By Jeryl L. Olson and Andrew H. Perellis

Seyfarth Synopsis: USEPA published an Interpretive Statement (dated April 12, 2019), which according to the Agency “clarifies” that releases of pollutants to groundwater from a point source are “categorically excluded” from Clean Water Act National Pollutant Discharge Elimination System (NPDES) permitting requirements. 

According to the Agency, the exclusion applies regardless of whether the groundwater is hydrologically connected to surface waters. The Interpretative Statement has been widely published; it appears on the USEPA website, in a pre-publication version of the Federal Register Notice, in the actual Interpretive Statement, and in a “Fact Sheet.”

While on its face the Interpretive Statement sounds definitive, it is anything but.

First, states are primarily responsible for discharges to groundwater, and EPA’s Interpretive Statement may not apply in some states; according to USEPA, it is therefore is intended to “guide” states and EPA regions with respect to NPDES permitting of discharges to groundwater.

Second, the Interpretive Statement only applies outside of the Fourth Circuit (i.e., Eastern states including Maryland, West Virginia, Virginia, North Carolina, and South Carolina), and outside the Ninth Circuit (i.e., Western states including Washington, Montana, Oregon, Idaho, Nevada, California and Arizona).  That is, EPA’s Interpretive Statement that point source discharges to groundwater are to be excluded from NPDES permitting requirements,  do not apply in the Fourth or Ninth Circuits.

Third, the Interpretive Statement limits itself as follows:  “… it neither alters legal rights or obligations nor changes or creates law.” 

Finally, although the Interpretive Statement applies to  Clean Water Act NPDES permitting requirements for discharges to groundwater, USEPA has indicated will continue to protect groundwater and hydrologically connected surface waters through the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response Compensation and Liability Act.

In short, while on its face the Interpretive Statement appears to resolve the issue of NPDES permitting for discharges to groundwater, its utility may be somewhat limited, and USEPA is soliciting public input as to whether further clarity and regulatory certainly is necessary with respect to this issue. While it has practical limitations, the Statement does analyze myriad prior Agency statements addressing the issue, and analyzes, as seen above, the split in the federal circuit courts regarding NPDES permitting for releases of pollutants to groundwater that reach jurisdictional surface waters.

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 James L. CurtisBenjamin D. Briggs, Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  The DOL Inspector General recently issued an audit report that “OSHA Procedures for Issuing Guidance Were Not Adequate and Mostly Not Followed,” Report No. 02-19-001-10-105 (March 28, 2019).

The federal Occupational Safety and Health Administration (OSHA) regularly issues Standard Interpretations, Memoranda, and Safety and Health Information Bulletins to explain its positions with regard to the enforcement of safety regulations and unregulated hazards.  These documents are not controlling authority nor do they have the force of law, but they can be used by OSHA to show that an employer in an industry should have knowledge of a particular hazard, and/or demonstrate OSHA’s view of what is necessary for compliance.

The Department of Labor Office of Inspector General (OIG) recently conducted a comprehensive review of OSHA guidance documents issued from October 1, 2013 through March 18, 2016, some 296 guidance documents.  The OIG reviewed OSHA’s internal controls using a “random sample” of 57 guidance documents.  The OIG also reviewed stakeholder challenges to four OSHA guidance documents and relevant court decisions issued through April 25, 2017.

Through its investigation, the OIG found that “OSHA did not establish adequate procedures for issuing guidance,” and that “those procedures that were established were mostly not followed.”  While OSHA had procedures to provide reasonable assurance that guidance accurately reflected its rules and policies, it “lacked a procedure to determine the appropriateness of issuing a document as guidance, rather than as a rule.”  OIG determined that OSHA did not follow procedures for 80 percent of the sampled guidance.  Procedures OSHA often failed to follow included “determining if guidance was consistent with OSHA rules,” considering the reception of the guidance by stakeholders, and obtaining official approval to issue the guidance.

According to the OIG, “OSHA agreed that significant lapses occurred in the guidance issuance process, and it is working to rectify its existing procedures.”

