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

Seyfarth Synopsis:  OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing;  “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”  The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.  The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs.  Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested.  OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

  1. OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs.  With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.”  The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month.  OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party.  The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting.  According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.  Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace.  A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires.  The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses.  Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

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, Labor & Employment, or the Workplace Policies and Handbooks Teams.

By Joshua M. Henderson, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis:  Last week, Governor Brown signed into law Assembly Bill No. 2334, Occupational Injuries and Illness, Employer Reporting Requirements, and Electronic Submission.

A six-month statute of limitations period currently applies to all citations issued under Cal/OSHA. Assembly Bill 2334 will allow the California Division of Occupational Safety and Health (Cal/OSHA), starting January 1, 2019, to cite employers for injury and illness record-keeping violations “until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist.” In theory, the six-month limitation period could, depending on the circumstances, extend up to the five years that employers must maintain injury and illness records.  The limit firmly remains six months for federal OSHA.  See OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years.

The new law also may require the state to establish an advisory committee to determine whether employers should be required to file copies of their workplace injury and illness (WII) records with the state.

The law’s provisions leave many questions to be determined.  For example, if federal OSHA drops the requirement for employers to electronically file summaries of each injury with the Agency, would the committee recommend Cal/OSHA require employers to file with the state, instead?  It may well be quite a while before the committee is even created, much less makes recommendations to Cal/OSHA because the committee would conceptually be formed after federal OSHA loosens current filing requirements.

The bill appears to be a direct reaction to the Trump administration’s efforts to roll back record-keeping mandates set during the previous administration. Under the Obama administration, federal OSHA established a 5-year limit for record-keeping violations, however that limit was set aside by a congressional resolution signed by President Trump. The Trump Administration also substantially diminished employer obligations to electronically submit injury and illness data to federal OSHA.

We have frequently blogged on the contentious federal WII Rule.  See Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting Requirements, All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

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, Kristin G. McGurn, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, has just released a Report on “Facing Addiction in America: The Surgeon General’s Spotlight on Opioids,” (Washington, DC: HHS, September 2018).

In the Report, Alex M. Azar, II, Secretary of the HHS, notes that “the opioid misuse and overdose crisis touches everyone in the United States.  In 2016, we lost more than 115 Americans to opioid overdose deaths each day, devastating families and communities across the country. Preliminary numbers in 2017 show that this number continues to increase with more than 131 opioid overdose deaths each day.  The effects of the opioid crisis are cumulative and costly for our society—an estimated $504 billion a year in 2015—placing burdens on families, workplaces, the health care system, states, and communities.”

The “evidence-based public health approach” described in the Report offers a way forward.  Its goal is to reduce the impact of the opioid crisis by addressing factors that contribute to opioid misuse and its consequences.  The Report offers that by adopting this approach—which seeks to improve the health, safety, and well-being of the entire population—the nation will have an opportunity to take effective steps to prevent and treat opioid misuse and opioid use disorder and reduce opioid overdose.  The evidence-based public health approach to the opioid crisis complements the broader healthcare ecosystem’s focus on social determinants of health and consumers’ behavioral conditions, which are widely viewed as critical to improving individual and national health outcomes over the long term.

Specifically, the Report offers suggestions for various key stakeholders, including, the healthcare profession and other employers generally:

Health Care Professionals and Professional Associations – As Employer and Provider:

  • Address substance use-related health issues with the same sensitivity and care as any other chronic health condition.
  • Support high-quality care for substance use disorders.
  • Follow the gold standard for opioid addiction treatment.
  • Follow the CDC Guideline for Prescribing Opioids for Chronic Pain.
  • When opioids are prescribed, assess for behavioral health risk factors to help inform treatment decisions, and collaborate with mental health providers.
  • Check the PDMP before prescribing opioids.
  • Refer patients to opioid treatment providers when necessary.
  • Become qualified to prescribe buprenorphine for the treatment of opioid use disorder.

Industry and Commerce:

  • Support youth substance use prevention.
  • Continue to collaborate with the federal initiative to reduce prescription opioid-and heroin-related overdose, death, and dependence.
  • Reduce work-related injury risks and other working conditions that may increase the risk for substance misuse.
  • Offer education, support and treatment benefits for workers affected by the opioid crisis.

