Environmental & Safety Law Update

CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders

Posted in California, OSHA Compliance, Workplace Violence

By Brent I. ClarkJoshua M. Henderson, and Craig B. Simonsen

shutterstock_65596348Seyfarth Synopsis: The California Division of Occupational Safety & Health Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care.

The California Division of Occupational Safety & Health (Cal/OSHA) Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care, CCR Title 8, Section 3342. The Notice of Addition of Documents to California Code of Regulations was signed September 27, 2016, and the rule was passed by the Board on October 21, 2016. The draft has now been submitted to the Office of Administrative Law for review and approval (or not). If approved the rules will become final and will be submitted to the Secretary of State for promulgation.

We had blogged in 2015 about the Cal/OSHA draft proposed regulation that would require health-care employers, home health and hospice providers, and emergency responders to develop workplace violence-prevention plans, train their employees, and keep records related to workplace violence incidents. If adopted, the regulations also require certain hospitals to report violent incidents that resulted in an injury, involved the use of a firearm or other dangerous weapon, or present an urgent or emergent threat to the welfare, health or safety within 24 hours and all incidents within 72 hours.

Based on the definition of “reportable workplace violence incident” employers are required to report incidents that did not result in an injury if there was a high likelihood that injury, psychological trauma, or stress would result, or the incident involved the use of a firearm or other dangerous weapon. The regulations further require employers to take immediate corrective action where a hazard was imminent and take measures to protect employees from identified serious workplace violence hazards within seven days of the discovery of the hazard. Additionally, employers are required to maintain a “Violent Incident Log.”

The rule follows the enactment of SB 1299, requiring Cal/OSHA to have a workplace violence prevention regulation for healthcare workers promulgated by July 1, 2016. Yet, California was not alone. The regulation comes as emphasis on workplace violence increases in both federal and state plan OSHA jurisdictions. For instance, in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers”, in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA”, in December 2015 “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting”, and in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers”.

As part of the employer’s Injury and Illness Prevention Program (IIPP), under section 3342(c), the final rules require a “Workplace Violence Prevention Plan” (Plan) that is “in effect at all times in every unit, service, and operation. The Plan shall be in writing, shall be specific to the hazards and corrective measures for the unit, service, or operation, and shall be available to employees at all times. The written Plan may be incorporated into the written IIPP or maintained as a separate document”. In addition, the final rules do incorporate the “Violent Incident Log” provisions. The rules require that the “employer shall record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation”.

Covered employers in California should take care to evaluate their workplaces for potential workplace violence hazards and institute–and enforce–policies concerning training and reporting.  Certainly employers in California, or with a business presence in California, there is a heightened need to evaluate compliance with these new rules. In addition to modified policies, procedures, and training systems, these new rules may require substantial changes including physical facility changes and staffing increases.

Note that with or without these new rules, in California or out, an administrative enforcement action in the event of a workplace violence incident or related civil liability is a possibility. The new rules also incorporate substantial training, reporting, and recordkeeping provisions. Federal OSHA enforces workplace violence under the General Duty Clause. We would not be surprised to see the Federal OSHA referring to the California Rule in its citations in the future.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the Workplace Policies and Handbooks Team.

Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule

Posted in OSHA Compliance, OSHA Enforcement, OSHA Litigation

By Brent I. Clark, Mark A. Lies, II, Patrick D. Joyce, Kay R. Bonza, and Craig B. Simonsen

worksafetySeyfarth Synopsis: Despite an ongoing lawsuit over its rules, OSHA issues interpretation for its May 2016 retaliation and recordkeeping rule.

We previously blogged that OSHA had again delayed, to December 1, 2016, enforcement of the anti-retaliation provisions of its new rule to Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). Enforcement of the rule was originally scheduled to begin in August 2016. Although enforcement of the Rule has been delayed and the Rule is being challenged in Court, on October 19, 2016, OSHA hastily issued a non-binding interpretation of the Rule, along with an interesting list of “Q&As.”

