Environmental and Safety Law Update

By Meagan Newman, Mark A. Lies II and Kerry Mohan

Citing recent reports of deaths of temporary employees, many of which have occurred on the first day of the job, OSHA issued a memorandum this week to its Regional Administrators outlining new measures to protect the health and safety of temporary employees.  The agency is making a concerted effort using enforcement, outreach and training to assure that temporary workers are protected from workplace hazards.

The April 29, 2013 memorandum instructs compliance officers to investigate temporary worker issues during their inspections and states that recent "inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others."  The memorandum also directs compliance officers to document the name of the temporary workers' staffing agency, the agency's location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).

The memorandum also announces the addition of a new OIS code for temporary workers which will enable OSHA to better track temporary worker issues and exposures.

Focus on temporary workers has been increasing in recent years and in one case a state legislature has taken matters in to its own hands.  In Massachusetts, House Bill 4304, “An Act Establishing a Temporary Workers Right to Know" was signed in to law last year (taking effect in January of this year). It requires temporary agencies to provide employees with specific start and end times and a detailed job description, including clothing, equipment, training, and license requirements. It must also specify any meal or transportation provisions and related costs to be charged to the employee.

All staffing agencies and employers utilizing temporary workers should take heed.  The attention of federal and state agencies and lawmakers is on this issue and employers should be taking steps to ensure that all employees, whether they are full time or temporary, are aware of and properly protected from workplace hazards. 

For more information and further recommendations, see this article.

By James L. Curtis and Craig B. Simonsen

OSHA is again reminding employers that it considers distracted driving a workplace hazard that employers are responsible to prevent.

Accordingly, employers should be aware that OSHA is looking carefully at distracted driving and will issue citations and penalties to employers who are out of compliance. To stay in compliance, employers should ensure that they have up-to-date policies in place to address distracted driving.

The National Highway Traffic Safety Administration defines “distracted driving” as any activity that could divert a person's attention away from the primary task of driving. Distractions include:

• Texting
• Using a cell phone or smartphone
• Eating and drinking
• Talking to passengers
• Grooming
• Reading, including maps
• Using a navigation system
• Watching a video
• Adjusting a radio, CD player, or MP3 player

However, because text messaging requires visual, manual, and cognitive attention from the driver, it is by far the most alarming distraction.

A government study of text messaging while driving found that sending or receiving a text takes a driver's eyes from the road for an average of 4.6 seconds, the equivalent at 55 mph of driving the length of an entire football field! “Driver Distraction in Commercial Vehicle Operations” (Federal Motor Carrier Safety Administration, Sep. 2009). Additionally, it found that headset cell phone use is not substantially safer than hand-held use.

Another study of text messaging while driving found that drivers who use hand-held devices are four times more likely to get into crashes serious enough to injure themselves. (“The Effects of Text Messaging on Young Driver Performance” (Monash University Accident Research Centre, Feb. 2006)). Even more stunning is that “drivers spent up to 400 percent more time with their eyes off the road when text messaging.”

Along with being an OSHA safety concern, many states have outlawed the use of cell phones and/or texting while driving. For reference the Insurance Institute for Highway Safety has compiled a helpful listing of cell phone and texting laws and provisions.  OSHA also has published this 50 state map of texting bans.

With the heightened federal initiatives and state laws and safety concerns relating to distracted driving, employers necessarily need to ensure that they have policies and procedures in place to prevent distracted driving, and to bring appropriate discipline where employees fail to follow the policies and procedures.

By Mark A. Lies II

Tuberculosis is once again raising its proverbial head -- now this disease may require employer responses under several state and federal laws!

According to the Centers for Disease Control, over one third of the world’s population (nearly 2 billion people) have tuberculosis!  New infections occur at the rate of one per second and approximately 2 million people die per year from the disease! Statistically, one in ten latent infections will progress to “active” TB disease which typically kills half of its victims if left untreated.  The disease is experiencing a resurgence because of a rise in HIV infection levels, drug abuse, and HIV/AIDS.  There has also been significant neglect of worldwide TB control programs.  As a result, according to the Centers for Disease Control, drug resistant strains of TB are emerging and spreading.

The dangers associated with this disease are noted in the March 1, 2013 article in the Wall Street Journal, “Dangerous TB Patient Detained on U.S. Border.” The article notes that this is “the first person to cross and be held in detention while infected with one of the most severe types of drug-resistant tuberculosis known today.”

Consider also the recent complaint filed against Pilgrim’s Pride Corporation, No. 13-CV-924 (N.D. Tex. Feb. 28, 2013). The plaintiffs are family members of employees that worked at the company, and are alleging that they were exposed to life-threatening communicable infection from their family members who were employees that were exposed to life-threatening communicable infection at their place of employment!

As an employer, unless you are directly involved in the healthcare industry, you will typically be ill-equipped to respond in any meaningful fashion to this health hazard.  Frequently you may also be unaware of what potential responses should include after receiving information from an employee, employee family member, or a third party that an employee may be infected or may have been exposed to an infected individual.  The following action items and potential liabilities must be considered by an employer:

Department of Public Health

Since TB constitutes a public health hazard, the employer should contact its local Department of Public Health (DPH), to obtain additional information.  The DPH will be a valuable resource for the employer including actually possibly visiting the workplace to conduct an investigation among the employees regarding potential exposure and providing employee TB screening if there has been a report of active TB carriers within the workplace.  Often the DPH will advise the employer of alternative courses of action which  must be considered and the employer must document its actions which may include requiring the infected employee to remain away from work to prevent further infection.