Given this investigation, employers may be able to challenge OSHA’s reliance on guidance documents used to support aggressive interpretations of regulations and General Duty Clause citations.  This is another development in the ongoing debate between employers and OSHA on the use of guidance rather than promulgating rules in accordance with the Administrative Procedures Act.

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.

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

Seyfarth SynopsisCintas Corporation has recently become the first company to reach 100 sites with OSHA’s Voluntary Protection Program (VPP) (Program) Star certification.

OSHA’s Voluntary Protection Program recognizes employers and workers in the private industry and federal agencies who have “implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.”  While in the Program, company “management, labor, and OSHA work cooperatively and proactively to prevent fatalities, injuries, and illnesses through a system focused on: hazard prevention and control; worksite analysis; training; and management commitment and worker involvement.”

The authority for the VPP is Section (2)(b)(1) of the Occupational Safety and Health Act of 1970, which declares the Congress’s intent “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources – by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions.”  See All About VPP.

To participate in the Program, employers must submit an “application to OSHA and undergo a rigorous onsite evaluation by a team of safety and health professionals.  Union support is required for applicants represented by a bargaining unit.  VPP participants are re-evaluated every three to five years to remain in the programs.  VPP participants are exempt from OSHA programmed inspections while they maintain their VPP status.”

Concerning the Program, OSHA shares that “by participating in OSHA’s Voluntary Protection Programs … many employers have improved their workplace safety and health management systems and implemented activities or procedures that have produced outstanding results and contributed to improved safety and health for workers.  The VPP has a 20+ year history, and the average VPP worksite has a Days Away Restricted or Transferred (DART) case rate that is 52% below the average for its industry.”  OSHA suggests that VPP participation can also “lead to lower employee turnover and increased productivity and cost savings.”

Cintas Corporation has recently become the first company to reach 100 sites with VPP Star certification from OSHA.  As noted in the Industrial Safety & Hygiene News, the Company’s “Dayton, Ohio location became its 100th VPP location in early 2019.  “Safety is woven into the DNA of Cintas’ culture, and we are extremely proud of this accomplishment,” Scott Farmer, Cintas Chairman and CEO, was quoted saying that “nearly 45,000 Cintas employee-partners across the country go to work every day, and it is our mission to make sure everyone goes home safe.” “Safety is woven into the DNA of Cintas’ culture, and we are extremely proud of this accomplishment.”

The Occupational Health & Safety Magazine also recently noted that the Indiana Department of Labor announced that all of Cintas’s sixteen sites in Indiana had achieved Star status in the state’s Voluntary Protection Program.  “Cintas Corporation’s achievement is extraordinary, unmatched by any other Hoosier company, and has taken many years to accomplish,” said Indiana Department of Labor Commissioner Rick Ruble.  “We applaud Cintas for its exceptional commitment to protecting workers, not just in the Hoosier state, but across the country.”

It is notable that Dr. David Michaels and previous OSHA officials in the Obama Administration took a negative outlook to the VPP, tried to eliminate VPP funding, and curtailed new employers and worksites from joining.  Therefore, any employers that may have an interest in making a VPP Program application may wish to act while the Agency and political climate advance the Program.

For more information on the VPP Program 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, IIScott M. Nelson, and Adam R. Young

Seyfarth SynopsisSince it codified the Multi-Employer Worksite Doctrine twenty years ago, OSHA has routinely cited multiple employers at the same worksite for the same violations.  The Multi-Employer Worksite Doctrine has allowed OSHA to extend liability to general contractors, host employers, staffing agencies, and anyone else who can be conceivably related to an employee accident or alleged safety hazard. 

