By Mark A. Lies, II, Adam R. YoungJames L. Curtis, and Benjamin D. Briggs

Seyfarth Synopsis:  It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.

Please see the entire Alert, After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey, for the full article and recommendations.

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

Seyfarth Synopsis: As expected, OSHA has appealed an ALJ ruling that severely limits OSHA’s “controlling employer” enforcement policy. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. 8/4/17).

This case involves an unprotected excavation at a construction site that both parties agreed was in in violation of OSHA’s trenching standards.  The Respondent was the general contractor on the construction project with overall control and responsibility for the worksite.  The Respondent also had management employees on site who were present at the excavation who “could have easily” prevented the subcontractor’s employees from working in the unprotected excavation but did not do so.  However, the Respondent did not have any of its own employees who were exposed to the hazardous excavation.

OSHA cited Respondent as a “controlling employer” under OSHA’s multi-employer policy and longstanding Occupational Safety and Health Review Commission precedent that has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

Nonetheless, while the Commission has upheld “controlling employer” citations based on exposure to another employer’s employees, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  Accordingly, rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).  Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,”  and vacated the citation.

OSHA is appealing the ALJ’s decision to the 5th Circuit hoping that the 5th Circuit will reverse its 1981 holding in Melerine v. Avondale Shipyards, Inc.   This case represents a serious threat to OSHA’s multi-employer policy.  If upheld by the 5th Circuit, OSHA’s “controlling employer” policy may be in jeopardy. We will keep our readers apprised as this case develops.

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

Seyfarth Synopsis: New OSHA guidance documents may provide employers in these industries with another tool for carefully measuring compliance with the PSM standards.

OSHA recently released guidance documents on Process Safety Management for Explosives and Pyrotechnics Manufacturing (PSM Explosive Pyrotechnics Guidance) (OSHA 3912-03 2017), and the Process Safety Management for Storage Facilities (PSM Storage Guidance) (OSHA 3909-03 2017).

The PSM Explosive Pyrotechnics Guidance focuses on aspects of the standard particularly relevant to explosives and pyrotechnic manufacturers, found in OSHA’s standard on Explosives and Blasting Agents, 29 CFR 1910.109.  The PSM Storage Guidance focuses on aspects of the PSM standard particularly relevant to storage facilities generally.

OSHA notes that while all elements of the PSM standard apply to all PSM-covered pyrotechnics manufacturing or storage facilities, the following elements are most relevant to hazards associated with these facilities:

  • Employee Participation
  • Process Safety Information (PSI)
  • Process Hazard Analysis (PHA)
  • Operating Procedures
  • Training
  • Mechanical Integrity (MI)
  • Emergency Planning and Response

OSHA emphasizes that as to explosives, these PSM elements complement the “cardinal principle for explosive safety: expose the minimum number of people to the smallest quantity of explosives for the shortest period consistent with the operation being conducted.”

These Guidance documents provide employers with an outline to compliance with the applicable PSM standards that provide another review tool to achieve compliance.  Employers in these industries are encouraged to review these Guidance documents carefully to measure compliance with the standard, as you may be sure that OSHA’s inspector’s, if or when they visit, will do so.

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 and Craig B. Simonsen

Seyfarth Synopsis: OSHA has proposed to delay the reporting compliance deadline, until December 1, 2017,  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 1, 2017, and required employers to electronically file that information by July 1, 2017.  However, for months the regulated community had been asking how it would be expected to accomplish this electronic filing when OSHA had failed to set up a website capable of accepting the submissions.

In May 2017 OSHA acknowledged 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.”

OSHA has now formally proposed to extend the filing deadline until December 1, 2017.  82 Fed. Reg. 29261 (June 28, 2017).  Importantly, OSHA states that the proposed delay will also allow OSHA an opportunity to “further review and consider the rule.”  Accordingly, it appears that OSHA is reconsidering the entire rule and may even modify or revoke the rule prior to the December 1, 2017 filing date.  OSHA stated that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the final rule on electronically filing injury and illness data.

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 Benjamin D. Briggs, Brent I. ClarkJames L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: In an interesting outcome, an OSHRC Administrative Law Judge recently vacated a citation to an alleged “controlling employer” based on 5th Circuit precedent – despite being contrary with OSHA policy and other OSHRC precedent.

A recent Occupational Safety and Health Review Commission (Commission) Administrative Law Judge, Brian A. Duncan’s decision, in Hensel Phelps Construction Co., Docket No. 15-1638 (April 28, 2017), considered whether Respondent, as the general contractor for the project, can be held liable for the violation as a “controlling employer.”  Additionally, the parties argued and stipulated that under 5th Circuit case law, that OSHA’s “controlling employer” policy has been invalidated and is unenforceable.

The Commission has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

In the facts in this case, according to the ALJ, the Respondent had overall construction management authority on the project.  Pursuant to its contract with the City of Austin, and as the jobsite general contractor, Respondent also had authority through its officials and agents to stop construction work performed by subcontractors when hazardous conditions were found, and to prevent them from continuing work due to safety concerns.  Respondent’s onsite safety managers had previously exercised control over jobsite safety by stopping subcontractor work, and by removing subcontractor employees from the jobsite.  In fact, “Respondent’s Area Superintendent … and … Project Superintendent … were actually present when CVI employees were performing work in the unprotected area of the excavation.”

However, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit, according to the ALJ, ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  In this case, the ALJ clarified that that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).

Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition.”  The citation was vacated.

For employers this outcome raises a clear example of where, if issued an OSHA citation, such as under OSHA’s multi-employer citation policy, it is important to review the citation from the big picture, including the law, regulations, and all case law precedent that might impact the citation on the particular employer.  The jurisdiction in which the case arises matters.

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, Brent I. Clark, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: OSHA is sponsoring a “Safe + Sound Week,” another example of a more cooperative approach to worker safety and health issues.

We had blogged previously on OSHA’s 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.

Now OSHA, along with the National Safety Council, American Industrial Hygiene Association, American Society of Safety Engineers, and the National Institute for Occupational Safety and Health, is sponsoring the first “inaugural” Safe + Sound Week.  It has designated June 12-18, 2017, for the event.

In announcing the event, the U.S. Secretary of Labor Alexander Acosta said that “our nation has made great strides in raising awareness about the importance of workplace safety, yet more than four million workers suffer serious job-related injuries or illnesses annually. We can do better.”

According to the announcement, participating in this event will “help organizations get their safety and health program started” or energize an existing one.

OSHA notes that “effective programs have three core elements”:

  • Management leadership that commits to establishing, maintaining and continually improving the program.
  • Workers who help identify solutions for improvements.
  • A systematic “find and fix” approach that calls upon employers and workers alike to examine their workplaces – proactively and routinely – to identify and address hazards before an injury or illness occurs.

More information on how to participate is provided on OSHA’s webpage.

This event is another example of a more cooperative approach to worker safety and health issues. As we noted previously, this is not the tone that 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 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.