OSHA

OSHA has no regulation that specifically deals with the health hazards associated with TB outside of a healthcare setting.  While OSHA has become involved with TB in a healthcare setting where employees are reasonably expected to be exposed to patients who may be TB carriers, in a non-healthcare workplace it typically will refer the employer to the DPH.  There is no requirement under OSHA regulations to report a case of employee infection to the agency.  Likewise, there is no requirement to record an incident of an employee infection on the OSHA 300 Log unless there is a medical determination that the infection is “work related” (which typically would be limited to those workplaces where employees are routinely expected to treat patients or provide services to individuals who may have the disease).

Worker’s Compensation

Under workers’ compensation laws, the employer is legally responsible to provide benefits to an employee who sustains an injury or illness that “arises out of and in the course of employment.”  Since TB is not typically a hazard that “arises out of the employment,” the employer would in most cases not be responsible for worker’s compensation benefits if an employee contracts TB (again, unless the employer is involved in work activities where employee exposure to TB is reasonably expected within those activities).  In any event, medical evidence would be required to establish that the exposure occurred within the course of employment.

Family and Medical Leave Act

Under the FMLA, an employer which is subject to the Act and whose employees qualify for leave under the Act, may be required to provide an employee up to twelve (12) weeks of unpaid leave for the employee who has developed a “serious health condition” as a result of TB or to allow that employee, based upon a physician’s certification, leave to provide care and support to an immediate family member who has developed a “serious health condition” resulting from TB.  In that case, the employer must comply with the Act regarding appropriate notifications and documentation, particularly relating to return to work.  One area that is unclear is whether the employer can require an employee to utilize FMLA leave where the employee may have TB exposure and symptoms of infection and the employer is concerned about whether the employee should be kept away from the workplace while being evaluated to determine if the employee has active TB and could be infectious.

Americans with Disabilities Act

Under the ADA, a qualified employee with a “disability” constituting a significant impairment of a major life activity, cannot be discriminated against in his/her employment.  This protection includes an employee who currently has a disability, has a history of a disability or is perceived by the employer to have such a disability. 

In the context of TB, the employer can have several potential liabilities.  Initially, if the employee’s TB infection has resulted in a serious and chronic lung impairment (e.g., fibrosis, scarring, reduced pulmonary function) the employee may have a disability affecting the major life activity of breathing which could require the employer to accommodate the employee with leaves of absence for treatment, reasonable modifications to work activities because of the employee’s inability to perform certain work functions (e.g., certain exertions, use of respirators, exposure to certain substances).

In addition, the employer could be at legal risk if the employee were to claim that the employer refused to hire the employee or to provide other employment benefits to an existing employee because the employer was aware of the employee’s history of a TB related disability or a perception of a disability related to TB when no such disability in fact existed.

Recommendations

Unfortunately, it appears that another worldwide health hazard is making a resurgence and, like most such hazards, has already and will continue to impact the workplace.  It is recommended that the employer take the following steps to preplan for such a hazard.

• Obtain information on the disease from the local Department of Public Health, the Centers for Disease Control, or the employer’s local health provider so that the employer can determine whether there is a TB health risk in the community and/or within the particular racial or ethnic groups which may be within the workplace.
• Inform its employees that the employer is committed to providing a safe and healthy workplace (required under the OSHA Act) and that it wants to protect its employees against potential exposure to any disease whether or not work-related, including TB, within the workplace.
• Advise employees that they are required to report immediately to the employer any communicable diseases (including TB) so that the employer can institute appropriate action with public health authorities to control the spread of the disease within the workplace and ensure that an adequate medical response is occurring.
• Inform employees that all such medical information will be maintained confidentially and that no employee will be subjected to retaliation for reporting such information.
• Ensure that the employer documents its actions to respond to actual reported medical or other information involving TB, including recommendations from the DPH, medical providers and the affected employees as the situation is resolved.
• Follow the employer’s policies relating to documenting any requests for FMLA or other leaves which may be required to treat TB.
• Document any employee requests for an accommodation and the interactive process with the employee for any TB related “disability”.

If the employer becomes informed of the facts relating to TB and responds in a reasonable manner as outlined above, the employer will be able to properly respond to this health hazard to protect the health of its employees, as well as to limit its potential legal liability.

Seyfarth Shaw OSHA practice partner Meagan Newman was quoted recently in an IndustryWeek article discussing workplace violence.

"Every employer should be thinking about the potential for workplace violence and what steps they might take to prevent or address it." Newman cites to a case where a Texas convenience store in 2012 had a robbery that resulted in the death of a worker. The company/store owner was cited for violating OSHA's “general duty” clause.

The article offers some recommendations to create a safer workplace.

By James L. Curtis, Meagan Newman, and Craig B. Simonsen

The National Institute for Occupational Safety and Health has just issued a new recommended exposure limit (REL) for occupational exposure to hexavalent chromium compounds. The NIOSH Criteria for a Recommended Standard: Occupational Exposure to Hexavalent Chromium, Publication Number 2013-128 (January 2013), sets a significantly lower recommended exposure limit, that the Agency admits many industries will not be able to achieve.