Now, in Secretary of Labor v. Suncor Energy (U.S.A.) Inc., OSHRC Docket No. 13-0900, the Commission issued a significant decision reining in OSHA’s “scattershot approach” to cite all employers at a worksite.  The Commission held that OSHA had misused the doctrine as a form of strict lability against “controlling employers” who had performed their high-level duties with regard to safety.  Moving forward, OSHA will be required to hold the controlling employer liable only based on objectively reasonable evidence that the employer failed to meet its more limited duty of care.  Further, this decision will help guide employers in how to avoid multi-employer worksite and “controlling employer” liability going forward, and provide some solace that a rigorous safety program and efforts to promote employee safety will not be in vain and be used improperly against the employer by OSHA.

Multi-Employer Worksite Doctrine

With its Multi-Employer Citation Policy in 1999, federal OSHA codified its Multi-Employer Worksite Doctrine which allows the Agency to cite several employers for alleged violation at the same worksite.  Multi-employer worksites exist where there are a number of employers at the same worksite. Multi-employer worksites exist in construction and in general industry.

OSHA’s method of enforcement had created a type of “strict liability” for accidents, where any employer with a conceivable role in the worksite will be cited.  It is part of the “shoot first, ask questions later” approach that many OSHA compliance officers unfortunately appear to employ instead of conducting a reasonable and appropriate investigation and which the Review Commission criticized.

Moreover, this approach is contrary to the critical element of a federal OSHA citation which requires employer knowledge of the alleged violation: an employer needs to know or should have known of a violative condition to be cited by OSHA.  Finally, this overbroad approach leaves employers unable to reasonably determine their compliance responsibilities under the Act.  Employers may be deterred from involving themselves at the worksite, conducting inspections, or maintaining a rigorous safety program, for fear of being labeled by inference as an “employer” of any individual who sets foot on a worksite.

Facts of Suncor Case

Suncor operated a massive refinery complex, covering 230 acres and three separate plants. In the fall 2012, Suncor engaged in several capital improvement projects at the refinery.  One of the capital projects involved replacing the tubes in a heater, a permit-required confined space.  The work on this heater was performed by several third-party specialty contractors, including a company called Mistras.

To perform work inside the heater, Suncor required each contractor first to obtain a “safe work permit” from Suncor’s operations division. The contractor had to initiate and generate the permit on Suncor’s computerized system. The permit was then electronically transferred to Suncor’s operations division, where Suncor’s turnaround coordinator and confined space supervisor would review and approve it.

After obtaining the safe work permit from Suncor and before starting work, a crew from Mistras performed a job safety analysis, which identified a potential fall hazard from an elevated surface and stated the need for fall protection and a harness. The two Mistras employees assigned to examine welds in the area entered the area wearing harnesses, but neither employee used a lanyard, yo-yo, or any other fall-restraining device. A third Mistras employee served as primary confined space attendant.  Once inside, one Mistras employee inspected welds from an outrigger platform which did not have guardrails.  After approximately two to three hours of work, the employee fell off the platform through a gap between scaffolding and the wall of the heater, landing on the ground 25 feet below.  The unfortunate accident resulted in severe injuries to the employee.

Under the fall protection in construction standard, section 1926.451(g)(1), states in relevant part: “Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be protected from falling to that lower level.”  OSHA issued a Citation under this regulation to Suncor, alleging that the “the Company did not ensure that [Mistras’s] employees were protected from falling while working on a tubular welded system scaffold.”

The Secretary asserted that Suncor was liable under the Multi-Employer Worksite Doctrine as a “controlling employer” at the refinery because it had general supervisory authority over its contractors and controlled their access to the inside of tube area through its permit system.  Accordingly, the Judge found that Suncor violated the Act by failing to ensure that the Mistras employee wore fall protection. To reach that conclusion, the Judge reasoned that Suncor failed to exercise reasonable care because it did not make use of various opportunities “to become aware of [the violative condition] and prevent the accident[],” and therefore “should have known of the violative condition.”