As a resource for employers, the HHS also offers the Surgeon General Postcard “What Can You Do To Prevent Opioid Misuse?”  The card encourages employers to open up to conversations about the impact of addiction, to learn how to read the signs of struggle within the workforce, to ensure safe workplaces designed to minimize the need for pain prescriptions, and to be prepared to deal with a crisis.  Specifically, HHS counsels:

TALK ABOUT IT:  Opioids can be addictive and dangerous. We all should have a conversation about preventing drug misuse and overdose.

BE SAFE:  Only take opioid medications as prescribed. Always store in a secure place. Dispose of unused medication properly.

UNDERSTAND PAIN:  Treatments other than opioids are effective in managing pain and may have less risk for harm.  Talk with your healthcare provider about an individualized plan that is right for your pain.

KNOW ADDICTION:  Addiction is a chronic disease that changes the brain and alters decision-making. With the right treatment and supports, people do recover. There is hope.

BE PREPARED: Many opioid overdose deaths occur at home. Having naloxone, an opioid overdose reversing drug, could mean saving a life. Know where to get it and how to use it.

HHS also provides help resources and information and a hotline (1-800-662-HELP (4357).

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

By Jay W. Connolly, Joseph J. Orzano, and Aaron Belzer

Seyfarth Synopsis:  Join us on Tuesday, September 25th, for this timely California Proposition 65 webinar that will  provide an overview of the updated warning regulations.  The webinar will also discuss the potential impact of the new regulations on enforcement trends.  Lastly, the webinar will provide strategies for businesses seeking to become compliant, as well as those looking to evaluate existing compliance plans based on the latest Proposition 65 developments.

California’s Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to Californians before knowingly and intentionally exposing them to known carcinogens or reproductive toxins.  After a two-year grace period, substantial modifications to the regulations for providing clear and reasonable warnings under Proposition 65 took effect on August 30, 2018.

There is no cost to attend but registration is required.

The webinar will take place at:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Note that CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By James L. Curtis, Erin Dougherty Foley, Adam R. Young, Megan P. Toth, and Craig B. Simonsen

Seyfarth Synopsis: Employers must evaluate their safety protections for pregnant women and engage in the interactive process with employees to find reasonable accommodations.

Reproductive Health Hazards in the Workplace

Pregnant women work in hazardous jobs across the United States and in every sector of the economy.  While employers have a general duty to protect their employees from a condition known to cause harm, pregnant women may face unique risks and may be more susceptible to a range of serious workplace hazards.

The Occupational Safety and Health Administration (OSHA) notes that “exposure to reproductive hazards in the workplace is an increasing health concern.”  The National Institute for Occupational Safety and Health (NIOSH) has information resources on pregnancy and reproductive health hazards.  Ionizing radiation and lead, for instance, are known hazards to pregnant women and reproductive health.  A fetus might be more vulnerable to certain chemicals, particularly in the early stages of pregnancy when it is rapidly growing and the baby’s organs are developing.  Further, changes in a pregnant employee’s immune system, lung capacity, and even ligaments can increase their risk of injury or illness due to certain workplace hazards.  Employers must protect their employees (including more susceptible pregnant employees) and prevent exposures to these known hazards.

Involuntary Reassignments of Pregnant Women

This does not mean that employers should be reactive and involuntarily remove pregnant women from positions or duties in which they may be exposed to hazards, either to themselves or their developing baby, without the employee’s request and/or agreement. There are both federal and state laws that protect pregnant employees in the workplace, including Title VII to the Civil Rights Act of 1964, which prohibits discrimination based on sex and the federal Pregnancy Discrimination Act prohibits discrimination against employees “on the basis of pregnancy, childbirth, or related medical conditions.”  Moreover, the Americans with Disability Act (ADA), as well as state pregnancy accommodation laws, prohibit discrimination based on qualifying pregnancy related disabilities, and, under certain circumstances, prohibit employers from requiring employees to take accommodations to which they do not agree (i.e., a forced reassignment or relinquishment in job duties).

To the extent that an employer changes a job assignment or removes a woman from a desirable position because she is pregnant or may become pregnant, without a specific accommodation request, and in some cases, agreement from the employee, the employer could face a claim of gender and/or pregnancy discrimination.

