in 2020 and 22% for projects starting construction in 2021.  While this is definitely good news for developers of these types of renewable energy projects, who, but for the length and certainty of these credits, would not be able to or find it more difficult to start, plan, finance or complete their projects, the tax extensions also are potentially good news for public companies known as “YieldCos” who purchase, manage and operate projects with predictable cash flows, typically through long-term power purchase agreements, to generate healthy dividends for their investors.

YieldCos are those dividend growth-oriented public companies that were formed to own operational assets to produce predictable cash flows, typically based on long-term power purchase contracts. YieldCos rose in popularity in 2013 as the renewable energy’s answer to the Master Limited Partnership (MLP) for those assets that, for tax reasons, do not qualify for the tax benefits of an MLP.  But their public stock prices have been in freefall through 2015.  Some have speculated the precipitous price drop is related to commodity oil and gas prices, or the future prices of electricity.  It can also be argued that the price drop is a result of project pipeline stagnation due to the uncertainty in passage of the tax credit extensions through 2015.  Aside from general market conditions, it will be interesting to follow the long term viability and strength of YieldCos.

At Long Last, the EPA Finalizes and Increases Renewable Fuel Standards

On November 30, 2015, after a two year delay, and a court-ordered mandate, the Environmental Protection Agency (EPA) released new renewable fuel targets for 2015 and 2016 under the federal Renewable Fuel Standard (RFS), including levels retroactive to 2014 and prospectively for biomass-based diesel through 2017.  The EPA believes the final requirements will boost renewable fuel production and provide for robust, achievable growth of the biofuels industry.  The EPA states that the final 2016 standard for advanced biofuel is nearly 1 billion gallons, or 35 percent higher than the actual 2014 volumes, while the total renewable standard requires growth from 2014 to 2016 of over 1.8 billion gallons of biofuel, or 11% higher than 2014 actual volumes.  The RFS targets are welcome news to developers and manufacturers of advanced biofuels who have, like several other regulated industries including wind and solar, found it difficult to plan and finance the development of advanced biofuels and the plants that manufacture them.

The ethanol industry, though, is less enthusiastic about the boost in standards given something called the “blend wall.”  The “blend wall”, as it is known, is the maximum quantity of ethanol that can be sold each year given legal or practical constraints on how much can be blended into each gallon of motor fuel.  According to the proponents of the ethanol industry, most notably the Renewable Fuels Association, the constraints are driven by the oil industry who has “steadfastly refused to invest in blender pumps, storage tanks, and other infrastructure compatible with E15-and-higher ethanol blends.”  Neither industry wants to be left behind in the advancement of renewable fuels.  How each survives in the renewable fuel market remains to be seen.

The First Actions under the Historic Paris Agreement on Climate Change Are From Auckland?

On December 12,  2015, 195 countries agreed to combat climate change, the first-ever universal and legally binding agreement of its kind.  The agreement’s main aim is to keep a global temperature rise this century well below 2 degrees Celsius and to drive efforts to limit the temperature increase even further to 1.5 degrees Celsius above pre-industrial levels.  The achieve this goal, the Paris Agreement addressed the following areas: (1) mitigation – reducing emissions fast enough to achieve the temperature goal, (2) a transparency system and global stock-take – accounting for climate action, (3) adaptation – strengthening ability of countries to deal with climate impacts, (4) loss and damage – strengthening ability to recover from climate impacts, and (5) support – including finance, for nations to build clean, resilient futures.

Much has been written about how the breakthrough agreement was achieved. Reasons range from stellar diplomacy over decades to China’s inability to ignore its economic growth and carbon footprint resulting therefrom.  But with this framework in place, which country has taken the first action towards compliance?  Yes, you guessed it ……Auckland, New Zealand.  While it is true that the United States has extended renewable energy tax credits and boosted renewable fuel standards, and the EPA has reinforced the U.S.’s commitment to the President’s Clean Power Plan, and even China, in an unprecedented move, has halted the approval of any new coal mines for three years (unlike India who still plans to double coal output although, to be fair, seeking to quadruple solar installations), it is the Mayor of Auckland, New Zealand that has stepped up efforts towards meeting its already ambitious pledged goals.  In addition to being admitted to the C40 climate group, the Mayor has announced plans to move to a zero waste city, with further announcements to transform its public transport system and cycle and pedestrian walkways, citing a statistic that 35% of its CO2 emissions come from road transport.  Many experts have cited local initiatives and private investment will be the ultimate drivers of meeting the Paris Agreement goals, and Auckland is an excellent example thereof.