The criteria document is derived from a NIOSH evaluation of critical health effects studies of occupational exposure to hexavalent chromium compounds. It provides recommendations for controlling workplace exposures including a revised recommended exposure limit derived “using current quantitative risk assessment methodology on human health effects data.”

NIOSH estimates that 558,000 U.S. workers are exposed to airborne hexavalent chromium compounds in the workplace. Impacted industries include electroplating, welding, and painting. In addition, over one million U.S. workers are estimated to have dermal exposure to hexavalent chromium compounds in cement, primarily in the construction industry.

Based on the results of the NIOSH quantitative risk assessment, NIOSH is now recommending that airborne exposure to all hexavalent chromium compounds be limited to a concentration of 0.2 μg/m3 for an 8-hr time-weighted average exposure, during a 40-hr work week. Note that NIOSH indicates that “some operations, including hard chromium electroplating, chromate-paint spray application, atomized-alloy spray-coating, and welding may have difficulty in consistently achieving exposures at or below the recommended exposure limit by means of engineering controls and work practices.” Also, “the extensive analysis of workplace exposures conducted for the OSHA rule-making process supports the NIOSH assessment that the REL is achievable in some workplaces but difficult to achieve in others.” 71 Fed. Reg. 10100 (February 28, 2006).

By James L. Curtis and Craig B. Simonsen

The National Institute for Occupational Safety and Health (NIOSH) is proposing to expand its ongoing evaluation of New Jersey legislation to prevent workplace violence in healthcare facilities. NIOSH is currently conducting a nurse survey at hospitals to examine the compliance and impact of the legislation. According to NIOSH the objective of the NIOSH study is: (1) to examine healthcare facility compliance with the New Jersey Violence Prevention in Health Care Facilities Act (Act), (2) to evaluate the effectiveness of the Act in reducing assault injuries to workers, and (3) to evaluate the assault injury rate. The long-term goal of the study is to reduce violence against healthcare workers.

NIOSH notes that “healthcare workers are nearly five times more likely to be victims of violence than workers in all industries combined. While healthcare workers are not at particularly high risk for job-related homicide, nearly sixty percent of all nonfatal assaults occurring in private industry are experienced in healthcare.”

This proposed revision of the NIOSH examination will add two new study groups: nursing homes, and home healthcare aides. NIOSH plans to conduct interviews with representatives of nursing homes who are in charge of overseeing the compliance efforts. The purpose of the interviews is to measure compliance with the state regulations. NIOSH will also conduct a home healthcare aide survey which will describe the workplace violence prevention training that home healthcare aides receive.

Based on preliminary research, NIOSH suggests that enactment of the regulations will improve the comprehensiveness of nursing home workplace violence prevention program policies, procedures and training. Also, that home healthcare aides receive at least eighty percent of the workplace violence prevention training components mandated in the New Jersey regulations. NIOSH concludes that the rates of assault injuries to nursing home workers will decrease following enactment of the regulations.

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

Holiday shopping is increasingly becoming associated with violence and hazards. At one large national chain store last year “crowds who came looking for holiday deals came face-to-face with riots, shootings, and pepper-spray attacks”.  CNN notes that “violence marred Black Friday shopping in at least seven states, including California, where police say a woman doused fellow shoppers with pepper spray in a bid to snag a discounted video game console.”

These incidents add to a previous incident where a worker was trampled to death while a mob of shoppers rushed through the doors of a big box store to take advantage of a Black Friday sales event. According to the Occupational Safety and Health Administration (OSHA) the store was not using the crowd management measures recommended in OSHA's fact sheet - Crowd Management Safety Guidelines for Retailers, which provides employers with recommended elements for crowd management plans.

OSHA’s Assistant Secretary David Michaels also sent a letter to the CEOs of fourteen major retail companies, saying that "crowd-related injuries during special retail sales and promotional events have increased during recent years." "Many of these incidents can be prevented by adopting a crowd management plan, and this [OSHA] fact sheet provides retail employers with guidelines for avoiding injuries during the holiday shopping season."

Michaels points out that under the federal law “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death. OSHA encourages employers to plan for crowd management several weeks, or even months, in advance of sales events that draw large crowds. We recommend that employers and retail store owners adopt a plan that includes, at a minimum, the elements outlined in the fact sheet.”

In addition, the recently released U.S. Bureau of Labor Statistics (BOL) preliminary findings of the 2011 Census of Fatal Occupational Injuries Summary, notes that retail fatalities were sufficiently prominent as to be quantified. OSHA uses this data when developing strategies for what industries to focus OSHA’s enforcement efforts.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings.

By James L. Curtis and Craig B. Simonsen

The U.S. Bureau of Labor Statistics (BOL) has just released preliminary findings in its 2011 Census of Fatal Occupational Injuries Summary. 

Key preliminary findings of the 2011 Census of Fatal Occupational Injuries data indicate that fatal work injuries in private truck transportation rose fourteen percent in 2011, the second consecutive year that counts have risen in that sector.  Also, fatal work injuries increased among non-Hispanic black or African-American workers and among Hispanic or Latino workers in 2011, and for workers all 20 to 24 years of age.  Fatal work injuries involving women increased slightly in 2011.

Transportation incidents accounted for more than two out of every five fatal work injuries in 2011. Of the 1,898 transportation-related incidents, about 57 percent were roadway incidents involving motorized land vehicles.

