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.

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

Seyfarth Synopsis: Employers that are regulated under any of the 22 federal whistleblower protection laws are encouraged to review company policies, procedures, and training systems to examine conformity with this guidance.

The Occupational Safety and Health Administration has just issued its Recommended Practices for Anti-Retaliation Programs to help guide employers in creating “workplaces in which workers feel comfortable voicing their concerns without fear of retaliation.” The recommendations will apply to all public and private sector employers covered under the 22 whistleblower protection laws that OSHA enforces.

The Recommended Practices outline five elements that OSHA believes make up an effective anti-retaliation program, including:

  1. Management leadership, commitment, and accountability.
  2. System for listening to and resolving employees’ safety and compliance concerns.
  3. System for receiving and responding to reports of retaliation.
  4. Anti-retaliation training for employees and managers.
  5. Program oversight.

OSHA’s twelve page Recommended Practices provide some discussion on each of these “key elements.” Jordan Barab, OSHA acting Director, said that “these recommended practices will provide companies with the tools to create a robust anti-retaliation program.”

OSHA had published an initial draft of the Recommended Practices for review and comment in the November 2015. Differences from the proposal may be reviewed in OSHA’s Response to Public Comments.

Employers that are regulated under any of the 22 federal whistleblower protection laws are encouraged to review closely company policies, procedures, and training systems to examine conformity with this guidance. We note that their Recommended Practices tie into OSHA’s Amended Injury and Illness Standards form 2016. We expect OSHA inspectors to begin including these issues in their inspections.

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.

By Benjamin D. Briggs, Brent I. Clark, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Business organizations have once again brought suit against OSHA’s new electronic reporting and retaliation rule, arguing that the proposed online database violates employers’ First and Fifth Amendment rights and oversteps OSHA’s authority.

The National Association of Home Builders of the United States, the U.S. Chamber of Commerce, and other industry groups have sued Occupational Safety and Health Administration to prevent the implementation of its OSHA’s 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).

With regard to the new injury and illness reporting requirements, the industry groups’ Complaint alleges that OSHA “lacks statutory authority to create an online database meant for the public dissemination of employers’ injury and illness records.” In the Preamble to the Final Rule, OSHA premised its authority to issue the Rule on Sections 8 and 24 of the OSH Act. But neither of those sections authorizes OSHA to publicly disseminate reports collected under the Rule. The Plaintiffs contend that the Rule is arbitrary and capricious because OSHA has “changed its position on the confidentiality of the information it is demanding companies produce, without providing a reasoned explanation for that change.”  Moreover, Plaintiffs contend that the new Rule violates the employers’ First and Fifth Amendments rights by compelling them to submit confidential and proprietary information for publication on a publicly available online database.

The Complaint also takes aim at the new rule’s anti-discrimination and anti-retaliation provision. To that end, the Complaint alleges that because the Final Rule created a new scheme to prohibit discrimination and retaliation against employees, OSHA exceeded its statutory authority.  Specifically, the Agency “contravene[d] the express and sole statutory scheme established by Congress in Section 11(c) of the OSH Act to provide redress for retaliatory actions by employers against employees.”

We had previously blogged about the substance of OSHA’s new rule as it applies to drug-testing, retaliation claims, and accident reporting. In immediate response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). Despite the pending lawsuit, OSHA has issued an interpretative guidance on the new rule, and the rule went into effect as planned on December 1, 2016.

The TEXO ABC Court’s decision denied the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm. Slip Op. 7.  The TEXO ABC preliminary injunction denial, though, was not on the merits of the case. However, it is unclear whether the TEXO ABC Plaintiffs will continue to pursue that litigation given the Court’s denial of the preliminary injunction.

While it remains to be seen how these challenges will fare, the business community has shown a willingness to strongly oppose the new rule — a rule that has been widely criticized as emblematic of regulatory overreach.

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.

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

iStock_000025685589_HiResSeyfarth Synopsis: OSHA Publishes RFI on Proposed Rule Concerning Workplace Violence in Healthcare and Social Assistance Industries.

Federal OSHA currently enforces workplace violence under the General Duty Clause, under which OSHA requires employers to take affirmative steps to protect their employees.  In a not-so-surprising action, OSHA is considering whether to commence rulemaking proceedings on a new standard for preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients and clients. Prevention of Workplace Violence in Healthcare and Social Assistance, 81 Fed. Reg. 88147 (December 7, 2016).