Where there is no medically-documented basis (e.g. chemical or radiation hazard) that exposure might injure a fetus, a pregnant or potentially pregnant employee’s perceived susceptibility to a hazard probably would not be a legitimate reason to involuntarily demote, take away opportunities, or discharge a female employee. This, however, does not mean that employers should not offer pregnant workers the opportunity to avoid exposure that may be more harmful to them based on their pregnancy or that it should not be consider as an accommodation.  It simply means job assignment and removal of desirable duty should not be assumed or forced upon a worker because she is pregnant.

However, some potential chemical and radiation exposures may force an employer to make involuntary reassignments.  For example, low levels of lead or radiation may be safe for most employees, but may not be safe for women who are pregnant or may become pregnant.  Employers should inform employees of these hazards and their potential effects on reproductive health and fetal health, and request that the employee notify the employer if the employee is pregnant or is potentially pregnant.  Where there is a potential chemical or radiation hazard that might injure a fetus, an employer may need to propose a reassignment and overrule an employee if she rejects the accommodation. Specific regulations address some of these hazards with regard to pregnant women and mandate actions by the employer.  See https://www.osha.gov/SLTC/reproductivehazards/standards.html; and https://www.osha.gov/SLTC/radiationionizing/pregnantworkers.html.

Changes to Protective Equipment

Because of physical changes to the body during pregnancy which may necessitate new safety protections, employers must consider some workplace safety equipment changes to protect and accommodate pregnant employees.  Personal Protective Equipment, such as a harness for a personal fall arrest system, may no longer fit a pregnant employee or may have the potential to cause unnecessary harm to a worker or their developing baby.  Similarly, gloves, sleeves, helmets, or specialized boots may need to be replaced by the employer, with the assistance of the employee to ensure a proper fit.

Respirators present a trickier question.  If an employee passed a medical evaluation and fit test before becoming pregnant, she may present different medical issues with using a respirator and the respirator may no longer fit properly.  Employers should contact their medical professional to help coordinate any respirator use by pregnant employees.

Disclosure and Voluntary Accommodations

NIOSH recommends that a pregnant employee discuss possible job hazards with the employer and their doctor as soon as possible after learning about the pregnancy.  NIOSH suggests that many pregnant women adjust their job duties temporarily, or take extra steps to protect themselves.

The ADA, as well as various state laws, also requires employers provide accommodations to employees with qualifying pregnancy-related disabilities, upon becoming aware that employees are in need of such an accommodation.  Although employees should be expected to notify their employers of their need for a pregnancy-related accommodation, there are no “magic words” that trigger an employer’s obligation under the ADA. Therefore,  managers should be well trained to identify and properly inquire when a pregnancy-related accommodation may be needed, and how to appropriately engage in the interactive process, both under the ADA and any applicable state laws.

For example, if employers are concerned about exposures to pregnant employees, and the employee has reported that she is pregnant, the employer may ask the employee whether she needs any accommodations.  If the employee is interested in an accommodation, the employer should engage in the interactive process, including a robust dialogue with the employee to determine what reasonable accommodations may be agreeable.  If the employee can no longer perform the essential functions of their position, and there are no other reasonable accommodations available, reassignment to an open position, or if no open positions, a leave of absence, may be the only potential reasonable accommodations possible. However, it is important to be aware, an employee may not be forced to take a different position or a leave of absence as a reasonable accommodation, if there are other reasonable accommodations available.

More Information About Pregnancy In the Workplace

Pregnancy in the workplace presents a range of employment issues that confound human resources managers, in-house counsels, and safety managers.

Seyfarth Shaw has frequently blogged on other pregnancy and employment related issues and topics, like Governor Baker Signs Into Law the Massachusetts Pregnant Workers Fairness Act, Rescind that Job Offer After Her Notice of Pregnancy? Maybe Not, SCOTUS Rules on Pregnancy Accommodation Case, “A Telecommute Dispute” – What is a Reasonable Accommodation Under the ADA?, Supreme Court Debates Reach of Pregnancy Law, New Guidance From The EEOC Requires Employers To Provide Reasonable Accommodations Under The Pregnancy Discrimination Act, New York City and Philadelphia Pass New Pregnancy Accommodation Laws, Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits, Pregnancy Discrimination Update: Young v. United Parcel Service, Inc., and Retail Detail: Pregnancy Discrimination, Accommodations and Issues For Retailers.

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), Absence Management and Accommodations, or Workplace Policies and Handbooks Teams.