Fatal falls, slips, or trips amounted to fourteen percent of all fatal work injuries. Falls to a lower level accounted for 541 of those fatalities.  In 2011, the height of the fall was reported in 451 of the 541 fatal falls from higher level. Of those 451 cases, about one in four of the fatalities involved a fall of 10 feet or less. Another fourth occurred from a fall of over 30 feet.

A total of 472 workers were fatally injured after being struck by objects or equipment, including 219 workers who were struck by falling objects or equipment, and 192 who were struck by powered vehicles or mobile equipment not in normal operation.

As shown in the BLS chart, below, among service-providing industries in the private sector, fatal work injuries in transportation and warehousing accounted for 733 fatal work injuries in 2011, an increase of eleven percent over the final 2010 count and the highest count since 2008. The number of fatal injuries in truck transportation, the largest subsector within transportation and warehousing in terms of employment, increased by fourteen percent in 2011, led by a 16 percent increase in general freight trucking and a 12 percent increase in specialized freight trucking.

Among other transportation subsectors, fatal work injuries in air transportation were lower, but fatalities in water and rail transportation were higher in 2011. Fatal work injuries in the professional and business services sector were up 16 percent, led by an increase in fatalities in landscape services to 167 in 2011, up from 133 in 2010.

The Occupational Safety and Health Administration (OSHA) uses this data when developing strategies for what industries to focus OSHA’s enforcement efforts. Accordingly, industries with higher fatality rates can expect greater attention from the OSHA inspectors, and their state equivalents. Up-to-date company safety policies and vigilance in employee safety training may make the difference in keeping your workforce safe, and in fending off OSHA enforcement proceedings.

By Brent I. Clark and Craig B. Simonsen

The U.S. Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH) recently issued a hazard alert on hydraulic fracturing operations intended to protect workers from silica exposure. According to the OSHA press release the action was taken after consultation with stakeholders and that it also meets the Obama Administration's focus on ensuring that this important industry continues to be developed safely and responsibly.

The hazard alert follows a cooperative study by NIOSH with industry partners that identified “overexposure to silica as a health hazard” to workers conducting hydraulic fracturing operations.

“NIOSH worked in cooperation with oil and gas industry partners to sample the air at eleven sites in five states where hydraulic fracturing operations were taking place. NIOSH identified seven primary sources of silica dust exposure during fracturing operations and found that workers downwind of sand mover and blender operations, especially during hot loading, had the highest silica exposures.”

The hazard alert suggests a combination of engineering controls, work practices, personal protective equipment, and product substitution, along with worker training, to minimize worker exposure to silica. While a hazard alert does not amount to a regulatory requirement, employers should consider its findings and the feasibility of adopting the suggested measures at their work sites. At a minimum, employers involved in these activities should ensure that they are complying with their obligations regarding silica and other safety issues.

By Ilana R. Morady and Elizabeth Leifel Ash

OSHA has issued a more than 800-page Final Rule revising the Hazard Communication Standard, 29 C.F.R. 1910.1200.  The primary purpose of the revised rule is to improve employees’ understanding of health and physical hazards associated with chemical substances and to align requirements for communicating those standards with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals. 

The most significant changes in the Final Rule relate to labeling of hazardous chemicals and the development of Safety Data Sheets (SDS) (previously referred to as Material Safety Data Sheets or MSDS).  The Final Rule includes mandatory appendices related to labels on containers (Appendix C) and SDS (Appendix D), each of which contain very specific requirements that previously did not exist under Section 1910.1200.  Chemical manufacturers are required to label containers of hazardous chemicals with the following information:  1) product identifier, 2) signal word, 3) hazard statement(s), 4) pictogram(s), precautionary statement(s), and 5) name, address, and telephone number of the chemical manufacturer, importer, or other responsible party.  The current Hazard Communication Standard required only “appropriate hazard warnings.”  Under the Final Rule, Appendix C gives very specific instructions as to the required verbiage and pictograms depending on the classification of the chemical hazard(s).

Similarly, the Final Rule includes far more specific requirements for SDS than the current Hazard Communication Standard includes with respect for MSDS.  For example, the Final Rule requires information to be communicated on the SDS in a specific order, whereas the current Hazard Communication Standard specifies only the information that must be included on the MSDS without specifying an order or format.  Mandatory Appendix D provides additional detail as to the required format and information for SDS.

The Final Rule also contains revisions to other OSHA standards, including chemical-specific requirements such as those related to formaldehyde (1910.1048), asbestos (1910.1001, 1915.1001, and 1926.1101), benzene (1910.1028), hazardous waste operations and emergency response (1910.120, 1926.65), and process safety management (1910.119, 1926.64) to be consistent with the revised Hazard Communication Standard.

The Final Rule is expected to be published in the Federal Register on March 26, 2012.  The rule contains milestones that will require employers to be fully compliant with all of the new requirements by 2016.

By Mark A. Lies, II and Meagan Newman 

The 10th Circuit Court of Appeals recently issued a decision that effectively and measurably lowers OSHA's burden of proof to establish an OSHA violation to "what a reasonably prudent employer would do." Compass Environmental, Inc. v. Occupational Safety and Health Commission; Department of Labor, No. 10-9541 (Dec. 19, 2011). The decision is contrary to the Review Commission's long-standing four-part Atlantic Battery test and establishes no measurable criteria for an employer to use to determine what is required and whether the employer is compliant. An analysis of the decision is available here.

