By Jennifer L. Mora

Seyfarth Synopsis: As we reported here, the CBD (cannabidiol) craze is sweeping the nation. By 2022, it is expected to be a $22 billion per year industry. That said, if a CBD product has a concentration of more than 0.3% of tetrahydrocannabinol (THC), an amount generally viewed to be sufficient to produce a psychoactive effect, then it is an unlawful Schedule I controlled substance under federal law. Problems arise when employees test positive for THC but then claim to be using a “THC-free” or “pure CBD” product. If the product has less than 0.3% of THC, and the employee isn’t smoking or using other marijuana products, we generally would expect the employee’s drug test to return a negative test result. This quagmire has resulted in employers struggling to determine the impact of these products on their workplaces. Fortunately, some employers subject to certain regulatory requirements as they relate to drug and alcohol testing sometimes benefit from clear agency guidance.

Indeed, on February 18, 2020, the United States Department of Transportation published a bulletin addressing “DOT Office of Drug and Alcohol Policy and Compliance Notice,” which follows a previous notice it had released regarding its position on medical marijuana. With respect to medical marijuana, DOT wrote in a previous bulletin:

Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

In the new bulletin focusing on CBD, DOT wrote that it does not require testing for CBD but also recognized the problem with some CBD products having enough THC for an employee’s drug test to report a positive marijuana test result. The bulletin states:

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include:  pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

DOT-regulated employers should consider reviewing their current policies and practices to ensure compliance with DOT regulations, including the drug and alcohol testing rules in Part 40 and the bulletins that specifically address medical marijuana and CBD. In addition, employers in all industries may need to consider:

  • revising their policies to address CBD use;
  • training their managers and supervisors on how to address situations where an employee defends a positive drug test by claiming use of CBD;
  • educating employees about CBD; and
  • having a conversation with their drug testing providers about CBD and the lab’s drug testing and reporting processes.

Seyfarth Shaw will continue to monitor legal developments in this dynamic area of the law.

By Mark A.Lies, II, Brent I. ClarkDaniel R. BirnbaumIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA has issued guidance on protecting workers from exposure to 2019 Novel Coronavirus (2019-nCoV or Coronavirus).

Faithful readers are already familiar with our previous dispatches, including Chinese Coronavirus Outbreak—What Employers Need to Know; Coronavirus: Employer Liability Issues; Legal Update & January 6, 2020 Webinar–Coronavirus: Employer Liability Issues; and, of course, our Coronavirus INFORMATION and FAQs.

Now, Cal/OSHA has adopted guidance that covers California-specific safety requirements under its Aerosol Transmissible Diseases (ATD) standard.  (In contrast,  federal OSHA has no specific standard for regulating Coronavirus; rather, it generally regulates the potential hazard of Coronavirus via the “General Duty Clause” of the OSH Act, which requires employers to furnish workers with a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.)

California’s ATD standard requires covered employers to protect workers from diseases and pathogens transmitted by aerosols and droplets. The ATD standard primarily applies to health care facilities, but also applies to laboratories, public health services, police services, and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of aerosol transmissible diseases. Covered employers must have an “ATD Exposure Control Plan,” with procedures to identify Coronavirus cases or suspected cases as soon as possible and protect employees from infection.

California’s ATD standard also requires covered employers to protect employees from the Coronavirus through

  • training on topics such as signs and symptoms of the disease and modes of transmission,
  • engineering controls such as “airborne infection isolation rooms or areas, exhaust ventilation, air filtration and air disinfection,”
  • work practice controls such as “procedures for safely moving patients through the operation or facility, handwashing, personal protective equipment donning and doffing procedures, the use of anterooms, and cleaning and disinfecting contaminated surfaces, protective equipment, articles and linens,”
  • personal protective equipment, and
  • medical services including infection determination and treatment.

Laboratory operations are subject to additional requirements, including the CDC’s Interim Laboratory Biosafety Guidelines for Handling and Processing Specimens Associated with 2019 Novel Coronavirus (2019-nCoV).

Cal/OSHA reminds all employers and workers that any suspected cases of Coronavirus must be promptly reported to the local public health department.

The California Department of Public Health has updated information on Coronavirus and reporting requirements. The Centers for Disease Control and Prevention has also posted specific information for health care workers and laboratory settings.