The interpretation clarifies the longstanding implication that employers must have a “reasonable” procedure for employees to report work-related injuries and illnesses under 29 C.F.R. § 1904.35(b)(1)(i), reiterates the existing prohibition on retaliation against employees for reporting work-related injuries or illnesses under section 11(c) of the OSH Act, 29 U.S.C. § 660(c), discusses discipline of employees for violating employer health and safety policies, explains OSHA’s position that post-accident drug testing policies be “objectively reasonable,” and clarifies OSHA’s policy on employer incentive programs.

Under the interpretation, for OSHA to establish an employer violation of section 1904.35(b)(1)(i), the Agency must show that the employer either wholly “lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable.” Previously, the reasonableness requirement was implied. Specifically, an “employer’s reporting procedure is reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting.”

For example, the interpretation states that it would be reasonable to require an employee to report a work-related injury or illness “as soon as practicable,” but unreasonable to require employee reporting “immediately.” Further, it would be reasonable to require reporting through means such as phone, email, or in person, but unreasonable to require employees to report in person if they are unable to do so.

The interpretation also discusses OSHA’s stance in the preamble to the final Rule that its compliance officers can investigate employee retaliation claims and cite an employer, even though they lack the specialized training that section 11(c) investigators receive. The interpretation takes the position that the Rule merely clarifies the employer policies that OSHA believes are unreasonable, but does not establish new obligations or restrictions on employers. Even so, OSHA’s Q&A makes clear that it’s new anti-retaliation provision would allow OSHA to cite an employer for alleged retaliatory action well beyond the 30-day time limitation for bringing a complaint under section 11(c).

To establish a violation of section 1904.35(b)(1)(iv), prohibiting retaliation for reporting injuries and illnesses, OSHA must have “reasonable cause to believe that a violation occurred.” To make this showing, the interpretation requires OSHA to demonstrate that:

  1. The employee reported a work-related injury or illness;
  2. The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
  3. The employer took the adverse action because the employee reported a work-related injury or illness.

OSHA’s interpretation clarifies that section 1904.35(b)(1)(iv) is not intended to prevent employers from taking disciplinary steps against employees who violate employer health and safety policies. Rather, it “prohibits disciplining employees simply because they report a work-related injury or illness” without any underlying misconduct. OSHA will look to circumstantial and direct evidence, as well as whether the employer treated other employees who violated the same rule the same way, to determine whether the employee’s discipline was due to the violation of an employer health and safety policy or if it was retaliatory.

In addition, the interpretation addresses employer post-accident drug testing policies and when OSHA believes those policies may be retaliatory rather than investigatory or disciplinary. Under section 1904.35(b)(1)(iv), a post-accident drug testing policy will not be retaliatory when the employer has an “objectively reasonable” basis for conducting the testing. Drug testing conducted pursuant to state and federal requirements will not be considered retaliatory either.

OSHA asserts that the central inquiry as to whether a post-accident drug testing policy is objectively reasonable is “whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” Again, OSHA will look to see if the employer treated all employees in a similar manner or whether the employer only tested the reporting employee. For example, if a forklift runs into a pallet of boxes and the boxes fall on an employee, injuring that employee but not the forklift driver, and the employer only drug tests the injured employee, OSHA will likely find retaliation. However, if the employer drug tests both the injured employee and the uninjured forklift driver or only the uninjured forklift driver, OSHA will likely not find retaliation.

Finally, OSHA explains that section 1904.35(b)(1)(iv) does not prohibit employer safety incentive programs. Rather, “it prohibits taking adverse action against employees simply because they report work-related injuries or illnesses.” OSHA mentions “substantial award(s)” and suggests some level of materiality, then states that withholding any benefit due to the reporting of a work-related injury or illness, related to an incentive program or not, would likely be found retaliatory. However, OSHA says that conditioning a benefit on compliance with safety rules or policies or participation in safety-related activities would not be retaliatory.

For example, raffling off a gift card to employees who attend a safety training or providing a free lunch at the end of the month if employees have universal compliance with safety rules, such as wearing hard hats, would not be retaliatory. OSHA “encourages employers to find creative ways to incentivize safe work practices and accident-prevention” that do not penalize employees for reporting work-related injuries or illnesses.