By Meagan Newman

Salon owners may not be thinking about OSHA Hazard Communication training for their employees--and this would be a mistake. In recent months OSHA has issued a number of citations to beauty salons and manufacturers of hair straightening products containing formaldehyde alleging violations of the hazard communication standard. In a December 8, 2011 press release urging employers to better protect employees from the hazards of formaldehyde exposure, the agency states that it is continuing to respond to a number of complaints and referrals concerning exposure in salons, beauty schools and manufacturers. According to the release formaldehyde is an irritant, can cause an allergic reaction and poses a cancer risk.

"The best way to control exposure to formaldehyde is to use products that do not contain formaldehyde. Salons should check the label or product information to make sure it does not list formaldehyde, formalin, methylene glycol or any of the other names for formaldehyde," said Dr. Michaels, Asst. Secretary of Labor for OSHA. "If salon owners decide to use products that contain or release formaldehyde, then they must follow a number of protective practices-including air monitoring, worker training and, if levels are over OSHA limits, good ventilation or respirators."

By Meagan Newman

In response to increased injury and illness rates for health care support workers, OSHA announced yesterday that a National Emphasis Program on Nursing Home and Residential Care Facilities will be launched in the coming months.  The data released yesterday by the Bureau of Labor Statistics shows that the incidence rate for health care support workers is almost 2 1/2 times the rate for all private and public sector workers.  Assistant Secretary David Michaels stated, "It is unacceptable that the workers who have dedicated their lives to caring for our loved ones when they are sick are the very same workers who face the highest risk of work-related injury and illness."

The Emphasis Program will increase inspections on these facilities and focus on ergonomic hazards, bloodborne pathogens, workplace violence and slips, trips and falls.  The announcement comes on the heels of OSHA's new compliance directive that addresses workplace violence in health care and late-night retail establishments.  Health care employers should also familiarize themselves with OSHA's 2004 guidance on preventing workplace violence in health care and social service settings.

By Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has just published a "comprehensive step-by-step guide" intended for both employers and employees to help understand the OSHA's respiratory protection standard (standard). The Small Entity Compliance Guide for the Respiratory Protection Standard is 124 pages of explanation including a sample program, checklists, and FAQs.

OSHA notes in the introduction to this guide that it is "advisory in nature, informational in content, and is intended to assist employers by using plain English to explain each provision of the standard, whenever possible. However, technical terms that apply to respiratory protection have legal definitions, as set forth in the Respiratory Protection standard. In this guide, whenever these terms are used, they are used only as they are legally defined."

OSHA indicates that the recently updated standard now provides the regulated community with:

• A complete set of definitions that will eliminate confusion about terminology and how these terms apply to respirators and their use;
• Criteria for selecting respirators;
• Revised Assigned Protection Factors (APFs); and
• Updated Maximum Use Concentrations (MUCs)

According to OSHA the revised APFs standards clarify when employers may safely place employees in respirators that impose less stress on the cardiovascular system (e.g., filtering facepiece respirators). It indicates that many of these alternative respirators may have the additional benefit of being less expensive to purchase and operate.

OSHA concludes by pointing out that small employers may reach out at no cost to the OSHA Consultation Service that will provide assistance to help them identify and correct hazards, and to improve their injury and illness prevention programs.

By Mark A. Lies II and Elizabeth Leifel Ash

Under the Obama Administration, many federal agencies, including the Occupational Safety and Health Administration (OSHA) and the U.S. Environmental Protection Agency (EPA) have redoubled their efforts to enforce existing laws and regulations.  OSHA and EPA, in particular, have seen significant increases in their inspection and enforcement budgets, including the hiring of more inspectors and a call for more inspections.  Accordingly, it is more important than ever for companies regulated by these agencies to identify potential compliance gaps and take corrective action before the agency conducts an inspection.

Conducting a compliance audit is one way businesses can get ahead of the curve in terms of their environmental and workplace safety compliance.  Before such an audit is conducted, however, it is important for the company to take measures to protect the eventual audit report from disclosure to a government agency or private litigant pursuant to subpoena or discovery request.  This article outlines legal privileges potentially available for environmental and workplace safety audit reports and recommends actions companies can take to avail themselves of those privileges.

AVAILABLE LEGAL PRIVILEGES

A.        Attorney-Client Communications

Perhaps the best-known legal privilege that can apply to compliance audit reports is the protection for attorney-client communications.  In order to establish this privilege, three factors must apply:  1) there must be an attorney-client relationship; 2) the communication must be for the purpose of seeking or obtaining legal advice; and 3) there must be an expectation that the communication be kept confidential.  In some cases, the attorney-client privilege can extend to a document prepared by a third party where the client provides information to the third party retained by the attorney for the primary purpose of obtaining legal advice from the attorney.  See, e.g., U.S. v. Bornstein, 977 F.2d 112, 117 (4th Cir. 1992).