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) TeamWorkplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

Edited by Elizabeth Levy

By James L. CurtisMark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: In its introduction to its New Active shooter training materials, the Illinois State Police note that “civilians that are present at any given incident are the true first responders.”

The Illinois State Police (ISP) have developed and are making publically available a training seminar on the civilian response to active violence and other critical incidents. The seminar topics include Active Shooter scenario, See Something – Say Something, Emergency Action Plans, and the Run – Hide – Fight response.

In its materials, the ISP defines critical incidents as those that may occur at any location (including the workplace), that may impact large numbers of victims, and may be man made, naturally occurring, and may be survivable in many cases.

The ISP summarize thier training, saying that “you can survive.”  It depends on individual mental preparation, having a plan, situational awareness, and actions.

Employers will be wise to develop workplace violence prevention plans and train employees on how to respond to active shooter incidents.

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 and Daniel R. Birnbaum

Seyfarth Synopsis: By now, the worldwide health authorities and media have publicized the 2019 Novel Coronavirus (2019-nCoV) (sometimes called Coronavirus) (the “virus” or “disease”) that has been first identified in Wuhan, Hubei Province, China. Although the United States has only experienced several cases of the virus, it is only a matter of time before the disease surfaces in more cases throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

During this webinar program we will inform employers about current information on Coronavirus available from the CDC, WHO, and other health organizations. In addition, attendees will be provided with an overview of the potential legal liabilities associated with employees who may contract the disease. Finally, the program will provide practical recommendations to avoid potential employee exposure from the disease and actions to be taken in the event that an employee actually contracts the disease.

The webinar will take place on Thursday, February 6, 2020, from:

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

Please Register Here.

If you have any questions, please contact Cassie Peterson at clpeterson@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental practice.

*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 Mark A. Lies, II and Adam R. Young

Seyfarth Synopsis: OSHA facility visits and corresponding employee interviews can be a vexing scenario. OSHA employee interviews are a source of OSHA monetary citations. Unfortunately, most employers do not realize this potential source of liability and do not prepare their employees for the interviews. In their recent article on the topic, Mark and Adam offer some thoughts and potential recommendations for employers to prepare their employees for interviews.

Mark Lies and Adam Young have recently published their article on OSHA Employee Interviews-Leveling the Playing Field, in Concrete Openings, the official magazine of the Concrete Sawing and Drilling Association (CSDA).

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. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2020 increases to MSHA civil penalties.

The DOL has finalized the 2020 inflation adjustments, which will nudge the penalties up 1.764%.  85 Fed. Reg. 2292 (Jan. 15, 2020).

Under the 2020 rule, the new MSHA civil penalties for some of the most common citation types will be:

2019 Penalties 2020 Penalties
104(a) Regular Assessment: $135 -$72,620 $137 – $73,901
Flagrant Violations: $266,275 (maximum) $270,972 (maximum)
104(d)(2) Unwarrantable Failure Withdrawal Order: $4,840 (minimum) $4,925 (minimum)
104(b) Failure to Correct : $7,867 (maximum) $8,006 (maximum)

The new MSHA penalty amounts are applicable to MSHA citations issued after January 15, 2020, for violations occurring after July 15, 2019.

Going forward, DOL is required to continue to adjust maximum OSHA penalties for inflation by January 15 of each new year.

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 Jennifer L. Mora and Adam R. Young

Seyfarth Synopsis:  Employers considering a tolerant attitude towards recreational cannabis in the workplace should consider safety hazards and legal liabilities. 

In the heyday of the two-martini lunch, employers regularly tolerated alcohol in the workplace or employees presumably impaired by alcohol returning to work.  Over the succeeding decades, employers began to concentrate on the business and legal liabilities imposed by drug and alcohol use and impairment in the workplace — including increased absenteeism, mistakes, sexual harassment, workplace violence, and accidents/injuries.  Employers also discovered that their insurance companies claimed exemptions for certain claims if the employee that created the issue had been consuming alcohol at work. As a result, employers largely began to adopt policies that prohibited employees from using or being under the influence of alcohol (and drugs) while at work.  Most employers since have prohibited alcohol and drugs entirely or restricted alcohol to occasional company Christmas parties and social functions.