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

Seyfarth Synopsis:  With Hurricane Florence bearing down on the East Coast, employers are looking at potentially huge liabilities, including employee injuries and fatalities, not to mention facility damage and rebuilding. Employers should have an Emergency Action Plan, and if they have one, they should follow it.  

Introduction

Authorities are closely monitoring the ongoing hurricane season as Hurricane Florence menaces the southeast coast of the United States.   For employers who are obligated to keep their employees safe during working hours, disaster preparedness is critical.  This blog contains an updated primer on (1) preparing for an emergency; (2) taking action during an emergency; and (3) cleaning up and resuming business after an emergency.

Preparing for an Emergency

29 C.F.R. 1910.38 requires all workplaces with more than 10 employees to develop a written Emergency Action Plan (EAP), when required by an OSHA standard, to identify and coordinate necessary employer and employee actions during an emergency.  At a minimum, the EAP must include the following elements:

  • Means of reporting emergencies (fires, floods, etc.);
  • Evacuation procedures and assigned exit routes;
  • Procedures to account for all employees following an evacuation;
  • Procedures to be followed by employees who must remain behind to attend to critical plant operations before evacuating;
  • Rescue and/or medical duties for employees who are assigned and trained to perform them; and
  • Names or job titles of people who can be contacted for more information about the plan.

In addition to these required elements, it is recommended that employers also consider including the following in the EAP:

  • The location of the nearest hospital or emergency medical center;
  • The type of alarm system used to notify employees of an emergency;
  • Procedures for protecting information including procedures for storing or maintaining critical documents and records;
  • The location and permissible uses of protective equipment such as portable defibrillators, first aid kits, dust masks, fire extinguishers, etc.; and
  • The location of televisions or radios for further information during a disaster.

Ensuring the development of an effective EAP also requires the employer to train employees to understand their roles and responsibilities under the plan.  When conducting this training, the employer must address literacy, language, and cultural barriers to ensure that the training is effective.  Employers also must document the training.

OSHA has posted links and recommendations on its website to help employers prepare for hurricanes.  The website includes tips regarding how to create evacuation plans and assemble emergency supply kits.  The Environmental Protection Agency also has provided tips related to hurricane preparedness on its website.

Responding to an Emergency

Communication during an emergency is critical to maintain organization and prevent panic and injuries.  For example, not all emergencies require an evacuation of the workplace.  In some cases, such as flooding, storms, or the release of biological or chemical agents, staying indoors is safer for employees.  The first questions most people ask during an emergency is “should I stay or should I go?”  Employers can guide employees as to the appropriate course of action by having an alarm system that emits a different signal for “evacuate” emergencies than for “stay put” emergencies.  Alternatively, the alarm system could be programmed to give specific verbal instructions following the initial alert.  Employers must consider the needs of disabled employees (e.g. those who are hearing or visually impaired) in selecting any alarm system.

Employers should have an effective means of communicating with employees about the following during an emergency:

  • Whether to evacuate or stay put;
  • How and where to get information about the emergency itself;
  • What areas of the building to avoid;
  • How and when it is safe to return to the work area; and
  • How and when it is acceptable to contact family members and loved one.

Picking Up the Pieces

Once the proverbial dust settles after an emergency, hazards to employees can still remain.  For example, downed power lines in a flooded parking lot can injure or kill employees leaving the building after the storm passes.  Hazards are even greater for employees who are tasked with cleaning up after an emergency.  OSHA Region 4 Administrator Kurt Petermeyer recently indicated that “workers involved in storm cleanup can face a range of safety and health hazards…. Risks can be minimized with knowledge, safe work practices, and personal protective equipment.  Cleanup work after the storm may involve hazards related to restoring electricity and communications, debris cleanup, roof repair, and tree trimming.  Only those with the proper training, equipment, and experience should conduct cleanup activities.”  Employees who are actually performing clean-up work after a flood, storm, earthquake, or other disaster may be exposed to one or more of the following hazards:

  • Exposure to hazardous materials such as asbestos, mold, lead, or chemicals;
  • Downed power lines and trees;
  • Heat illness;
  • Confined spaces;
  • Blood borne diseases or other contagions;
  • Mosquito borne diseases such as Zika virus; and
  • Structural destabilization.