Recently, the Occupational Safety and Health Commission (Review Commission) held that a workplace safety audit report that was prepared by a third party retained by the attorney who needs the services of the third party to translate technical or complex information provided to the third party by the client in order to have effective legal consultation on the information between the client and the attorney and the third party prepares the documents for that purpose may be protected as an attorney-client communication.  In Sec’y of Labor v. Delek Refining Ltd., 23 O.S.H. Cas. (BNA) 1567 (O.S.H.R.C. July 11, 2011) (Delek), the Review Commission overturned the Administrative Law Judge’s decision that a draft process safety management compliance audit report prepared by a third-party consultant was not privileged.  In response to OSHA’s request for subpoena for the draft audit report, the employer argued that the draft report was an attorney-client communication and was, therefore, not subject to disclosure to OSHA.  The Judge rejected this argument, finding that the employer had undertaken the audit in order to comply with OSHA’s Process Safety Management Standard, which specifically requires such an audit, and therefore the report was not privileged.

The Review Commission remanded the case back to the Judge with instructions to evaluate the audit report in order to determine whether the attorney-client privilege applied.  Specifically, the Review Commission found that the employer had shown that the audit was not undertaken to comply with the Process Safety Management standard’s audit requirement but rather was prepared to assist the employer’s attorneys with technical issues associated with compliance with the Process Safety Management Standard.  The Review Commission held, therefore, that the audit report was potentially protected by the attorney-client privilege, and additional evaluation is necessary before determining whether the employer was required to turn over the report to OSHA.  The Judge’s decision after remand still is pending.

B.        Attorney Work Product

Under the Federal Rules of Civil Procedure, all documents and information that is reasonably calculated to lead to the discovery of admissible information are discoverable, which could include internal audits that may have uncovered potentially damning information. Rule 26(b)(3), however, implicitly recognizes that materials prepared by or at the direction of a party’s representative (i.e., legal counsel) in anticipation of litigation are generally protected from discovery.

This evidentiary privilege is sometimes referred to as the “attorney work product doctrine,” but the protection is not limited to those materials prepared directly by an attorney.  Rather, the privilege extends to materials prepared by any person at the direction of an attorney, as long as the materials are prepared “in anticipation of litigation.”

The Review Commission recognizes the work product privilege in contested OSHA proceedings.  See Sec. of Labor v. Bally’s Park Place Hotel & Casino, 15 O.S.H. Cas. (BNA) 1337 (Rev. Comm’n Nov. 7, 1991), aff’d Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252 (3rd Cir. 1993).  In Bally’s Park Place, the employer refused to give its employees’ union a report containing emissions testing results for a piece of machinery that caused employee complaints.  The employer argued that the company’s General Counsel requested the testing after receiving a letter from OSHA containing complaints about the machine.  The employer argued that it had anticipated litigation potentially arising out of OSHA’s complaint letter, and the report was developed to allow the attorney the ability to advise the employer on its potential liabilities.

OSHA issued Bally’s Park Place a willful citation under 29 C.F.R. § 1910.1020 for failing to release exposure records to the union.  The Review Commission vacated the citations, holding that the report qualified for protection from disclosure because it had been prepared in anticipation of litigation at the direction of the employer’s attorney.  On appeal, the Third Circuit agreed.

The Review Commission has also held that the work product protection can apply to investigative reports prepared after an incident such as an explosion or a fatal accident.  In Sec. of Labor v. Continental Oil Co., the Review Commission held that the employer was not required to give OSHA reports prepared by the company’s expert consultants hired by the company’s attorneys to investigate a refinery explosion.  9 O.S.H. Cas. (BNA) 1737 (Rev. Comm’n Apr. 27, 1981).  The Review Commission found that the employer’s attorneys hired a team of experts to investigate the cause of the explosion and to report their findings directly to the company’s attorneys.  In addition, the Review Commission held that the reports were prepared “in anticipation of litigation” even though no litigation had been initiated, recognizing that materials need not be prepared for any specific litigation, but only “with an eye toward litigation” to be protected from discovery.

C.        Environmental Audit Privilege

The EPA (as well as many States) has a policy, entitled “Incentives for Self-Policing:  Discovery, Disclosure, Correction, and Prevention of Violations” (Audit Policy), to encourage regulated entities to voluntarily conduct environmental compliance audits and to disclose incidents of non-compliance to the EPA (or the relevant State environmental authority).  One piece of the Audit Policy is the elimination of gravity-based penalties where the company meets certain criteria. (Notably, OSHA provides no incentive for employers to voluntarily self-disclose incidents of non-compliance.)  For example, where the non-compliance is discovered through a routine environmental audit or compliance management system, the company discloses the non-compliance within 21 calendar days after discovery, then EPA may eliminate the entire gravity-based penalty.  The Audit Policy also allows up to a 75% offset in gravity-based penalties for self-disclosure, even where the non-compliance was not discovered during a routine environmental audit or compliance management system, as long as the non-compliance is discovered independently of a government investigation or private litigation.  In addition, the EPA applies the Audit Policy to new owners who discover incidents of environmental non-compliance in recently acquired facilities.  Such non-compliance must generally be disclosed within 45 days following closing to qualify for the penalty offsets.

The second key feature of the Audit Policy is an evidentiary privilege for audit reports generated in connection with environmental compliance audits.  Under the Audit Policy, EPA will not request environmental compliance audit reports during a routine investigation.  Individual states, such as Illinois, Ohio, Michigan, Texas, and Colorado, have enacted statutes that expressly provide an evidentiary privilege for environmental audit reports.