Whether or not an adverse action is taken pursuant to a disciplinary policy, post-accident drug testing policy, or employee incentive program, “OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason.”

While OSHA has issued its guidance on how it hopes to enforce Section 1904.35(b)(1)(i) and (iv), such guidance may be premature as the Texas District Court must still decide whether it will order OSHA to delay enforcement of the Rule until the court has fully decided the Rule’s legality. Further, OSHA’s interpretation is not a law or regulation and is not necessarily how a judge will view the Rule.

We will continue to keep you updated as this issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

DC Circuit Finds OSHA “Interpretation” Narrowing Retail Exemption Under the Process Safety Management Standard Really a “Standard” Subject to Rulemaking Process

Posted in Catastrophe Response, Chemical Safety, Emergency Planning, OSHA Compliance

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

bottleSeyfarth Synopsis: In a challenge brought by trade associations for the farm supply and fertilizer industries, the D.C. Circuit vacates OSHA memorandum narrowing the retail exemption from the PSM standard.

The U.S. Court of Appeals for the District of Columbia Circuit recently ruled against OSHA on a Petition for Review of an OSHA interpretative memorandum in Agricultural Retailers Ass’n & Fertilizer Inst. v. United States Department of Labor, No. 15-1326 (D.C. Cir. Sept. 23, 2016).

In this case, the Agricultural Retailers Association and the Fertilizer Institute sought review of a July 22, 2015 OSHA memorandum and interim policy interpretation that had significantly narrowed the Retail Facilities Exemption to the Process Safety Management of Highly Hazardous Chemicals (PSM) standard, 29 C.F.R. § 1910.119.   The challenged interpretation had a dramatic effect on agricultural retailers that provide fertilizers to end users in the agricultural industry.  In that regard, the interpretation swept in many previously-exempt fertilizer and farm supply retailers into coverage under the onerous PSM standard.

OSHA issued the interpretation after a 2013 explosion at a West, Texas fertilizer supplier left 15 people dead and many others injured. Under the interpretation, OSHA retreated from the so-called “50 percent test” for determining whether a seller of highly hazardous chemicals qualified for the retail exemption.  Under that test, an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user.”  Application of this test meant that fertilizer suppliers typically fell within the exemption despite having large quantities of highly hazardous chemicals at their establishments.  The challenged interpretation applied a different, much narrower, test to determine applicability of the exemption.  Under that test, retail facilities included only those “organized to sell merchandize in small quantities to the general public” as set forth sectors 44 and 45 of the NAICS Manual.  This definition precluded employers that sold or distributed large, bulk quantities of highly hazardous chemicals (i.e., farm and fertilizer supply businesses) from relying upon the retail exemption.

The thrust of the petitioners’ challenge to OSHA’s memorandum was that it was actually an OSHA standard, not an interpretation, and that, in turn, OSHA was required to follow rulemaking procedures, including notice-and-comment requirements. OSHA admittedly did not follow these procedures.  OSHA contended that rulemaking procedures did not apply because its action was a mere interpretation of a standard, and that its memorandum did not issue or modify a “standard.”  The D.C. Circuit rejected OSHA’s argument and agreed with petitioners.  In so doing, the court held that the memorandum amounted to a “standard within the meaning of the OSH Act” because its purpose was to correct “a particular significant risk,” rather than guide general enforcement.  Given that determination and OSHA’s admitted failure to follow rulemaking procedures, the court granted the petition and “vacated” OSHA’s memorandum.

For the time being, this means that employers (including agricultural retailers) may once again rely on the “50 percent rule” for determining applicability of the retail exemption to the PSM standard. How long that reprieve lasts remains to be seen given OSHA’s apparent commitment to this issue, but one thing is clear — any future change to the retail exemption will afford stakeholders the opportunity to be heard through notice-and-comment procedures.

In the meantime, we will continue to monitor and keep you updated on this issue as it develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

OSHA Updates and Publishes “Top Ten” Most Frequently Cited Standards

Posted in OSHA Compliance, OSHA Enforcement

By James L. Curtis and Craig B. Simonsen

Warehouseman after accident at heightSeyfarth Synopsis: OSHA just updated its annual list of the top ten cited standards. The list provides a starting point for employers reviewing their own safety programs.

