By Joshua M. Henderson

Seyfarth Synopsis: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.

The Facts

A water heater explosion at Solus Industrial Innovations, Inc. left two employees dead. After an investigation, the Division of Occupational Safety and Health issued five citations against Solus for alleged violations of Cal/OSHA regulations. Solus appealed the citations to the Cal/OSHA Appeals Board.

Meanwhile, the California Bureau of Investigations (BOI) conducted a separate investigation, as it must when an employee is killed at work. The BOI forwarded its investigation results to the Orange County district attorney (DA), who then filed criminal charges against the plant manager and maintenance supervisor for felony violations of the Labor Code.

The DA also filed a civil action against Solus, claiming that Solus had violated California’s Unfair Competition Law (UCL) and Fair Advertising Law (FAL). These claims alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices, while also committing false advertising by making “numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,” which allowed it to attract and retain customers and employees.

Solus demurred to the DA’s lawsuit, which was overruled. On an expedited appeal, the Court of Appeal ruled in favor of Solus. The Court of Appeal reasoned that the federal Occupational Safety and Health Act (OSHA) preempted UCL and FAL claims arising from alleged Cal/OSHA violations. The DA sought review by the California Supreme Court.

The Supreme Court’s Decision

A unanimous California Supreme Court reversed. The Court held that federal OSHA did not preempt the DA’s civil action against Solus. Rather, California law preempted federal OSHA—a sort of reverse preemption.

Understanding the Supreme Court’s holding requires a brief summary of federal OSHA’s relationship with Cal/OSHA. Federal OSHA occupies the field of workplace safety and health, but permits states to create their own regulatory plans subject to federal review and approval. California has had such a federally approved state plan since 1973. Under this system, federal OSHA provides a regulatory “floor” under which state plans may not fall. But states may enact broader workplace safety protection than found under federal OSHA.

The Supreme Court rejected Solus’s argument that federal law explicitly or impliedly preempted California law except for provisions of the federally approved state plan. Federal OSHA identifies specific areas (such as workers’ compensation laws) that are not preempted. Yet it does not identify precisely what is preempted. According to the Supreme Court, federal OSHA, by allowing states to provide broader protections, anticipates that states may use enforcement mechanisms other than administrative litigation under the state plans to further their aims. Civil litigation under state law, according to the Court, is not foreclosed by the federal statutory scheme.

The Supreme Court noted that UCL and FAL actions may be brought by both government officials and by persons who have suffered an “injury in fact.”

What Solus Means For Employers

While California law (specifically, the Private Attorneys General Act (PAGA)) previously has allowed claims against employers based on alleged workplace safety violations, PAGA poses several obstacles to ultimate recovery, including exhaustion of administrative remedies and, for some alleged violations, allowing an employer thirty-three days to cure the violations.

Those obstacles do not exist for would-be plaintiffs in UCL and FAL litigation. Accordingly, Solus may result in a spike in workplace safety and health litigation against employers, for several reasons. First, Solus does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. Indeed, though the Division had filed citations against Solus, the case was put on hold. During a BOI investigation and any ensuing prosecution, litigation between the Division and an employer concerning administrative citations is held in abeyance. This point raises the possibility that an employer may defeat Division citations and criminal charges, yet still be subject to civil claims.

Second, nothing in the California Supreme Court’s decision suggests that administrative citations are a prerequisite to filing a UCL or FAL claim. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division. By contrast, PAGA requires notice to the Division, along with “the facts and theories to support the alleged violation.” Although damages are not available under the UCL, restitution and injunctive relief are. An employee must prove some kind of economic injury in these cases, which may make it more difficult to recover restitution, but may lead to injunctions against employers.

Third, while the Division has six months to issue a citation, the statute of limitations is four years for a UCL claim and three years for a FAL claim. Therefore, the “repose” promised by a six-month administrative limitations period may be shattered by an employee civil action filed long thereafter.

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

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Continuing the fight over the Obama-era Waters of the United States (WOTUS) Rule, the Natural Resources Defense Council, Inc., the National Wildlife Federation, and a host of states, including New York and California have brought lawsuits against the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) in response to their final rule to delay the applicability date for the WOTUS Rule.  States of New York et al. v. USEPA and Corps (State Litigation), No. 18-cv-1030 (S.D. NY February 6, 2018), and NRDC v USEPA and Corps (Association Litigation), No 18-cv-1048 (S.D. NY February 6, 2018).

As we noted in previous blogs, the WOTUS rulemaking has been fraught with controversy and has generated well over 1-million public comments. In the most recent chapter of this ongoing saga, the Agencies adopted an applicability rule to extend the applicability date of the 2015 WOTUS Rule to February 6, 2020. USEPA claimed that the extension “provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.” The Plaintiffs refer to this extension as “the Suspension Rule.”