Workplace violence affects numerous healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected by the proposed rulemaking include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel, and emergency medical care personnel.

According to OSHA, workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. In 2014 data from the Bureau of Labor Statistics’ (BLS) Survey of Occupational Injuries and Illnesses (SOII), workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall. Individual portions of the healthcare sector have much higher rates. Psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients.

As we noted above, this action is consistent with OSHA’s past initiatives in this sector. For instance, in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers,” in December 2015 we noted that “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting,” in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA,” and in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers.” Also, this action follows on “CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders.”

Comments on the RFI for OSHA Docket No. OSHA–2016–0014 are due on April 6, 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 or the Workplace Counseling & Solutions Team.

By Benjamin D. Briggs, Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Smart technology setSeyfarth Synopsis: Keep your holidays happy and safe. At this time of year, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace environment for employees and customers and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn bring liability onto the employer.

The holidays are a time to redouble your focus on workplace safety. At this time of year, people can be distracted or tired and may be teaming with people they do not ordinarily work with due to others taking time off. Working with someone new, especially at high risk jobs, may be a recipe for disaster. It is important to ensure all employees are properly trained and qualified for the tasks they are being asked to perform, especially if a task is not within their normal job activities.

In addition, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace for employees, customers, and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn, bring liability onto the employer. The holidays are a good time to remind employees of drug and alcohol policies and to be on the lookout for violations of those policies. See Eleventh Circuit Says “NO” to Drunk Driving, and President Declares “National Impaired Driving Prevention Month”.

The holidays are also a time when your employees may be at risk for workplace violence, both from within the company and from third parties. Many employees will be excited about the time spent with friends and family, but many others may not have those opportunities. Be aware of the signs of a distressed and potentially violent employee. See for instance, Wave of Shootings Puts Workplace Violence Back in the Spotlight, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers. We have also blogged about workplace safety risks from shoppers and third-parties. See Holiday Shopping and Crowd Management Safety Guidelines for Retailers,

In addition be on the lookout for other holiday workplace liability issues, especially at company holiday parties. For instance, in Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties, we suggested that employers consider these tips to minimize your organization’s exposure to legal liability and, more importantly, prevent an undesirable incident from occurring at your office holiday party:

  • Prior to the party, circulate a memo to reiterate your company’s policy against sexual and other forms of harassment. Remind employees in the memo that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Ensure your dress code prohibits any form of revealing or provocative attire, and remind employees that the policy applies at company-sponsored events.
  • If appropriate, allow employees to invite a spouse or their children to the party. Many employees might think twice about their actions if spouses and/or children are present.
  • Consider limiting the number of alcoholic drinks or the time during which alcohol will be served. In either case, stop serving alcohol well before the party ends.
  • Serve food at the party so employees are not consuming alcohol on an empty stomach and make sure there are plenty of non-alcoholic alternatives available.
  • Host the party at a restaurant or hire a caterer. Remind bartenders that they are not permitted to serve anyone who appears to be impaired or intoxicated and to notify a particular company representative if anyone appears to be impaired.
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home. If an employee appears to be heavily intoxicated, have a manager drive the employee home or ride with the employee in a cab to ensure he/she gets home safely.
  • Check your insurance policies to ensure they cover the company adequately, including any accidents or injuries that arise out of a company party or event.
  • Promptly investigate any complaints that are made after the party, and take any necessary remedial action for conduct that violates company policy.

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 Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

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

Welder on a construction site.Seyfarth Synopsis: The Federal Railroad Administration’s new Safety Advisory seeks to cover activities that fall outside the scope of FRA safety regulations, but within the purview of the OSHA regulations.

The Federal Railroad Administration (FRA) has just issued its Safety Advisory 2016–02 (November 28, 2016). The Advisory is, according to the Agency, “out of concern for the number of railroad and railroad contractor fatalities that occur when roadway workers perform certain activities that fall outside the scope of FRA’s safety regulations, but within the purview of the U.S. Occupational Safety and Health Administration’s (OSHA) regulations.”

We had previously blogged on the FRA’s amendments to its Federal Track Safety Standards.