OSHA just announced the Agency’s annual listing of the “Top Ten Most Frequently Cited Standards.” OSHA’s release noted that, “one remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.” Statistically, he noted that more than “4,500 workers are killed on the job every year, and approximately 3 million are injured.”

The ten most frequently cited standards are as follows:

OSHA’s 2015 Top Ten image from OSHA.gov.

As in years past, the Top Ten listing identifies fall protection, hazard communication, scaffolding, respiratory protection and lockout/tagout (LOTO) as major sources of citations. This annual listing is a testimony to both the difficulty of consistent compliance with these standards, and OSHA’s ongoing emphasis on these hazards.

Employers should use this listing as a reminder to emphasize these areas during new employee orientation and existing employee refresher training. Employers should also realize that OSHA will absolutely be looking for violations in these areas when they visit your worksite.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.


OSHA Again Delays Enforcement Date for New Workplace Injury and Illness Reporting Rule

Posted in OSHA Compliance, OSHA Enforcement, OSHA Litigation

By Mark A. Lies, II, Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

worksafetySeyfarth Synopsis: After a lawsuit was filed against OSHA challenging its May 2016 retaliation and recordkeeping rule, OSHA again delays the rule’s effective date.

OSHA announced today that it has again delayed the effective date for enforcement of the anti-retaliation provisions of its new rule to Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). The rule was originally scheduled to take effect in August 2016, but is now scheduled to take effect on December 1, 2016.

We had previously blogged about the OSHA’s new rule on drug-testing, retaliation claims, and accident reporting. Then in response to the new rule, and which we also blogged about, the National Association of Manufacturers (NAM) and others brought a suit alleging that OSHA’s new rule goes too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016).

In its announcement, OSHA states that it is delaying enforcement of the anti-retaliation provisions because the “U.S. District Court for the Northern District of Texas requested the delay to allow additional time to consider a motion challenging the new provisions.” That motion is a preliminary injunction motion brought by the plaintiffs asking the court to stay enforcement of the rule nationwide until it has been fully litigated in the courts.

In the TEXO ABC/AGC lawsuit, the plaintiffs allege that OSHA is “putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.”

The lawsuit seeks a declaratory judgment finding that the rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs.

We will continue to keep you updated as this issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

Asleep at the Wheel: Trucking Company’s Sleep Apnea Policy and Procedures Reviewed by Federal Courts

Posted in OSHA Compliance

By Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

iStock_000021314720_MediumSeyfarth Synopsis: Recently decided court case finds that motor vehicle carriers may lawfully require overweight drivers to submit to a medical examination testing for obstructive sleep apnea.

We had previously blogged about the U.S. Department of Transportation’s Advance Notice of Proposed Rulemaking on the “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.” 47 Fed. Reg. 12642 (March 10, 2016).  The American Journal of Industrial Medicine, with the National Institute for Occupational Safety and Health (NIOSH), had found that U.S. long-haul truck drivers were twice as likely to be obese compared to the adult working population, as well as more likely to smoke and suffer from other risk factors for chronic disease. “Obesity and Other Risk Factors: The National Survey of U.S. Long-Haul Truck Driver Health and Injury” (Jan. 2014).

An interesting Eighth Circuit Court of Appeals case, Parker v. Crete Carrier Corp., et al., No. 16-1371 (8th Cir. Oct. 12, 2016), delves into the underlying issues related to these previous blogs. Notably, the oral argument in front of the Court is available for listening.

Crete Carrier Corporation (Crete) required its truck drivers with a Body Mass Index (BMI) of 35 or greater to submit to medical examinations to determine whether they had obstructive sleep apnea. Drivers found to have obstructive sleep apnea were placed in a treatment regimen. One driver, Robert J. Parker, refused to submit to the examination. In response, Crete stopped giving Parker work. Parker then sued Crete, alleging it violated the Americans with Disabilities Act (ADA) by requiring the examination and discriminating on the basis of a perceived disability. The District Court granted summary judgment to Crete. Parker appealed.