Commission’s Reversal and Decision

Suncor challenged the decision, alleging that the Secretary failed to establish that Suncor had constructive knowledge of the violative condition as a controlling employer on a multi-employer worksite.  The Commission ruled that the Judge’s approach had been misguided, focusing on whether Suncor knew of the lack of guard rails on the platform rather than whether Mistras was using fall protection equipment, the focus of the regulation.  The Commission performed an analysis of whether the controlling employer has met its duty to exercise reasonable care, analyzing several factors related to the alleged violative condition itself and those that related to the employer’s duty to monitor or inspect.

The Commission found no basis to conclude that Suncor should have known of the Mistras employee’s failure to use personal fall protection. The Commission examined Suncor’s duty given its “secondary safety role” as a host employer and in light of objective factors—the nature of the work, the scale of the project, and the safety history and experience of the contractors involved.  The Judge found that Suncor could rely on Mistras to perform job safety analysis and determine where fall protection is needed, and then require its employees to use the fall protection they wear.  The Commission merely required Suncor to “exercise reasonable care” as the host employer, which meant that it was not obligated to inspect inside every confined space on its worksite and do an independent analysis before assigning work to contractors.

The Commission excoriated the Secretary of labor’s “scattershot approach” with this citation, citing the host employer where it had a rigorous safety program in place.  Further, the Commission made clear that the host employer is “not required to inspect the worksite as intensively as an employer whose own employees are exposed.”  The Commission explained that applying the Multi-Employer Worksite Doctrine to Suncor was not  fair.  The decision states: “to in effect hold controlling employers strictly liable for the safety shortcomings of their contractors is both unfair and counter-productive.” (emphasis added).  Finally, the Commission explained that the citation “should not have been issued in the first place” and that the Secretary’s choice to litigate “diverted resources away” from employee safety and health.

Employer Takeaways

The Commission’s message in this case is pointed and important — host employers who maintain a rigorous safety and health program will not be held to the same duty of care and inquiry as their specialty subcontractors.  Host employers (and general contractors) will not be required to independently assess and supervise all third party contractor work.  The Commission’s ruling thereby provides cover for employers to do the things that help improve employee safety — their use of a safety program and review of third party work will not make them strictly liability for any violations of that third party contractor.

Employers should take an active approach to safety and enforce a rigorous program that protects employees.  Employers should craft their agreements with subcontractors or independent contractors carefully, to minimize their OSHA and tort liabilities.  If OSHA opens an inspection on a multi-employer worksite, employers should promptly contact outside counsel to preserve privileges, defend the inspection, and prevent the issuance of OSHA citations.

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

By Mark A. Lies, II, Brent I. Clark Adam R. YoungPatrick D. Joyce, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  In recent decisions—including Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC Mar. 4, 2019)—the Occupational Safety and Health Review Commission (OSHRC) has upheld violations of the General Duty Clause where employers failed to adequately address workplace violence hazards.

With increased attention to high profile active shooter incidents, workplace violence is an increasingly pressing issue for employers across industries.  Workplace violence can come in many forms and can be caused by employees, clients or customers, and even members of the public with no connection to the workplace.  Federal and state regulators have taken action to address workplace violence.  We have recently blogged on CalOSHA’s new Workplace Violence in Healthcare Standard.

We have also analyzed increasingly aggressive enforcement by federal OSHA against employers who suffer workplace violence incidents, particularly under the General Duty clause.  In 2015, we blogged about Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC June 22, 2015) (ALJ) , in which Administrative Law Judge Dennis Phillips upheld OSHA’s General Duty Clause citation for a workplace violence hazard.  The employer provided in-home health care and social services to patients in Florida.  A female social services coordinator made progress notes documenting that one of her male clients made her uncomfortable and anxious.  According to OSHA, the employer did not take action in response to these concerns.

On her final visit to the client’s home, the client tragically chased the coordinator off his porch with a knife and stabbed her to death.  OSHA alleged that the Company committed a Serious violation of the General Duty Clause for its failure to “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 a trial, Judge Phillips affirmed the citation, concluding that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, and that the employer failed to provide the employee with information about the medical background of the client, as well as the client’s criminal history.  The employer, according to Judge Phillips, also failed to monitor the employee’s progress notes which identified specific concerns about the client and failed to take affirmative action to assist her when she indicated her continuing anxiety about their interactions.