While we have not seen a mainstream resurgence of alcohol consumption in the workplace, we have noticed a distinct trend of some collaborative and creative workplaces, including co-working environments, to expand access to alcohol in the workplace, often with bars and kegs onsite.  Employers who elect to allow “drinking at work” are well-advised to implement policies regarding such use and consider a variety of safety and other issues that could result, including how to handle intoxicated employees, whether to provide transportation for employees to drive home, tracking and limiting consumption, defining the times during the day when drinking is and is not allowed, and handling complaints lodged against employees.  With the legalization of recreational marijuana in many states, some employers with permissive alcohol regimens are confronting whether they will treat marijuana as they treat alcohol.  How will they address workplace use and impairment?

Marijuana is unlawful under federal law and employers have the right to prohibit its possession, use, and impairment by employees in the workplace (or while on company time).  But some employers (often in creative fields) are considering relaxing their prohibitions on cannabis or even allowing cannabis in the workplace.  They often hope to attract newer generations of workers who may have a positive impression of cannabis and its contributions to creative and productive output in the workplace.  Employers must consider — are the liabilities that potentially result when an employee uses cannabis at work the same as or greater than those associated with alcohol use? Can an employer even allow this if it wants to? To what extent “weed at work” starts to become as mainstream as alcohol at work remains to be seen, but there are several considerations that employers might want to ponder.

  • One way in which alcohol and cannabis are the same is in the context of occupational safety hazards. Cannabis is a psychoactive drug that impairs decision-making, motor skills, and response time. As we have previously blogged, according to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are “safety-sensitive,” where an impairment will put the employee, coworkers, clients, or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.
  • Employers subject to the federal Drug-Free Workplace Act cannot allow employees to use any controlled substance in the workplace lest they risk losing their government contract. Although more states are enacting recreational and medical cannabis laws, cannabis still is illegal as a matter of federal law and, thus, employers with government contracts should not consider permitting the use of cannabis or controlled substances at work.
  • Employers may have better control of alcohol consumption at work if they make the alcohol available and have a procedure in place to ensure that only a certain amount of alcohol is consumed. Indeed, some employers use a “kegbot,” which is an app that requires employees to login each time they get a drink, which helps the employer track what and how much the employee drank. Some employers have a bar with a server that tracks and monitors consumption. If an employer allows employees to consume cannabis while at work, there simply is no way for the employer to know the strength of the cannabis being consumed or how much. While well-intentioned, this approach may be inadvisable with cannabis products. The employer providing or dispensing marijuana at work may be committing felonious possession with intent to distribute a Schedule I drug under federal law.
  • Under the Occupational Safety and Health Act’s “general duty clause,” employers must furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.” If an employer knowingly tolerates the use of an illegal and impairing drug, such as cannabis, even for medical purposes, while an employee performs hazardous tasks (e.g., driving a forklift), this might create an impermissibly hazardous environment and potential liability for a General Duty Clause violation. We have not yet seen a similar citation issued by federal OSHA or a state plan.  Some state plans also have regulations that prohibit employees from being under the influence of drugs or alcohol, which could be the basis of a further citation.

Accordingly, employers are struggling to address the new hazards of widespread use of recreational cannabis and its many risks to the workplace.  While not all employers are continuing drug testing for cannabis, employers would be wise to consider the many legal liabilities associated with permitting cannabis in the workplace.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Cannabis Law Practice or Workplace Policies and Handbooks Team.

By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Chemical Safety and Hazard Investigation Board (CSB) has proposed new accidental chemical release reporting requirements that are broad in scope and would cover additional chemicals, lower threshold quantities, and more areas within a stationary source than existing regulatory release reporting requirements already facing industry.

The CSB proposed rules on Accidental Release Reporting last month which impose on industry new reporting requirements in addition to existing reporting requirements under CERCLA, EPCRA, SPCC, CAA, CWA, RMP, PSM and OPA in the event of an accidental chemical release.  84 Fed. Reg. 67899 (Dec. 12, 2019).  The proposed rule is confusing in that it utilizes different definitions than used under other EPA release reporting rules and requires facilities to undertake a new analysis of the type of chemical release that would fall under the scope of the CSB’s reporting requirements.