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) requires commercial vehicle drivers to get medical examinations every two years to ensure they are physically qualified to operate commercial vehicles. The exam measures height and weight, assesses health history, tests vision, hearing, blood pressure and urine, and physically examines body systems.  Two advisory committees, the Medical Review Board and the Motor Carrier Safety Advisory Committee, have recommended that FMCSA amend its certification standards to reduce the risks from drivers who have obstructive sleep apnea.

When analyzing Parker’s claim against Crete, the court noted that an employer requiring a particular class of employees to get a medical exam must show that the exam is job-related and that it is a “business necessity.” To constitute a “business necessity,” there must be a reasonable basis for concluding that the class of drivers required to be examined poses a genuine safety risk. Moreover, the employer’s exam requirement must enable the employer to reduce that risk.

The Eighth Circuit concluded that Crete’s suspension of Parker was not a violation of the ADA because Parker refused to submit to a lawful medical examination. Crete factually established that “untreated obstructive sleep apnea tends to impair driving skills, increasing the risk of motor vehicle accidents by 1.2- to 4.9-fold.”  Moreover, “a sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis.”  Because obesity and BMIs above 33 are closely linked to obstructive sleep apnea and seeking treatment for sleep apnea decreases the risk of motor vehicle accidents, the Court found that the sleep study requirement for overweight drivers was a business necessity.

In light of the findings on sleep apnea, employers in the long-haul trucking industry should pay attention for changes in the law related to enhanced driver testing requirements, and ensure that any driver testing policies for a subset of drivers would constitute a business necessity in the eyes of the courts.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team, the Workplace Counseling & Solutions Team, or the ADA Title III Team.

EPA’s New Strategy for Addressing the Retail Sector under RCRA

Posted in Environmental Compliance, Retail

By Jeryl L. Olson, Patrick D. Joyce, and Craig B. Simonsen

bottleSeyfarth Synopsis: EPA publishes new Retail Strategy in an attempt to address the unique challenges the retail sector faces in complying with RCRA’s hazardous waste regulations.

The regulation of hazardous waste in stores, warehouses and during reverse logistics processes in the retail sector has been fraught with difficulty for the retail industry, in large part due to competing, and inconsistent rules by state and local governments. and California. The U.S. Environmental Protection Agency (EPA) has indicated it is looking to balance its goals of minimizing impacts to the environment, without undue regulatory burdens on an industry that does not have significant experience in the morass of RCRA requirements.

We have previously blogged extensively on this topic, encouraging the guidance now being considered by EPA : “DOT Publishes Final Rule on “Safe Reverse Logistics” for Retail “Returns” of Hazardous Materials to Distribution Centers,” “OSHA Enforcement Memo and Interim Policy on the Process Safety Management Retail Exemption,” “EPA Rulemaking on Hazardous Waste Management in the Retail Sector, and “Warning! Retailers’ Environmental Enforcement Initiative in New York”.

According to EPA, it’s Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework is a “next step” in EPA’s goal to increase clarity for retailers on how retail hazardous wastes should be handled. EPA notes that its ongoing outreach efforts, combined with the comments received it received on the February 2014 Notice of Data Availability (NODA) for the Retail Sector (79 Fed. Reg. 8926), have “improved the Agency’s understanding of the challenges arising when managing unused/intact consumer goods that have become unsalable at retail stores and are moving through the reverse distribution system.”

EPA’s going-forward Strategy uses a three-pronged approach:

  1. Issue Agency policy, guidance and rulemaking to ensure a better fit between RCRA regulations and the retail sector.
  2. Research retail hazardous waste management practices and related issues in the area of reverse distribution, universal waste and other challenges.
  3. Using the results of that evaluation and research, identify additional approaches to address outstanding RCRA retail sector issues if needed.

In the near term, EPA intends to focus its efforts on finalizing the related Pharmaceuticals and Generator Improvements rules, which only tangentially address retail hazardous waste. Over the longer term, EPA intends to more directly address the retail sector’s concerns by:

  1. Issuing a guide to recycling aerosol cans, which EPA found make up the largest percentage of retail hazardous wastes (35%);
  2. Proposing rules to add aerosol cans, pesticides, an/or electronics to the federal universal waste rules, allowing for simplified disposal; and
  3. Developing a policy that directly addresses the reverse distribution process for the retail sector as a whole.