Integra appealed the decision to the Review Commission, arguing that the hazard at issue—“being physically assaulted by clients with a history of violent behavior”was not a hazard recognized by the employer or the industry and therefore could not substantiate a General Duty citation.

Earlier this month, Judge Phillips’ decision was affirmed by OSHRC, but not without some disagreements between the Commission members on various aspects of the case.  Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC Mar. 4, 2019 ).

In his concurrence, for example, Commissioner Sullivan opined that the “reasonable foreseeability” of a hazard must be an element of the general duty analysis, and in the case of Integra, “the Secretary established that the hazard cited here was reasonably foreseeable to a ‘reasonable employer’ presented with the specific facts and circumstances in this case.”  And Commission Chairman MacDougall, while agreeing on the cognizable hazard issue, warned, “[T]he Secretary’s proclivity to overreach in his application of the general duty clause not only runs afoul of the prohibitions against holding employers liable for ill-defined hazards that cannot be controlled, it also stands in stark contrast to the unmistakable Congressional preference in the overall structure of the Act for specific standards.”

Nonetheless, this case illustrates the increasingly close eye OSHA is placing on workplace violence and the challenges facing employees in healthcare and other industries.  However, the general nature of the duty and the methods to abate workplace violence hazards are still evolving, and if Integra’s appeal from Judge Phillips’ decision and the concurring opinions of Commissioners MacDougall and Sullivan are any indicia, there are still legal battles to be fought over the reach and scope of the General Duty Clause in the healthcare and social services industries.  Integra still has time to appeal OSHRC’s decision to the U.S. Court of Appeals.

Under Integra, employers have been assigned a duty to take action when confronted with concerns about workplace violence from their employees.  Employers should develop written workplace violence prevention plans, and work with outside counsel to proactively address any abnormal behavior, threats, or violent incidents that occur in the 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 or the Workplace Counseling & Solutions Team.

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

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its Behind the Wheel at Work Newsletter with the “latest news from the NIOSH Center for Motor Vehicle Safety.”   

We have blogged previously that NIOSH, in its Science Blog, has related that vehicle crashes are a leading cause of occupational fatalities, with “1,252 deaths of vehicle drivers and passengers on public roads in 2016. In 2013, on-the-job crashes cost employers over $25 billion and led to 155,000 lost work days.”

The NIOSH Newsletter links to the presentation by Kyla Retzer, Assistant Coordinator of the NIOSH Center for Motor Vehicle Safety, which offers “components of a good road safety program” in a recent video from the 2019 International Association of Drilling Contractors Safety, Environment & Training Conference & Exhibition.

The Newsletter also offers an outline for how an employer’s top-level managers need to “commit to motor vehicle safety.”  NIOSH stated that “it’s not just a matter of sending an encouraging email to drivers and hoping that things will change.”  NIOSH encourages employers to commit by:

  • Affirming motor vehicle safety as a core company value;
  • Defining motor vehicle roles and expectations for all involved (executives, upper and middle managers, fleet safety professionals, first-line supervisors, and drivers), and holding them accountable;
  • Providing enough staff and resources to run the program; and
  • “Walking the walk:” If executives use their phones while driving or don’t use seat belts, drivers will not comply with company policies that tell them to do something different.

The Newsletter suggested that research shows that commitment to motor vehicle safety by top management was linked to:

  • Safer driving-related behaviors as reported by drivers, including: fewer driving errors, fewer violations of traffic laws or company safety policies; and lower levels of distracted, impaired, and fatigued driving;
  • More positive perceptions of company safety culture among drivers; and
  • Lower rates of worker injuries in motor vehicle crashes.

For employers, it is important to have safety programs in place that protect employees. Those protect employees against employee  injuries, lost income, and finding replacement personnel.  Federal OSHA normally will not open inspections solely relating to motor vehicle crashes in public roads.  However, motor vehicle accidents that occur in construction zones are a different story.  They are regulated by OSHA, and fatalities and serious injuries need to be reported.  Inspections and citations may follow.