OSHA’s website provides a Hazard Exposure and Risk Assesment Matrix for Hurricane Response and Recovery Work, outlining the most commonly performed duties during hurricane response and recovery work, and the hazards employees could face.  OSHA has developed specific standards to address many of these hazards.  For example, OSHA’s Hazardous Waste Operations and Emergency Response standard, 29 C.F.R. § 1910.120, applies to employees who are performing clean-ups of hazardous waste or other hazardous materials.  OSHA’s asbestos and lead standards require employers to evaluate the level or exposure to employees, provide appropriate protective equipment, and, in some cases, conduct regular monitoring of air quality in the work area.

In addition to these specific standards, other more general requirements will also come into play.  For example, OSHA’s welding and cutting Lockout/Tagout, confined space entry, and fall protection programs may come into play, even if no OSHA standard specifically addresses the type of clean-up activity taking place.  Finally, as always, OSHA’s General Duty Clause requires employers to provide a workplace free from recognized hazards.  Accordingly, even if no OSHA standard applies to a particular activity or hazard, employers may still face citation liability if the hazard is reasonably likely to cause serious injury or death and there is a feasible means of abatement to correct the hazard.  Before allowing employees to commerce any kind of clean-up work then, the employer must conduct a job hazard analysis (JHA) to identify and address potential hazards.

Multi-Employer Worksite Doctrine

It is important to note that even employers who hire outside contractors to clean up after a disaster must recognize their obligations for worker safety.  OSHA’s “multi-employer worksite” doctrine allows the agency to issue citations not only to the employer whose employees are actually performing the clean-up work, but also to other employers who either control the means and methods of work of the employees.  Accordingly, employers may be liable for the safety precautions provided to employees who are brought onto their worksites following a natural disaster.

Conclusion and Recommendations

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 help prevent panic, thereby minimizing employee injuries and damage to property.  We recommend that employers consider the following:

  • Develop an EAP that covers a wide variety of potential emergencies and gives employees clear guidance on what to do in each scenario;
  • Be cognizant of hazards employees may face even after the immediate danger has passed;
  • Train employees in evacuation plans and other emergency response procedures;
  • Conduct a job hazard analysis and review applicable OSHA standards before assigning any employees to perform clean-up work; and
  • Evaluate the safety record of any independent contractor hired to perform clean-up work, including investigating the contractor’s worker’s compensation history, its OSHA logs, and its history of citations from OSHA.

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, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Employment in healthcare occupations continues to outgrow all other industries, as the American population continues to age and nursing home and hospital services expand. Health care workers face a range of  safety issues, such as ergonomics, blood borne pathogens, and workplace violence. The federal Occupational Safety and Health Administration is refocusing its enforcement efforts to target healthcare employers.

According to the Bureau of Labor Statistics (BLS), the Healthcare Practitioners and Technical Occupations (Major Group) currently employs over 8.5 million workers. BLS further states “employment of healthcare occupations is projected to grow 18 percent from 2016 to 2026, much faster than the average for all occupations, adding about 2.4 million new jobs. Healthcare occupations are projected to add more jobs than any of the other occupational groups. This projected growth is mainly due to an aging population, leading to greater demand for healthcare services.”

The top categories of this increased employment are: General Medical and Surgical Hospitals, Offices of Physicians, Nursing Care Facilities (Skilled Nursing Facilities), Health and Personal Care Stores, and Outpatient Care Centers. Also included are Healthcare Social Workers and Home Health Aides. Many nurses and hospitals are unionized, which can lead to an increased push for government enforcement and involvement.

Regulators have begun to target workplace violence in healthcare settings. California OSHA has led the regulatory wave by issuing new, onerous regulations that require employers to create a Workplace Violence Prevention Plan, train employees, and maintain a Violent Incident Log. Federal OSHA has yet to promulgate a new workplace violence in healthcare standard (see Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries), but the Agency has targeted healthcare employers with General Duty Clause citations.

For example, in Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015), Judge Phillips issued an opinion affirming a General Duty Clause citation to a home health care services employer which alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior. After complaining that the client made her feel uncomfortable, the employee was fatally stabbed by the client at his home. Judge Phillips determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions. The case is illustrative of the increasingly close eye the Agency is placing on workplace violence, and the unique and challenging environment employees face in health care.

Moreover, healthcare systems worldwide share health policy and regulatory goals for ensuring quality care and patient safety, mitigating fraud, cyber threats, and the challenge of data protection.  Cybersecurity and data risk management continue to be a major concern.   Additionally, challenges in the health care industry, such as staffing shortages will remain an issue.

