By James L. Curtis

iStock_000004162096LargeSeyfarth Synopsis: OSHA has announced that it will be proposing a delay to the July 1, 2017 deadline for certain employers to electronically file injury and illness data.

Under OSHA’s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA.  As we noted previously in our blog, the rule became effective in January, 2017 and required employers to electronically file the information by July 1, 2017.  However, for months the regulated community has been asking how it is expected to accomplish this electronic filing when OSHA has failed to set up a website capable of accepting the submissions.

OSHA has now posted a notice on its website acknowledging that “OSHA is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 form 300A electronically.”

It is unclear how long of a delay OSHA will seek and whether other modifications will be made that would impact the new anti-retaliation provisions.  We will keep readers posted.

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

By Mark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Woman holding hemp flowersSeyfarth Synopsis:  NIOSH has released a study on the safety and health hazards posed by marijuana growing farms.  Of concern for employers are the risks for musculoskeletal disorders, as well as dermal contact exposure to both THC and Botrytis cinerea, a plant pathogen. 

The National Institute for Occupational Safety and Health (NIOSH) has recently published the results of a potential hazards evaluation associated with the harvesting and processing of cannabis at a Washington state outdoor organic farm.  Health Hazard Evaluation Report, No. 2015-0111-3271 (April 2017).

The Report concludes that “if hand trimming tasks are performed for longer periods than we observed, the repetitive hand motions create a risk for hand and wrist musculoskeletal disorders.  Tetrahydrocannabinol (THC), the psychoactive component in cannabis, was detected on all surface wipe samples.  Botrytis cinerea, a plant pathogen that can cause allergic reactions in exposed individuals, was the predominant fungal species identified.”

NIOSH has provided the following methods for mitigating and managing the hazards:

  • Change hook line hanging heights to correspond with typical stem length and employee working technique.
  • Provide frequent breaks for employees when they are trimming cannabis by hand.
  • Develop a plan to rotate employees among jobs that use different muscle groups.
  • Train employees on tool cleaning, lubrication, sharpening, and maintenance.
  • Develop a cleaning schedule to remove tetrahydrocannabinol from work and tool surfaces.
  • Train employees to wear non-latex gloves when handling cannabis, cannabis products, or equipment that contacts cannabis.
  • Train employees to wash their skin with soap and water after removing gloves.

Employers in this industry can use these NIOSH recommendations to develop their own employee safety and training programs or to update their existing programs, as appropriate.  At a minimum, employers who have a written program in place may wish to make sure that they have covered all of the topics highlighted in these NIOSH this Report. Coordinating employer written materials with the NIOSH recommendations may improve employee safety and reduce the likelihood of workplace incidents.  Moreover, compliance with the NIOSH recommendations also may reduce the employer’s liability for an OSHA citation, should OSHA conduct an onsite inspection and find safety hazards unaddressed.

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

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

Employee Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: In a victory for employers, OSHA has rescinded its policy allowing union representatives to participate in OSHA inspections of non-union employers.

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

In September, 2016 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 focused on the fact 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.

OSHA responded to the suit by filing a motion to dismiss in which it raised a number of threshold arguments before attacking the substance of NFIB’s claims. On February 3, 2017, the federal court put a serious dent in OSHA’s continued reliance on the interpretation in a ruling signaling victory to the rising chorus of objections from the business community. The court flatly rejected OSHA’s threshold arguments and then sided with NFIB’s argument that the letter was a legislative rule subject to notice and comment rulemaking, not “interpretive guidance” as OSHA contended.  In reaching this conclusion, the court observed that the letter “flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee,” and, in turn, should have gone through the formal rulemaking process.

On April 25, 2017, OSHA withdrew this policy via a Rescission Memo.  It states that “given the express guidance in the statute and the applicable regulation, OSHA is withdrawing the February 21, 2013 letter to Mr. Sallman as unnecessary.  Likewise, the guidance in this memorandum supersedes OSHA Instruction CPL 02-00-160, Field Operations Manual (FOM) (8/2/2016), Chapter 3, Section VII.A, which will be revised accordingly.”

Following OSHA’s rescission, NFIB voluntarily dismissed its lawsuit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Brent I. Clark and Craig B. Simonsen

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

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

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

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

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

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

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

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

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

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

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

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

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

By Brent I. Clark and Craig B. Simonsen

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

The Upshot for Employers

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

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