OSHRC Law Judge Orders Trial on Enterprise-Wide Hazard Abatement for Powered Industrial Trucks Standard

Posted in OSHA Enforcement, OSHA Litigation

By Meagan Newman and Craig B. Simonsen

iStock_000059911458_Large.jpgAn Administrative Law Judge has held that the Occupational Safety and Health Review Commission (OSHRC) “may have authority under the Occupational Safety and Health Act” to order abatement measures sought by the Occupational Safety and Health Administration beyond the specific violations OSHA identified in its citations. Secretary v. Central Transport, LLC, OSHRC Docket Nos. 14-1452, 14-1612, and 14-1934 (December 7, 2015).

OSHA cited the employer for 14 violations of workplace safety and health standards at the company’s shipping terminal. OSHA proposed $330,800 in fines. The employer filed a notice of contest and the instant litigation commenced.

According to the U.S. Department of Labor’s (DOL’s) December 23, 2015, news release, in its complaint to the OSHRC, the DOL alleged that the company failed to comply with the OSHA standards for the safety of powered industrial trucks at locations other than the inspected worksite, and requested an order compelling the employer to comply with the powered industrial truck standard at all its locations. The employer, in response, filed a motion asking the OSHRC to strike the DOL’s claim for enterprise-wide abatement, arguing that the Occupational Safety and Health Act does not permit it.

Administrative Law Judge Carol A. Baumerich, in her order on the employer’s motion to strike, found that the OSH Act’s provision authorizing the remedy of “other appropriate relief” provided a basis for allowing the DOL’s claim for enterprise-wide abatement, “at all locations where like violations exist, to proceed to trial.”

The issue in this case is considerable. The employer, as noted in the ALJ’s Order, indicated that it operated about 170 shipping and service centers in the United States. Further, the possible implications for other employers with multiple worksites and common operations are truly significant.

Enhanced Criminal Prosecutions of Worker Safety Violations – Employers Beware

Posted in Criminal Litigation, OSHA Enforcement

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

Careful: New Inspection Guidance for Poultry Processing Facilities

Posted in Food Regulation, OSHA Compliance

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Empty Hooks In A Meat Processing FactoryThe Occupational Safety & Health Administration recently issued its “Inspection Guidance for Poultry Slaughtering and Poultry Processing Establishments” (October 28, 2015).

OSHA explains in the Guidance that workers employed in the poultry industry may face many hazards, including high noise levels, dangerous equipment, musculoskeletal disorders, and hazardous chemicals. Poultry processing is highly mechanized, so walkways may be adjacent to conveyors. Processing meat uses a large amount of water that may splash on walkways and stairs. The addition of scraps of fatty skin from the poultry carcass can create slippery surfaces.

OSHA indicates that it believes that poultry workers suffer serious injury at a rate that is almost double private industry. Also, OSHA contends that “musculoskeletal disorders are of particular concern and continue to be common among workers in the poultry processing industry.”

In a multi-agency cooperation, the Guidance specifies that OSHA inspectors (CSHOs) should identify if the poultry processing plant has adopted the United States Department of Agriculture (USDA) New Poultry Inspection System (NPIS). Facilities that have adopted NPIS submit an annual attestation to the management member of the local Food Safety Inspection Service (FSIS) circuit safety committee, stating that it maintains a program to monitor and document any work-related conditions. The elements of this program include:

  1. Policies to encourage early reporting of symptoms of work-related injuries and illnesses;
  2. Notification to employees of the nature and early symptoms of occupational illnesses and injuries, in a manner and language that workers can understand, including by posting in a conspicuous place or places where notices to employees are customarily posted, a copy of the FSIS/OSHA poster encouraging reporting and describing reportable signs and symptoms;
  3. Monitoring on a regular and routine basis of injury and illness logs, as well as nurse or medical office logs, workers’ compensation data, and any other injury or illness information available; and
  4. A commitment to issuing FSIS notice, “Procedures for Notifying the Occupational Safety and Health Administration (OSHA).” The notice establishes a procedure for FSIS inspection personnel to notify OSHA directly of serious workplace hazards that may affect non-federal establishment personnel in meat and poultry products establishments and in egg product plants.

The Guidance reviews numerous alleged issues regarding musculoskeletal disorders and outlines potential means to reduce risk factors.

The Guidance includes a sample “alleged violation description” for potential ergonomics hazards with recommended abatement action and “additional methods of reducing the ergonomic hazards.” This section of the Guidance may be of particular interest to employers because it provides insight into the hazards OSHA believes exist (before they enter the work place) and now OSHA views abatement.

Note that the guidance directs that because “these hazards have been identified nationwide,” State Plans are expected to follow the guidance provided in this memorandum.

Employers in this industry sector need to be zealous to review and update their safety and training programs to encompass the issues covered in this Guidance.  You may be certain that the Agency’s inspectors will be looking for that too. The Guidance is also of interest to employers in other industries because it provides insight into OSHA’s focus on and approach to potential ergonomic hazards.