The rule is proposed pursuant to 42 U.S.C. 7412(r)(6)(C)(iii), which specifies that the CSB “shall establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigative jurisdiction.”  The proposal comes after a U.S. District Court ordered the CSB to issue a rule by February 2020 requiring the reporting of accidental chemical releases to the CSB.  See Air Alliance of Houston, et al. v. U.S. Chemical Safety and Hazard Investigation Board, 365 F. Supp. 3d 118 (D.D.C. 2019).

The proposed rule requires owners or operators of a stationary air emissions source to report to the CSB (in addition to all other reporting obligations to various regulatory authorities under other reporting requirements) any accidental release resulting in a fatality, “serious injury,” or “substantial property damage.”  In addition to basic contact and location information, the report must include a brief description of the accidental release; approximate time of the release; an indication of whether the release involved fire, explosion, death, serious injury or property damage; the material involved in the release and appropriate identifiers; evacuation efforts and scope of impact to the general public; and if known, the amount of the release, number of fatalities, serious injuries, and estimated property damage.

According to the CSB, “the purpose of the proposed rule is to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”  However, the rule is troubling because it imposes requirements that are overly burdensome and confusing in light of existing EPA rules, definitions and policies, and existing regulatory spill and release reporting requirements.  Below are six important distinctions about the CSB release reporting rule that industry members should take note of when considering the impacts of the required chemical release notifications:

First, the CSB has chosen to define “ambient air” differently and more broadly than EPA has under the Clean Air Act.  Specifically, ambient air under the proposed CSB rule means any portion of the atmosphere inside, adjacent to, or outside a stationary source.  Existing EPA air quality standards limit the definition of ambient air to the portion of the atmosphere that is external to buildings, to which the general public has access.  By defining ambient air differently than under the CAA, CSB’s intent is to “protect workers inside structures at a stationary source,” (as if existing OSHA regulations do not already do so).

Second, the CSB defines an “accidental release” to mean an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.  The term “extremely hazardous substance” in turn is very broadly defined to include any substance that alone, or in combination with other substances or factors, causes death, serious injury, or substantial property damages.  Not only are the conflicting definitions confusing, the CSB definition is different from the definition of “extremely hazardous substance” under CERCLA, which is defined based on lists of chemicals and their threshold quantities under Appendices A and B of 40 CFR Part 355.  The CSB definition on the other hand, does not apply only to existing regulated substances or threshold quantities of a hazardous substance; instead, it focuses on the consequences of the substance in the event of a release.  To highlight the broad scope of its applicability, the CSB definition of “extremely hazardous substance” includes the phrase “including but not limited to any ‘regulated substance’ at or below any threshold quantity set by the EPA Administrator. (emphasis added).”  Thus, industry cannot rely on existing laws and rules to guide the analysis of what constitutes an “extremely hazardous substance” that would require reporting to the CSB in addition to reporting under EPCRA.

Third, the CSB’s reporting requirement is tied to a fatality, serious injury, or “substantial property damage.”  The CSB has based its definition of “serious injury” on OSHA’s definition of the term, to include any injury resulting in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness, as well as any injury or illness diagnosed by a physician. This definition, coupled with the lack of a trigger threshold quantity of a chemical, increases the number of chemical releases that facilities would otherwise be required to report under EPCRA, whether or not such releases have the potential to have a significant impact.

Fourth, the CSB defines “general public” as any person except for workers, employees, or contractors working for (or on behalf of) the owner or operator of a stationary source from which an accidental release has occurred and any person acting in the capacity of an emergency responder to an accidental release from a stationary source.  The CSB acknowledges that EPA has longstanding policies and guidance documents limiting the scope of general public access to mean those areas where the general public does not have access to property, through implementation of a fence, physical barrier, or, based on December 2019 EPA guidance, other measures that would limit access to the land by the general public.  The CSB is purposefully expanding on the definition of “general public” to include individuals who may be within the boundaries of a property.

Fifth, the CSB requires reporting within four hours after an accidental release has occurred, whereas CERCLA and EPCRA reporting is required within 15 minutes of a release.  It has long been argued by industry that in the aftermath of a release, facilities are focused on managing response activities and ensuring employees and the public are safe.  Amidst ongoing emergency response activities, coordination with local responders, and notifications to a multitude of existing regulatory authorities who must already be contacted, facilities must also provide a separate report by e-mail or telephone to the CSB.