The State Litigation seeks “a declaration that the Suspension Rule is unlawful and an order vacating it” as well as a declaration that the Agencies’ action was arbitrary and capricious. The States argue, among other things, that the Clean Water Act does not give the Agencies authority to suspend a Rule when it has already become effective.

The Association Litigation seeks a ruling that “the suspension of the Clean Water Rule for two years is…‘arbitrary,’ ‘capricious,’ an ‘abuse of discretion,’ and ‘not in accordance with law’ under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).” Additionally, the Associations seek a ruling that “the suspension of the Clean Water Rule for two years was…promulgated in violation of the Due Process Clause of the U.S. Constitution, and was ‘without observance of procedure required by law’ and ‘contrary to constitutional right’ in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(B), (D).”

We will keep you up to date as to the progression of the litigation and any important briefing or rulings that come out of it.

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

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency’s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment.  It is seeking public comments.

Marijuana/Cannabis Industry Rulemaking

The advisory meeting on the DOSH Marijuana/Cannabis Industry Rulemaking was to “consider … whether specific requirements are needed to address exposure to second-hand marijuana smoke by employees at facilities where on-site consumption of marijuana is permitted under B&P Code section 26200(d), and whether specific requirements are needed to address the potential risks of combustion, inhalation, armed robberies, or repetitive strain injuries.” Public commenting is open. The advisory committee must present its finding and recommendations to the Standards Board by October 1, 2018, at which point the Board render a decision regarding whether to adopt the marijuana/cannabis standards.

Heat Illness Prevention in Indoor Places of Employment

The advisory meeting on the DOSH Heat Illness Prevention in Indoor Places of Employment was to “develop a proposed regulation for minimizing heat-related illness among workers in indoor places of employment.”  At the meeting, the public had an opportunity to provide input on a revised discussion draft developed in consideration of the comments received on a previous discussion draft. A side-by-side comparison table is provided along with options for an Amended Section 3395 (Option A) or Creating Standalone Indoor Standard (Option B).

The Cal/OSHA Advisory Committees are currently accepting comments on both of these topics.

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

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held an advisory meeting on the Agency’s draft rules for Workplace Violence Prevention in General Industry.  It is seeking public comments.

The meeting was to seek input on the new draft proposal to address workplace violence in general industry. If adopted, California would become the first state to issue general industry workplace violence rules. Currently, Cal/OSHA can only regulate workplace violence hazards through its “general duty clause” which provides that employers have a general duty to keep their workplaces safe from recognized hazards.

The December 4, 2017 draft proposed rules defines “workplace violence” as “any act of violence or threat of violence that occurs at the work site.”  Specifically under the proposal workplace violence includes:

  1. The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury.
  2. An incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.
  3. Four types of violence:

Type 1 violence means workplace violence committed by a person who has no legitimate business at the work site, and includes violent acts by anyone who enters the workplace with the intent to commit a crime.

Type 2 violence means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.

Type 3 violence means workplace violence against an employee by a present or former employee, supervisor, or manager.

Type 4 violence means workplace violence committed in the workplace by someone who does not work there, but has or is known to have had a personal relationship with an employee.

The proposal would require covered employers to develop a Workplace Violence Prevention Plan that includes procedures for:

  1. Obtain the active involvement of employees and their representatives in developing and implementing the Plan, including their participation in identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents.
  2. Methods the employer will use to coordinate implementation of the Plan with other employers whose employees work in same workplace, where applicable.
  3. Effective procedures for the employer to accept and respond to reports of workplace violence, including Type 3 violence, and to prohibit retaliation against an employee who makes such a report.
  4. Procedures to develop and provide the training.
  5. Procedures to identify and evaluate workplace violence hazards.
  6. Procedures to correct workplace violence hazards in a timely manner.
  7. Procedures for post-injury response and investigation.

The Cal/OSHA Advisory Committee is currently accepting comments on the topic.

Note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and will be required, by April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.

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

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) finalized a rule moving the applicability date to the Obama-era Waters of the United States (WOTUS) rule to February 6, 2020, two years in the future. 83 Fed. Reg. 5200 (Feb. 6, 2018).

The WOTUS rulemaking has been frought with controversy and has generated well over 1-million public comments.

We have previously blogged on the WOTUS rulemaking. See Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The now-final applicability rule extends the applicability date of the Obama-era 2015 WOTUS Rule to February 6, 2020, two years beyond today’s publication of the final rule in the Federal Register. USEPA claims that this extension “provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.”

USEPA also reiterated that the applicability rule is separate from the ongoing two-step process the Agencies are currently undertaking to reconsider and potentially revise the 2015 WOTUS Rule. The comment period for Step 1 of the reconsideration closed in September, 2017, receiving just under 700,000 comments. Meanwhile, the agencies are still reviewing the 1.1+ million comments received from the public for the 2015 Obama-era WOTUS Rule. USEPA and the Corps are also in the process of holding “listening sessions” with stakeholders to assist the Agencies in developing a proposed Step 2 rule that would again revise the definition of “waters of the United States.”