In an attempt to show that it has not simply been sitting around over the 2+ years since the NODA and the highly publicized state enforcement cases against retailers, EPA has provided a diagram showing the flow of retail items and relationships among various organizations that manage consumer goods and wastes based on the research it has completed so far.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

Retail Detail: California Adopts New Regulations For Warnings Under Proposition 65: CAVEAT VENDITOR (Sellers Beware)

Posted in California, Environmental Compliance, Retail

By Jay W. Connolly and Aaron Belzer

bottleSeyfarth Synopsis: New California regulations provide more specific guidance on the content of Prop 65 “safe harbor” warnings, and on the corresponding methods for providing such warnings.

Come August 30, 2018, consumer products to be released into the California marketplace must meet new regulations under California’s infamous Proposition 65. On August 30, 2016, the California Office of Administrative Law approved the adoption of new regulations for clear and reasonable warnings under Proposition 65.

Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to California consumers before knowingly and intentionally exposing them to known carcinogens or reproductive toxins (“Listed Chemical”). Proposition 65 requires the Governor of California to publish and periodically update a list of known carcinogens and reproductive toxins. To date, almost 1,000 substances appear on this list.

Under the existing regulations, a warning is “clear’ if it effectively communicates that the Listed Chemical in question is known to the State of California to cause cancer and/or birth defects or other reproductive harm. It is “reasonable” if the method used by a business to transmit the warning is reasonably calculated to make the warning message available to the individual before exposure (for a consumer product, before purchase). The existing regulations provide “safe harbor” guidance regarding types of warning methods and general warning language for various exposures that are deemed “clear and reasonable” under Proposition 65.

The new regulations provide more specific guidance on the content of these “safe harbor” warnings, and on the corresponding methods for providing such warnings. Notably, the new regulations require the warnings to provide more detailed information to the public, including: (a) a clear statement that a person “can be exposed” to a Listed Chemical (rather than just a statement that a product or area “contains” a Listed Chemical); (b) the names of one or more Listed Chemicals that are the subject of the warning; and (c) a link to a website maintained by the California Office of Environmental Health Hazard Assessment (“OEHHA”) containing supplemental information. The new regulations also establish safe harbor warning methods for internet and catalog sales, requiring that businesses provide the warning on the webpage or in the catalog, as well as on the product. The new regulations may also require businesses to provide the warning in both English and in one or more foreign languages. For example, for consumer product exposures, a business must provide the warning both in English and in any other language used on a product’s sign, label or shelf tag.

The new regulations also clarify the relative responsibilities for providing consumer product exposure warnings between product manufacturers, producers, packagers, importers, suppliers, distributors and retailers. The new regulations require a manufacturer, producer, packager, importer, supplier or distributor of a product that is subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet for the products at issue. The written notice must be renewed annually, or within 90 days when a different or additional Listed Chemical or endpoint (cancer or reproductive toxin) needs to be added to the warning.

The retailer, in turn, is responsible for the placement and maintenance of the warning materials, including warnings for products sold over the Internet, that the retailer receives from a manufacturer, producer, packager, importer, supplier or distributor of a product. Similarly, the retailer is responsible for providing the warning if: (1) the retailer is selling the product under its own (or an affiliate’s) brand or trademark; (2) the retailer itself is responsible for introducing a Listed Chemical into the product; or (3) the retailer has covered, obscured, or altered a warning label affixed to the product.

The new regulation becomes operative on August 30, 2018. In the interim, business can comply with the current regulations or the new regulations. Indeed, warnings on products manufactured before the operative date that comply with the current regulations are still considered clear and reasonable. Similarly, a business that is a party to a court-ordered settlement or final judgment establishing a warning method or content is still considered to be providing a “clear and reasonable” warning for purposes of the new regulation, if the warning complies with the order or judgment. Nonetheless, businesses may want to begin planning for the new regulations, particularly if they are contemplating introducing new products to the market, or are contemplating other changes to the labels on their existing products.