We have previously noted many workplace safety and violence trends in the healthcare sector, including with regard to the propensity of employees to suffer ergonomic injuries while treating and lifting patients. Here are some of our previous related blogs on these topics: Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry, NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers, OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting, Judge Affirms OSHA Citation in Death of Healthcare Worker Killed by Mentally Ill Client, OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers, and Healthcare Industry Receives New Fact Sheet on Musculoskeletal Disorders in Nursing and Residential Care Workers.

Each of these areas should be closely watched and targeted moving forward by healthcare employers.

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 Mark A. Lies, II, James L. Curtis, Daniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  New Review Commission decision refines the definition of what OSHA must prove to establish a “Repeat” violation.

On September 30, 2008, OSHA issued a citation to Angelica Textile Services, Inc., a commercial laundry, alleging ten Serious and four Repeat items. Seyfarth represented the employer, Angelica Textile Services, Inc. After the parties filed cross motions for summary judgment, the Administrative Law Judge issued a decision affirming two of the Serious items and vacating the remaining twelve items, including the Repeat citations. The Secretary of Labor appealed, arguing that the judge improperly vacated two Repeat citations that alleged deficiencies of permit required confined spaces (PRCS) and lockout/tagout (LOTO) procedures.

On July 24, 2018, nearly a decade after the citations were issued, the Occupational Safety and Health Review Commission (Commission) affirmed the previously vacated citation items, but characterized and reclassified them as Serious rather than Repeat violations, and issued a single reduced penalty of $7,000. See Secretary of Labor v. Angelica Textile Services, Inc., No. 08-1774.

Most importantly, the Commission refined the definition of what OSHA must prove to establish a Repeat violation. OSHA has traditionally taken the position that all the evidence it had to show to meet the “substantial similarity” standard was merely that the same type of equipment, process or regulation that was involved in the current violation was also involved in a prior final citation which served as the basis for the Repeat violation. In the Angelica decision, the Commission clarified that a showing of “substantial similarity” can be rebutted with a showing of “disparate conditions and hazards associated with these violations of the same standard.”

The decision also refined what defenses an employer may have to a Repeat citation based on the abatement actions it took to abate the earlier violation. Applied to the facts of the case, the Commission noted that the prior PRCS citation identified “critical deficiencies” in the employer’s compliance program.  However, in response to the prior citation, the Company “actively sought out and eliminated similar hazards,” including developing a PRCS program specific to the condition cited.

The majority in Angelica noted that the Company’s prior abatement efforts also resulted in reduced citations in the current matter.  Similarly, the Commission noted that the prior LOTO citation to the Company had identified a “comprehensive failure of compliance.”  However, the present case involved procedures established in the interim, as well as surveys completed for machines that the Company had undertaken in response to the prior violations.  Rather than lacking the previous comprehensive procedures as was the case in the earlier citations, there were only two discrete deficiencies in the employer’s current program.

Significantly, the Commission also remarked in a footnote that the Secretary had accepted the Company’s prior abatement method, thus giving no basis for OSHA to conclude that the Company knew that its interim safety precautions and corrective actions were not compliant.

After comparing the employer’s attempts at compliance with the prior and subsequent citations, the Commission reasoned that, while the prior citations had been based on a complete failure to comply, the current citations reflected only minimal deficiencies. In other words, “[the Company] took affirmative steps to achieve compliance and avoid similar violations in the future.”  Because of these interim abatement actions, the Commission concluded that there was no basis for a Repeat citation.

In light of the Angelica decision, it appears that OSHA’s burden of proof has been measurably increased to establish a Repeat violation and it will be more difficult for OSHA to prove Repeat citations against employers. Following the acceptance of a citation, employers should work with a team well versed in the concepts espoused in the Angelica decision so that it can take the appropriate steps to establish that it acted in good faith and took effective and documented action to correct the violation. Employers should “actively [seek] out and eliminate[] similar hazards,” or “[take] affirmative steps to achieve compliance and avoid similar violations in the future.”  As there is no mechanical way to avoid a Repeat citation, and the corrective actions taken will depend on the factual circumstances surrounding the citation, employers should consult experienced counsel for guidance on what constitutes abatement of the citation and how to properly document such actions. Most importantly, beyond the concern of legal liability, if an employer takes the interim actions endorsed by the Angelica decision, it will measurably enhance the safety and health of its workplace.