Finally, the CSB clarifies that notifications made to the National Response Center (NRC) will not suffice under its proposed rule.  The facility must take the additional step of submitting the NRC identification number to the CSB if it has not yet submitted a report directly to the CSB within four hours of the accidental release.  Enforcement for failing to timely report accidental releases will be delayed for one year after the effective date of the rule.

Facilities impacted by this proposed rule should stay abreast of any developments regarding when the rule goes into effect and the impacts of the language in the final rule.

For more information on how to comply with existing accidental release reporting requirements or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.

By James L. CurtisMark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  First American case reported of deadly new Chinese coronavirus.

The Centers for Disease Control and Prevention (CDC) has indicated that it is closely monitoring an outbreak caused by a new 2019 Novel Coronavirus (2019-nCoV) (coronavirus) first identified in Wuhan, Hubei Province China.

Reuters reports that the virus has claimed nine lives and infected at least 470 people in China. The South China Morning Post reports that the “National Health Commission of China confirmed 900 people are still under medical observation.”  “The outbreak has been linked to Wuhan’s Huanan Wholesale Seafood Market, which has since been closed. Weeks after the market in the city in central China became ‘ground zero’, the authorities said human-to-human transmission played a role in the outbreak.”  The CDC indicates that human-to-human transmissions is likely, but the precise method and likelihood of transmission is unclear.

The CDC announced the first case in the United States in Washington State on January 21, 2020.  The patient travelled to the United States from Wuhan on January 15, 2020.  The patient sought care at a medical facility, where the suspected coronavirus was identified.

As widely publicized, on January 17, 2020, the CDC began implementing public health entry screening at San Francisco (SFO), New York (JFK), and Los Angeles (LAX) airports.  It later added entry health screening at Atlanta (ATL) and Chicago (ORD).  The CDC has also activated its Emergency Operations Center to better provide ongoing support to the coronavirus response.  The CDC is working closely with Washington State and local partners.  A CDC team has been deployed to support the ongoing investigation in Washington State, including potentially tracing close contacts to determine if anyone else has become ill.

The CDC warns travelers in an “Alert – Level 2, Practice Enhanced Precautions,” that:

  • Person-to-person transmission of coronavirus is occurring.
  • Preliminary information suggests that older adults and people with underlying health conditions may be at increased risk of severe disease from this virus.
  • Travelers to Wuhan, China, should avoid contact with sick people, animals (alive or dead), and animal markets.
  • Travelers from Wuhan to the United States, and other countries, may be asked questions about their health and travel history upon arrival.

Employers would be wise to keep abreast of the CDC website updates on this outbreak.  Employers whose employees travel to China for work should take action to notify employees of the health risks, including the latest information from the CDC.  Health services employers who potentially encounter the coronavirus should work with legal counsel to ensure that they have made proper notifications to public health authorities and have appropriately trained and protected their employees from occupational exposures.  If employees are exposed there may be legal implications under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and state workers compensation laws.

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, Workplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

By Brent I. ClarkJames L. Curtis, Mark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Federal Occupational Safety and Health Administration (OSHA) has cited Florida Roofing Experts Inc. – a Jacksonville, Florida, roofing contractor, for failing to protect workers from falls at two work sites, with proposed penalties totaling $1,007,717.00.

OSHA initiated the inspections after receiving complaints of employees performing residential re-roofing activities without fall protection.  “Given the employer’s extensive history of violations, pursuant to OSHA’s egregious citation policy, the agency issued eight willful citations for failing to protect employees from fall hazards.”  OSHA Regional Administrator Kurt Petermeyer explained that “the employer continues to allow employees to work without fall protection, and has made no reasonable effort to eliminate the risk.”  “This employer has an extensive OSHA history with willful, serious, and repeat violations that has demonstrated an egregious disregard for the safety of their workers.”

In addition to the egregious citations, OSHA has placed the company on the Agency’s Severe Violator Enforcement Program list, due to high-gravity willful, egregious violations related to fall hazards.  For instance, OSHA had investigated the company and its predecessor, “19 times within the last seven years, resulting in 42 citations related to improper fall protection, ladder use, and eye protection.”

This case illustrates the need for employers to maintain and enforce safety programs, particularly with regard to key safety hazards and frequently cited regulations like fall protection in construction.  Employers should appeal defensible citations to minimize repeat liabilities and the potential for severe reputational harm.

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