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

By Jeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.

On January 25, 2018, Associate Attorney General Rachel Brand released an Department memo “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (“Brand Memo”), directed to the Heads of Civil Litigating Components within the USDOJ directing that the Department no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.

The USDOJ, (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated regulatory requirements, not agency guidance documents or policies. The practice of agencies, such as EPA, pursuing enforcement actions against companies who have failed to comply with “guidance” has long been a concern of the regulated community and their defense counsel; we frequently challenge and object to EPA’s efforts to enforce “guidance” that has not gone through public notice ad comment rulemaking. It is a relief that the USDOJ will no longer be a party to such enforcement cases.

The Brand Memo is a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (“Guidance Policy” or “Sessions Memo”), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

The Brand Memo states that “…consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.” “Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking.”

Under the USDOJ’s new policy, USDOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”The Brand Memo also indicates that “the Guidance Policy . . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the USDOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applies only to future affirmative civil enforcement actions brought by the Department, as well as, “wherever practicable,” those matters pending as of January 25, 2018, we see the Guidance Policy and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

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

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

Seyfarth Synopsis:  In a guidance document issued last week, U.S. EPA sets out to deliberately move environmental enforcement responsibilities back to the states. While this may, to local interests, represent a noble purpose, few states are manned and ready to take on additional responsibilities.

In yet another move providing relief to industry from federal enforcement, the EPA Office of Enforcement and Compliance Assurance (OECA) last week issued an Interim Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States (January 22, 2018) (Guidance).

The Guidance, issued by OECA Assistant Administrator Susan Parker Bodine to Regional Administrators, suggests, with respect to enforcement cases,  a more collaborative partnership between the EPA and states with authorized environmental programs.  It applies to all EPA compliance assurance activities, and Bodine anticipates it will  “develop principles and best practices for State and EPA collaboration in inspections and enforcement, work planning and implementation, National Enforcement Initiatives, and outcome and performance measurement.”

The Guidance sets out the expectation that EPA Regional Offices and their respective states will henceforth work together to achieve environmental compliance rather than EPA repeatedly auditing state level efforts (or from the standpoint of regulated industry, interfering with them).  The Guidance calls for the Region and State to discuss and share information including lists of planned inspections as well as an understanding concerning when a facility will be informed of an inspection in advance.  For any planned program audits, “EPA findings should be considered preliminary until the State has had an opportunity to review and respond.”  Except in emergency situations, EPA aims to allow states to address a deficiency prior to being subject to enforcement action.

Under the Guidance, EPA recognizes that States are given “primacy” in authorized programs.  “With respect to inspections and enforcement, EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs….”  EPA expects to “step in”,  in limited circumstances where actions require specialized EPA equipment and/or expertise, or where noncompliance issues need to be tackled at an interstate level.  Generally, “the Region should defer to the State except where the EPA believes that some EPA involvement is warranted.”

While the notion of cooperative federalism grants states leeway to decide how best to enforce environmental programs, allowing them to consider the unique circumstances and stakeholder interests in their state, the reality is the Guidance places a heavy burden on states to take on more responsibilities while dealing with their own budgetary constraints.  “Cooperative federalism” presumes states have adequate financial support to implement complex environmental requirements.

OECA expects to evaluate the success of the Guidance by requesting that Regions provide a progress report by September 28, 2018.  Unless the new approach is coupled with adequate financial support from the federal government to assist states in implementing complex and broad federal requirements, the collaborative partnership that the Guidance aims to achieve may be strained from inception.

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

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

Seyfarth Synopsis: In another example of business-friendly regulatory agency actions, the U.S. Environmental Protection Agency has just rescinded the “Seitz Memo” associated with the “Once In, Always In” policy affecting the classification of certain major sources of hazardous air pollutants under section 112 of the Clean Air Act.  Memorandum: Reclassification of Major Sources as Area Sources under Section 112 of the Clean Air Act, William L. Wehrum, Assistant Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency (January 25, 2018) (Reclassification Memo).

As noted by Bill Wehrum, Assistant Administrator of EPA’s Office of Air and Radiation, this action “will reduce regulatory burden for industries and the states, while continuing to ensure stringent and effective controls on hazardous air pollutants.”

Under the Clean Air Act, a “major source” is a source that emits, or has the potential to emit, 10 tons per year of a single hazardous air pollutant (“HAP”) or 25 tons per year of a combination of HAPs.  An “area source” is any stationary source that is not a “major source.”  Major sources are subject to different requirements than area sources, including major source MACT standards that can be complex and expensive for industry. For this reason, historically, sources have tried to limit their HAP emissions to avoid being characterized as a major source.