This Safety Advisory indicates that it is a “reminder” for railroads and railroad contractors, and their employees (including roadway workers), of the importance of identifying hazardous conditions at job locations, conducting thorough job safety briefings to discuss the hazardous conditions, and taking appropriate actions to mitigate those conditions. The Advisory seeks to remind railroads, railroad contractors, and their respective employees that “OSHA’s job safety regulations may apply to certain roadway worker activities” and offers recommendations for hazard recognition strategies and challenge procedures that may improve roadway worker safety while roadway workers are engaged in activities subject to OSHA’s regulations. The FRA notes that the Advisory is responsive to the National Transportation Safety Board’s (NTSB) Recommendations R–14–33, R–14–35, and R–14–36.

The Advisory follows on the June 10, 2016, final rules addressing roadway worker safety. One of the rules amended the FRA’s Roadway Worker Protection (RWP) regulations (81 Fed. Reg. 37840, 49 CFR part 214, subpart C), while the second rule revised the FRA’s alcohol and drug regulations (81 Fed. Reg. 37894, 49 CFR part 219).

In research, the FRA had found that between January 1, 2000, and December 31, 2015, over 60 roadway worker fatalities occurred while the roadway workers performed work not covered by FRA’s safety regulations. In adopting this Advisory, it concluded that when railroad employees are engaged in activities outside the scope of the FRA’s safety regulations, “they may be required to comply with OSHA’s regulations, such as 29 CFR part 1910 (Occupational Safety and Health Standards) and 29 CFR 1926 (Safety and Health Regulations for Construction).” Specifically, railroads and railroad contractors may be required to implement policies and procedures mandated by OSHA relating to the working conditions for roadway workers.

Accordingly, the FRA Safety Advisory recommends railroads and railroad contractors:

  1. Develop hazard-recognition strategies identifying and addressing existing conditions posing actual or potential safety hazards, emphasizing the contributing factors or actions involved in roadway worker-related fatalities occurring since 2000;
  2. Provide annual training to roadway workers on the use of hazard recognition strategies developed by the railroad or the railroad contractor;
  3. Institute procedures for mandatory job safety briefings compliant with OSHA’s regulations prior to initiating any roadway worker activity. Consistent with OSHA’s regulations, roadway workers should use hazard-recognition procedures to identify potential hazards in their job briefings and then determine the appropriate measures to mitigate the identified hazards. If an unforeseen situation develops during work performance, roadway workers should stop working and conduct a second job briefing to determine the appropriate means of mitigating the new hazard; and
  4. Develop and apply Good Faith Challenge Procedures for all roadway workers who, in good faith, believe a task is unsafe or an identified hazard has not been mitigated.

In conclusion, the FRA encourages railroad and railroad contractor industry members to “take actions consistent with the preceding recommendations and any other actions that may help ensure the safety of roadway workers.”

Employers in these industry segments should consider whether these “recommendations” will be enforced as requirements, as it is likely that Agency inspectors may be looking for compliance with the Advisory, especially if an incident should occur.

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

By Benjamin D. Briggs, Brent I. Clark, James L. Curtis, Mark A. Lies, II, Patrick D. Joyce, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: The Federal District Court has denied industry’s request to enjoin OSHA’s new rules on mandatory post-accident drug screenings and safety incentive programs, workplace retaliation, and requiring employers to post OSHA logs electronically.

We had previously blogged about the Occupational Safety and Health Administration’s new rule on drug-testing, retaliation claims, and accident reporting. In response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016). Despite the pending lawsuit, OSHA previously issued an interpretative guidance on the new rule.

The Court just issued its decision denying the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm in the absence of a preliminary injunction. Slip Op. 7. “Moreover, the court agrees with Defendants that the Rule simply incorporates the existing prohibition on employer retaliation against employees for reporting work–related injuries and employer procedures that would discourage a reasonable employee from reporting an injury.”

The Court’s ruling is not on the merits of the case but rather, is limited to the request for a preliminary injunction. However, it is unclear whether the Plaintiffs will continue to pursue this litigation given the Court’s refusal to preliminarily enjoin the rule.

The new rule will take effect on December 1, 2016.

The Substance of the New Rule as Enacted

The new rules are complex. First, a new anti-discrimination and anti-retaliation rule will apply to all employers. This rule requires all employers to inform employees about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses. OSHA also interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting. Additionally, the new rule prohibits incentive programs that are solely based on providing employees with benefits for not having workplace injuries. OSHA’s belief is that such policies chill employees from reporting legitimate workplace injuries in order to receive the benefit. OSHA’s new rule also allows compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act.