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 Joshua Henderson

Seyfarth Synopsis: As of August 30, 2018, California businesses must provide the public with more information about dangerous chemicals present at the business location. Many California employers will comply with the new requirements through the Cal/OSHA-required workplace hazardous communication program. For occupational exposures that do not meet the thresholds for HazMat communications, posting new signs will meet the requirements.

California’s ubiquitous Proposition 65 warnings, which warn the public at large of the presence of known cancer-causing chemicals, are receiving a makeover. Beginning August 30, 2018, regulations enacted by the Office of Environmental Health Hazard Assessment will require businesses to provide “clear and reasonable” warnings regarding Prop 65 listed chemicals. For businesses in general, this new requirement typically will mean displaying signs advising the public of known carcinogens on site. (Technically, California does not require the use of these signs, but they provide a safe harbor for businesses because they are deemed compliant with Proposition 65; it is more risky to rely on a homegrown Prop 65 sign.)

The new signs will display the name of at least one chemical that prompted the warning; convey more directly the risk of exposure for consumer products (e.g., saying the product “can expose you to” a listed chemical, rather than that the product “contains” a chemical); and refer to a website that will provide additional, relevant information.

For employers, however, not much will change. Employers already must warn employees of hazardous exposures, as defined by Cal/OSHA standards, occurring at the workplace. Most employers satisfy that duty by implementing a hazardous communication program that complies with Cal/OSHA standards. Employers may continue to do so under the revised Prop 65 regulations. In that sense, a compliant HazCom program (which already requires information about present hazards, employee training, and the availability of safety data sheets) will continue to provide a safe harbor to employers.

Some occupational exposures to listed chemicals do not trigger HazCom threshold requirements but nonetheless are covered by Prop 65. In those cases, Cal/OSHA still permits employers to use their HazCom program to comply. Employers may choose instead to use the new Prop 65 warning signs.

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, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.

Nebraska Railcar Cleaning Services LLC (NRCS) employees sent workers in to railcars to scrape and remove various commodities from tanker cars, including gasoline, ethanol, petroleum by-products, pesticides, herbicides, and food grade products.  Two of the company’s workers were killed and a third was injured when the contents of a railcar ignited while being cleaned.  According to the indictment, the company, NRCS and its owners and executives, allegedly failed to implement worker safety standards and then tried to cover that up during an Occupational Safety and Health Administration (OSHA) inspection.  The defendants also allegedly mishandled hazardous wastes removed from rail tanker cars during the cleaning process.

OSHA requires employers to test air in confined spaces such as rail tanker cars for hazardous gases prior to allowing employees to enter the confined workspace, and to provide employees exposed to certain chemicals with respirators for which they must be assessed and fit tested.  EPA requires facilities like NRCS to ensure that hazardous wastes generated are properly treated and disposed of.

The indictment alleges that after a 2013 inspection of NRCS, the company represented that NRCS had been testing for hazardous wastes, including benzene, since July 2014.  After OSHA returned to NRCS in March 2015 to conduct a follow-up inspection and was turned away, documents were “created” and submitted to OSHA to “falsely show” that NRCS had been purchasing equipment to test the contents of railcars for benzene and had taken other required safety precautions.  In addition, “during inspections by the Nebraska Department of Environmental Quality and the U.S. Environmental Protection Agency in 2013 and 2014 respectively, NRCS was informed that it was required to test its wastes to determine if they were hazardous in order to properly dispose of them, rather than send all untested waste to a landfill not permitted to receive hazardous waste.”  The indictment alleges that was not done before April 2015.

In April 2015, the contents of a railcar ignited while being cleaned by NRCS employees. Two employees were killed and a third was injured. Two days after the explosion, NRCS had three railcars tested to assess whether their contents were hazardous, and two were determined to be hazardous.

Employer Takeaways

This indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors.  First, if the employer represents that it is implementing certain safety measures — do it!  Secondly, the case serves as a reminder of the importance of providing complete and accurate submittals to government entities.  A deliberate falsification can have serious ramifications, both by way of civil penalties and criminal prosecution.  As everyone has learned through countless infamous cases, it’s not the crime but the cover-up that will really come back to bite the employer.

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.