To provide guidance to companies struggling to meet deadlines to prove they were not a major source, in 1995, the Agency published its “Potential to Emit for MACT Standards – Guidance on Timing Issues” (Seitz Memo), which publicized an Agency policy commonly known as “Once In, Always In” (the “OIAI policy”).  The OIAI policy provides that facilities subject to major source standards as of the compliance date were permanently locked in to the major source standard, and could never “go back” to being regulated as a non-major or area source.

The OIAI policy was viewed by industry as unfair for a number of reasons, including that the policy was a disincentive to reduce HAP emissions; even if a major source facility reduced emissions to non-major source levels, the facility was still subject to often onerous major source requirements, so there was no incentive to reduce HAP emissions to non-major source levels. Further, if a company failed to notify U.S. EPA by the applicable MACT standard compliance date that it was not a major source, U.S. EPA used the OIAI policy to regulate that facility forever as a major source, even if HAP emissions were well below major source levels.

The January 2018 Reclassification Memo withdraws the old OIAI policy, effective immediately.  U.S. EPA determined that the OIAI policy articulated in the Seitz Memo is contrary to the plain language of the CAA and thus, under the Reclassification Memo, major sources can at any time choose to limit emissions and obtain “area source” status. This change in regulatory policy will allow previously categorized a major sources of HAP emissions to become area sources at any time by limiting their potential to emit HAPs under the major source thresholds.

For the regulated community, what this means is that if a major source takes an enforceable limit on its potential to emit, and takes measures to bring its HAP emissions below the applicable threshold, it may become an area source.  That source, now having area source status, will not be subject to requirements applicable to the source as a major source under CAA section 112, including, in particular, major source MACT standards that are often very burdensome. In terms of controls, monitoring, and recordkeeping and reporting, it is hoped this significant change in policy will now incentivize facilities to undertake HAP emission reduction projects to become a non-major source, which will in turn reduce air pollution.

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

By Joshua M. Henderson

Seyfarth Synopsis:  This past week, the Cal/OSHA Standards Board approved a new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.”

This new regulation–“Hotel Housekeeping Musculoskeletal Injury Prevention”–is intended to address a workplace hazard confronted by housekeepers, namely, a “musculoskeletal injury,” which is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.” The regulation was petitioned for by the labor union UNITE HERE and contains several union-friendly provisions. Before it can take effect, the regulation must pass the review and approval of the Office of Administrative Law to assure compliance with certain procedural rules. Once approved, the regulation should take effect in the next few months.

Currently, most California employers (including hotels) are required to have a written Injury and Illness Prevention Plan, which must include provisions related to health and safety training, identification and abatement of workplace hazards, and procedures for reporting unsafe working conditions. The new regulation imposes requirements for hotels above and beyond an IIPP:

  • Hotel employers must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  • The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  • Within three months of the effective date of the regulation, hotels must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  • The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  • Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

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

By Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities.  The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.

By industry or workplace, BLS found that work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 40 percent of all industries.  Workplace violence and other injuries by persons or animals increased 23 percent, becoming the “second-most common work related fatal event in 2016.” For more information about workplace violence we have frequently blogged on the topic.  See for instance, Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know, OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence, Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers.

In addition, exposure to harmful substances or environments rose 22 percent.  “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since Census of Fatal Occupational Injuries (CFOI) began reporting data in 1992.”

Stunnningly, overdoses from the non-medical use of drugs or alcohol while on the job increased from 73 in 2011 to 217 in 2016. “Overdose fatalities have increased by at least 25 percent annually since 2012.”  Fatal injuries in the leisure and hospitality sector were up 32 percent and reached an “all-time series high in 2016.”  BLS concluded that this was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry.

Occupations with increases greater than 10 percent in the number of fatal work injuries in 2016 include:

  • Food preparation and serving related occupations (64 percent);
  • Installation, maintenance, and repair occupations (20 percent);
  • Building and grounds cleaning and maintenance occupations (14 percent); and
  • Sales and related occupations (11 percent).

Foreign-born workers made up about one-fifth of the total fatal work injuries. Thirty-seven percent of the workers were born in Mexico, followed by 19 percent from Asian countries.  Workers age 55 years and over had a higher fatality rate than other age group.

In response to the BLS Report, Loren Sweatt, Deputy Assistant Secretary for OSHA, commented that “[a]s President Trump recognized by declaring opioid abuse a Nationwide Public Health Emergency, the nation’s opioid crisis is impacting Americans every day at home and, as this data demonstrates, increasingly on the job.”  “The Department of Labor will work with public and private stakeholders to help eradicate the opioid crisis as a deadly and growing workplace issue.”

Employers in the industries identified in the CFOI Report, including oil and gas, construction, retail, mining, and others need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to ensure that company safety and health policies and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

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.