The new rule also requires that large employers and employees in specific high hazard industries file their injury and illness information electronically with OSHA. OSHA intends to release this employer injury and illness information publicly on its website, believing that this will “shame” employers into improving workplace safety and health. OSHA believes that the electronic data submission requirement would also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials. The electronic filing portions of the rule begin to take effect in 2017.

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.

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

Warehouseman after accident at heightSeyfarth Synopsis: Despite Congressional direction to the contrary, OSHA just adopted a significant 500+ page final rule on industry, and only provided employers sixty days to comply!

Despite a Congressional “request” that agencies not move forward on new regulations during the transition to the Trump administration, the Occupational Safety and Health Administration recently issued a massive 513 page final rule revising and updating its general industry standards on walking-working surfaces, including ramps, ladders, gangways, roofs, and other surfaces.

While this rulemaking has been in the works since the 1990s, the original 293 page proposed rule was published in 2010. 75 Fed. Reg. 28861 (May 24, 2010). Now, without any further advance warning, OSHA has promulgated the final rule and provided only sixty days for compliance.

The final rule includes new and revised provisions addressing fixed ladders, rope descent systems, fall protection systems and criteria, and training. In addition, the final rule adds requirements on the design, performance, and use of personal fall protection systems.

In commenting on the new rule, outgoing OSHA Administrator Dr. David Michaels said that the “rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries.” “OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls.” Dr. Michaels indicated that the rule should also increase the “consistency between general and construction industries, which will help employers and workers that work in both industries.”

According to OSHA, the “rule’s most significant update is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level, prohibiting the use of body belts as part of a personal fall arrest system, and requiring worker training on personal fall protection systems and fall equipment.”

The new standard will affect 6.9 million establishments that employ 112 million employees. OSHA also found that the ladder training will apply to 5.2 million employees engaged in the construction, installation, maintenance, repair, and moving operations in general industry.

Excluded from the new rules are employees that fall outside of OSHA’s jurisdiction due to location or operational status, such as Department of Transportation (railroad and trucking) responsibilities, or those that are subject to unique industry specific fall protection standards, such as telecommunication and electric power generation, transmission, and distribution.

OSHA estimates that full compliance with this rule would prevent an estimated over 5,800 injuries and 29 fatalities per year.

Rule Timeline

The rule will be effective beginning January 17, 2017 — providing employers very little time to come into compliance! However, some of the provisions have delayed effective dates, including:

  • May 17, 2017 – train employees on fall and equipment hazards;
  • July 17, 2017 – ensure exposed workers are trained on fall hazards;
  • July 17, 2017 – ensure workers who use equipment covered by the final rule are trained;
  • November 20, 2017 – inspect and certify permanent anchorages for rope descent systems;
  • November 19, 2018 – install personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures;
  • November 19, 2018 – ensure existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system; and
  • November 18, 2036 – replace cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet.

For employers, adoption of this rule will represent a significant challenge.

OSHA’s rule was published with a Fact Sheet and a “Questions and Answers”.

Congressional Review

The new Rule could come under review by the Trump administration or be subject to the Congressional Review Act (CRA) (5 U.S.C. §§ 801-808), in which lawmakers have 60 legislative days to overturn a regulation from the current or, in this case, previous administration. If lawmakers are not in session for a full 60 days after enactment of the new rule before adjourning their final session, the clock resets, and the new Congress is given another 60 days to act on the new rule.

The only time the CRA was used occurred in 2001, when it was used to overturn an OSHA standard on ergonomics that had been implemented in the final days of the Clinton administration.

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.

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

Seyfarth Synopsis: With a dramatic change from a progressive democratic to a conservative republican administration we anticipate that OSHA is likely to pivot away from the enforcement heavy agenda to a more business friendly agency.

As we try to anticipate the President-Elect Donald Trump’s administration, supported by a Republican lead Congress, these are some of our thoughts and projections on what the future may hold for employers on the OSHA front.

Generally, we know from Candidate Trump claims that for the immediate future he may:

  • Propose a hiring freeze on all federal employees to reduce the federal workforce (except military, public safety and public health)
  • Propose a new requirement that for every federal regulation imposed, two existing regulations will be eliminated

While these claims are very broad in nature and offer no practical details on how they will be implemented, it sends a strong message of his goal of a more limited federal government and less federal government involvement in the workplace. Accordingly, these items may, to the extent that they are implemented, slow the frequency of planned inspections and the speed at which ongoing inspections and proposed citations are processed, and will likely halt (or dramatically slow) new regulations that may have been in the works. OSHA’s current pending and suggested rulemaking activities, such as its interpretation for narrowing the retail exemption under the Process Safety Management Standard, new permissible exposure limit (PEL) rules, and beryllium rules may all be re-considered and revamped in a new Republican administration.