RECOMMENDATIONS

The foregoing cases illustrate how critical it is for employers to have procedures in place to ensure that sensitive documents and materials (such as post-accident investigation reports and internal self-audits or analyses) are protected from disclosure to OSHA and/or EPA so the reports cannot become “smoking gun” documents containing potential admissions of liability to support issuance of citations, including willful citations and high-gravity civil penalties and negative visibility for the employer.

It is recommended that employers establish procedures to create and preserve evidentiary privileges as follows:

• Ensure that Company personnel at all locations are trained and required to contact in-house or outside counsel as soon as a serious accident or environmental release occurs at the worksite or when an OSHA or EPA inspector arrives at the location.  The attorney should be involved throughout the inspection, including participating in interviews of management personnel and opening/closing conferences.  If the attorney cannot participate in any part of the inspection, the attorney should designate a management representative to act on the attorney’s behalf by taking notes, photographs, or otherwise documenting the progress of the inspection.
• The attorney should be engaged to direct any post-incident or other audit or investigation, including any “root cause” investigation or report, as well as the decision to retain an independent expert consultant.  The attorney must be kept apprised of important developments by copying the attorney on email and other correspondence.
• Ensure that memoranda, emails, letters, or other communications that contain legal advice are not distributed beyond company representatives involved in critical decision-making who are considered to be in the employer’s “control group” by reason of their decision making authority, which may result in a waiver of a claim of attorney-client confidentiality.
• Involve the attorney to develop a strategy for promptly disclosing instances of environmental non-compliance to ensure that all applicable criteria for invoking the Audit Policy or applicable state audit privilege law are met.

By Mark A. Lies II and Elizabeth Leifel Ash

In July 2010, OSHA began an inspection of Haasbach, LLC following the death of two teenage workers at a Mt. Carroll, Illinois grain elevator.  The employees became entrapped in corn more than 30 feet deep in the elevator and suffocated.  During the OSHA investigation, OSHA issued a document subpoena to Haasbach’s workers’ compensation insurer, Grinnell Mutual Reinsurance Co., seeking inspection reports and other documents related to Haasbach.  Grinnell objected to the subpoena, arguing in part that loss control inspection reports created by an insurer are privileged documents that may end up in the hands of plaintiffs’ lawyers or other outside parties if turned over to OSHA. 

On May 2, 2011, the U.S. District Court for the Northern District of Illinois rejected Grinnell’s arguments and upheld OSHA’s subpoena, requiring Grinnell to provide the requested documents.  Solis v. Grinnell Mut. Reins. Co., No. 11 C 50014, 2011 WL 1642534 (N.D. Ill. May 2, 2011).  This article discusses the potential effects of this decision on insurers and the documents prepared in the course of the insurer/insured relationship.

THE RELATIONSHIP BETWEEN WORKERS’ COMPENSATION AND OSHA

            Generally speaking, workers’ compensation systems are creations of state law and are entirely separate from occupational safety and health standards.  In some situations, however, the two systems overlap.  For example, some states require workers’ compensation insurers to provide consultation services to insureds whose employee injury rate (also referred to as an experience modification rate) exceeds a certain level.  These consultations are designed to assist employers in improving their workplace health and safety programs with an eye toward reducing employee injuries.  Often, workers’ compensation insurers will provide these consultations even where not required by state law.

            Thus, in some cases, workers’ compensation insurers’ loss control efforts align with OSHA’s overall goal of improving employee safety.  However, the insurer has a fiduciary duty to act in the best interest of its insured.  While these interests may align, conceptually, the insurer is in a tight spot when OSHA begins investigating an insured.  Loss control reports from insurers, for example, may be used by OSHA to prove that the insured had prior knowledge of a particular condition or practice that OSHA believes is violative of one of its regulations.  In that case, the insurer’s report is used against the insured, to whom the insurer owes a fiduciary obligation.  The blurring of these interests creates concern over OSHA’s ability to access and use insurers’ reports during the course of an investigation. 

OSHA’S SUBPOENA POWER

            Under the Occupational Safety and Health Act, 29 U.S.C. § 657(b), OSHA is empowered “to require the attendance and testimony of witnesses and the production of evidence under oath.”  Where the recipient of a subpoena under Section 657(b) objects to the subpoena, the federal courts are authorized to order the subpoena recipient to comply.  In the Grinnell case, OSHA issued a subpoena to the employer’s workers’ compensation insurer to obtain site safety inspections, applications for insurance coverage, and correspondence with the insured.  Over Grinnell’s objection, the court held that the subpoena was proper in that all of the requested documents “reasonably relate to the investigation of the incident and the question of OSHA jurisdiction.” 

            The court also rejected Grinnell’s arguments that the reports were privileged and would result in “chilling effect” on employers’ willingness to allow their insurers to conduct safety inspections to determine the risk of loss.  The court avoided resolving the “chilling effect” argument by calling it a policy decision “to be made somewhere other than in the federal courts.”  The court also held that insurers’ reports are not necessarily privileged.  The court acknowledged, however, that such reports may be privileged if they are conducted at the direction of an attorney. 