Jay W. Connolly is a partner in Seyfarth’s San Francisco office and Aaron Belzer is an associate in the firm’s Los Angeles office. They regularly represent and advise clients in Proposition 65 matters and developments. If you have any questions regarding this development or related issues please contact your Seyfarth Shaw LLP attorney, Jay Connolly at jconnolly@seyfarth.com, or Aaron Belzer at abelzer@seyfarth.com.

FAA Issues Supplemental Rulemaking on Safety Management Systems

Posted in FAA, OSHA Compliance

By Brent I. Clark and Craig B. Simonsen

Private jet plane in the blue skySeyfarth Synopsis: The FAA has gotten closer to a conceptual model for the safety management system requirements and standards that will be required for certified airports.

At the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week we attended a session on the Federal Aviation Administration’s recent Supplemental Notice of Proposed Rulemaking (SNPRM) on safety management systems  (SMS) for certificated airports. 81 Fed. Reg. 45872 (July 14, 2016) . The session was presented by William G. Thompson, the OSHA/SMS Manager at the Fort Lauderdale-Hollywood International Airport.

The SNRPM was an update for the original Advanced Notice of Rulemaking, published in October 2010. 75 Fed. Reg. 62008. In its news release on the SMS update, the FAA indicated that “SMS is a formal approach to managing an organization’s safety through four key components – safety policy, safety risk management, safety assurance, and safety promotion. Through the SNPRM, the FAA proposes to integrate proactive hazard identification and risk-management based principles into the day-to-day operations at airports.”

Thompson, in his review of the updates, said that the proposal would now regulate about half as many airports, dropping from 600 covered airports to about 300. In addition, the proposal would now allow more time to submit an implementation plan, going from 6 months to 12 months, and to plan implementation, going from 18 months to 24 months.

To view public comments on the SNPRM, go to:www.regulations.gov using docket no. FAA-2010-0997.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

OSHA Sued Over Employee Inspection Walk-Around Rights Interpretation

Posted in Investigations/Inspections, OSHA Compliance

By James L. Curtis and Craig B. Simonsen

Employee Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: Industry has sued to block OSHA’s efforts to give unions increased access to non-union worksites.

We had blogged previously about OSHA’s new standard interpretation guidance letter that would allow workers without a collective bargaining agreement to designate a union representative to act on their behalf as their “walk-around representative” during an OSHA inspection. We warned at that time that this interpretative guidance was essentially an invitation to allow union representatives access to employees at non-union facilities for the purpose of union organizing.

Last week the National Federation of Independent Business (NFIB) sued in Federal Court to challenge OSHA’s “illegal administrative expansion” of the “walk-around” right. The NFIB complaint notes that for over four decades OSHA construed the Act to “afford employees a limited right to accompany an OSHA compliance safety and health officer during a workplace inspection.” See 29 C.F.R. § 1903.8.

Under OSHA’s long-standing approach to this provision, an “employee representative” had to be an employee of the employer whose workplace was the subject of the inspection. In very limited cases OSHA might allow for third-party technical specialists to accompany the compliance officer when their presence would be “reasonably necessary.”  OSHA’s guidance letter blows this wide open by allowing a union to serve as the third-party technical specialist even when the union does not represent the employees.

NFIB indicates that OSHA longstanding construction of the Act’s walk-around right accurately captured a delicate legislative balance. “Congress concluded that employees should be allowed to participate in inspections meant to protect their health and safety. But Congress also recognized that this participatory right should not be used as a pretext to facilitate union access to proselytize employees of open-shop businesses….”

According to the Complaint, the NFIB alleges that the real purpose of the change was to facilitate union access to open-shop workplaces. The interpretation “effected these changes without giving the public prior notice or an opportunity to comment. The [interpretation] conflicts with Congress’s purpose behind the Act’s walk-around provision.” NFIM concludes that interpretation’s promulgation also violated the notice-and-comment requirements of the Administrative Procedure Act, 5 U.S.C. § 553(b)-(c).

We will keep you up-to-date as this case proceeds.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.