Specifically, we know that David Michaels, PhD, MPH, Assistant Secretary of Labor for OSHA, will be leaving OSHA.  Michaels will likely be replaced by someone with a more pro-business perspective. However, we also know that the recently increased OSHA penalties are the law, therefore, will not likely be rolled back under the Trump administration.  We also believe that it is unlikely that the five year look back period for “repeat” violations will change.

As readers of our blog are aware, OSHA has recently proposed significant changes to the injury recordkeeping and anti-retaliation rules. Those changes are currently in litigation and OSHA has pushed back the effective date until December 1, 2016.  Given the change in administration, we would not be surprised if OSHA further delays implementation of these new rules.  If OSHA chooses to press forward with the new rules, they may be an early target for removal by the Trump administration.

We also believe that OSHA’s emphasis during the Obama administration on whistleblower and anti-retaliation claims will not be given the same focus under the Trump administration. Rather, we anticipate OSHA returning to more business friendly Voluntary Protection Program (VPP) and cooperative compliance programs over time.

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.

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

iStock_000011623330_MediumSeyfarth Synopsis: OSHA “strongly supports” EPA’s proposed updates to its existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act. The proposed changes seek to reconcile EPA requirements with OSHA and NIOSH requirements.

Dr. David Michaels, the Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration (OSHA), recently weighed in in favor of the U.S. Environmental Protection Agency’s (EPA) rulemaking concerning the Significant New Uses of Chemical Substances: Updates to the Hazard Communication Program and Regulatory Framework, Minor Amendments to Reporting Requirements for Premanufacture Notices. 81 Fed. Reg. 49598 (July 28, 2016).

We had blogged previously about the passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Chemical Safety Act). In signing the Bill on June 22, 2016, President Obama indicated that “The Frank R. Lautenberg Chemical Safety Act for the 21st Century will make it easier for the EPA to review chemicals already on the market, as well as the new chemicals our scientists and our businesses design.”

EPA’s regulations establishing workplace restrictions on the use of new chemicals had not previously considered existing OSHA controls. EPA subsequently proposed changes to its regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the OSHA Hazard Communications Standard (HCS), the OSHA Respiratory Protection Standard, and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. EPA’s proposed changes that reference OSHA regulations include: (1) a requirement that persons subject to significant new use rules (SNURs) use engineering and administrative controls to protect workers before resorting to use of personal protective equipment, similar to OSHA’s regulation at 29 C.F.R. § 1910.134(a)(1); (2) revisions to require a written hazard communication program that includes criteria for classifying chemical hazards in each workplace, similar to OSHA’s regulation at 29 C.F.R. § 1910.1200; and (3) a requirement that any safety data sheet developed to comply with OSHA or other requirements be submitted as part of the reporting requirements under the TSCA.

Assistant Secretary Michaels commented on the record in support of the EPA’s proposed revision to 40 C.F.R. § 721.63, Protection in the Workplace, to align with the OSHA’s Respiratory Protection Standard, at 29 C.F.R. § 1910.134(a)(1)). “OSHA supports a requirement for those subject to applicable significant new use rules (SNURs) to determine and use appropriate exposure controls per the hierarchy of controls to ensure worker protection.” With regard to the respiratory protection requirements in 40 C.F.R. § 721.63, Assistant Secretary Michaels commented that “most manufacturers and processors are already subject to and complying with the most updated NIOSH regulation for testing and certifying respirators. This proposed change also achieves compliance with 29 C.F.R. § 1910.34(d)(1)(ii), OSHA’s requirement that employers select NIOSH-certified respirators for the protection of workers should respirators be necessary.” Finally, Michaels commented that the EPA’s effort to align the classification of chemical hazards with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals, adopted by OSHA in 2012, provides “a common and coherent approach to classifying chemicals based on their hazardous properties” and will “reduce duplication in effort and burden for those subject to these requirements.”

Those in the chemical manufacturing and processing, and petroleum and coal manufacturing industries may wish to keep an eye out to see if EPA’s proposed amendments are adopted, as the new rule may ease the regulatory burden of complying with parallel EPA and OSHA regulations.

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