RECOMMENDATIONS

            The Grinnell decision has the potential to drive a wedge between workers’ compensation insurers and their insureds when it comes to loss control activities.  Therefore, it is recommended that insureds who consent to safety inspections by their insurers take the following steps to ensure that those inspections do not create liability under the OSHA Act:

• Unless compelled by state law, authorize an insurer’s inspection only after consulting with legal counsel;
• Request an opportunity to review a draft report from the insurer and review the draft carefully to identify potential factual errors or editorializing;
• Ensure that any report issued by the insurer is addressed to the insured’s legal counsel and that the report is marked as Privileged and Confidential.  The report should not be distributed beyond the insured’s decision-makers with regard to employee health and safety;
• If the report identifies hazards to employees or areas of non-compliance with occupational safety and health regulations, correct the condition immediately, and document all efforts to correct the conditions or respond to the insurer’s recommendations.  Taking corrective measures is not an admission that the condition violated any statute or regulation, but will help avoid “high-gravity” OSHA citations;
• Ask your insurer to notify you, before responding, of any subpoena received by OSHA or other third party, and ask for a copy of any documents provided. 

By Craig B. Simonsen

The Occupational Safety and Health Administration is holding two stakeholders hearings on the occupational exposure to infectious diseases.  OSHA is considering what action, if any, the Agency should take to limit the spread of occupationally-acquired infectious diseases.

The hearings, scheduled for July 29, 2011, are to explore the possible development of a proposed rule to protect workers from occupational exposure to infectious agents either where the workers provide direct patient care, or where the workers perform tasks other than direct patient care that also have occupational exposure. These other work tasks include: providing patient support services such as housekeeping and facility maintenance; handling, transporting, receiving, or processing infectious items or wastes; conducting autopsies or performing mortuary services; and performing tasks in laboratories.

The stakeholder meeting discussions will center around several major issues:

• Whether and to what extent an OSHA standard on occupational exposure to infectious diseases should apply in settings where the workers provide direct patient care, or where the workers perform tasks other than direct patient care that also have occupational exposure

• Whether and to what extent there are any other settings where an OSHA standard should apply.

• The advantages and disadvantages of using a program standard to limit occupational exposure to infectious diseases, and the advantages and disadvantages of taking other approaches to organizing a prospective standard.

• Whether and to what extent an OSHA standard should require each employer to develop a written worker infection control plan (WICP) that documents how the employer will implement the infection control measures it will use to protect the workers in its facility.

• Whether and to what extent standard operating procedures (SOP) development should be based upon consideration of applicable regulations/guidance issued by the Centers for Disease Control and Prevention, the National Institutes of Health, and other authoritative agencies/organizations.

• Whether and to what extent an OSHA standard should require each employer to implement its WICP through a section addressing methods of compliance.

• Whether and to what extent an OSHA standard should require each employer to make available routine medical screening and surveillance, vaccinations to prevent infection, and post-exposure evaluation and follow-up to all workers who have been exposed to a suspected or confirmed source of an infectious agent without the benefit of appropriate infection control measures.

• Whether and to what extent an OSHA standard should contain signage, labeling, and worker training requirements to ensure the effectiveness of infection control measures.

• Whether and to what extent an OSHA standard should require the employer to establish and maintain medical records, exposure incident records, and records of reviews of its worker infection control program, and whether and to what extent an OSHA standard should contain other recordkeeping requirements.

• The economic impacts of a prospective standard.

• Whether and to what extent OSHA should take alternative approaches to rulemaking to improve adherence to current infection control guidelines issued by the Centers for Disease Control and Prevention, the National Institutes of Health, and other authoritative agencies/organizations.

Approximately 30 participants will be accommodated in each meeting, and three hours will be allotted for each meeting. Members of the general public may observe, but not participate in, the meetings as space permits.  To participate in one of the July 29, 2011, stakeholder meetings, or be a nonparticipating observer, you must submit a notice of intent electronically, by facsimile, or by hard copy.

By Meagan Newman

OSHA recently announced that it will hold a forum to explore methods for preventing combustible dust explosions and gather expert views on possible regulatory options for addressing combustible dust hazards. Combustible dusts include fine particles, fibers, chips, chunks or flakes that, under certain conditions, can cause a fire or explosion when suspended in air. Types of dusts include metal wood, plastic, rubber, coal, flour, sugar and paper, among others. Representatives from industry, academia, research groups, insurance-underwriter organizations, labor, and government will participate in the discussion.

This forum follows OSHA's efforts to address combustible dust hazards in its 2007 National Emphasis Program, which focused inspection efforts on facilities that create or handle combustible dusts. According to OSHA, "results from these inspections indicated that facilities had unusually high numbers of general duty clause violations, indicating a strong need for a combustible dust standard." In October 2009, OSHA published an Advance Notice of Proposed Rulemaking calling for comments to help the agency develop a combustible dust standard. The agency received over 100 comments from interested parties.

There is also momentum on this issue in Congress. In February of this year Rep. George Miller (D-CA) introduced the Worker Protection Against Combustible Dust Explosions and Fires Act (H.R. 522). If passed, this legislation would require the Secretary of Labor to issue an interim occupational safety and health standard addressing worker exposure to combustible dust within one year and a proposed rule within 18 months.

The OSHA Combustible Dust Expert Forum will be held on May 13, 2011 at the Department of Labor in Washington, D.C. According to OSHA's press release, space is limited for non-participating observers. To register, individuals are directed to contact Bill Hamilton at 202-693-2077 by May 6, 2011. OSHA plans to make a summary of the meeting available on its website.