Enforcement of compliance safety rules and a strong safety culture are essential to workplace safety and preserving the company’s defenses to an OSHA citation.  As part of an OSHA accident inspection, the Agency likely will review the employer’s policy documents and training materials, and will likely interview the injured employee about her training and understanding of the materials.

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

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

Seyfarth Synopsis: According to several states that have sued the Occupational Safety and Health Administration in Federal Court, the Agency did not provide sufficient justification to rollback the electronic reporting rule for large employers.  Complaint, State of New Jersey, et al., v. Acosta, No. 19-cv-621 (D. DC March 6, 2019).

The complaint, filed by the States of New Jersey, Illinois, Maryland, Massachusetts, Minnesota, and New York, claims that OSHA’s “illegal and unjustified attempt to rollback its requirements for the public reporting of workplace injuries and illnesses—information that allows states to better design enforcement, outreach, and training programs to improve workplace safety, and that enables employees to protect themselves from risks at work.”

The states allege standing to make the claim based on their “quasi-sovereign interest in the health and safety of all their residents.”  The states also argue that “in making this about-face, OSHA failed to provide the sufficient justification that the Administrative Procedure Act (APA) demands.”  The states claim that “OSHA must ‘provide a reasoned explanation’ for its action, which includes ‘show[ing] that there are good reasons for the new policy’,” citing to Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).  “That burden matters especially where the ‘new policy rests upon factual findings that contradict those which underlay its prior policy’.”  Id. at 2126 (quoting Fox Tele. Stations, Inc., 556 U.S. at 515-16).

We have blogged frequently on OSHA’s electronic reporting rule.  See e.g., On And On We Go – Coalition Groups Sue DOL for the Rollback Rule, OSHA Issues New Rule that Companies are Not Required to Submit OSHA 300 and 301 Forms Electronically, California Enacts New Record-Keeping Mandates in Response to Changing Federal ProgramRoller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA 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.

In this latest action, the six states ask for declaratory judgment that the new final rule is unlawful and a re-imposition of all electronic reporting requirements.

We will continue to watch and report on the ongoing machinations over these rules.

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

By Brent I. Clark, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  On our last day, we heard remarks from a panel of ALJs who discussed the discovery process and trial best practices, a panel on safety programs in the 21st Century, and, a panel on updates on the construction industry.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.  Today is the last day of the meeting.

To open the final day, a panel consisting of the Honorable ALJs Phillips, Joys, and Augustine provided tips and tricks regarding pre-trial, trial, and post-trial conduct.  Especially relevant was Judge Phillips’ discussion of discovery best practices and recent ALJ discovery orders, including orders sanctioning parties for using boilerplate objections in their answers to discovery requests.  Judge Augustine discussed effective trial techniques that will provide the Judge with the best picture of the facts of the case.  Judge Augustine also indicated that effective cross examination and thoughtful use of information learned during depositions have the highest impact in his courtroom.  Judge Joys provided helpful tips regarding opening statements and effective written submissions, including pre- and post-trial briefing and proper citation to previous ALJ decisions.  All ALJs discussed the effectiveness of motions in limine and other pretrial motions.

The next panel discussed three significant recent decisions from the OSH Review commission that do not involve the general duty clause: Hensel Phelps Construction, Mar-Jac Poultry, and Triumph Construction.  Panelists included representatives from OSHA, management, and health and safety non-profits.  Hensel Phelps, a 5th Circuit decision issued in November 2018, overturned an OSH Review Commission decision regarding application of OSHA’s “multi-employer worksite” doctrine, which had relied upon a long-standing 1981 5th Circuit decision, Melerine v. Avondale Shipyards, limiting OSH Act liability to “an employer’s own employees.”  Ultimately, the Court vacated Melerine, resulting in application of the multi-employer worksite doctrine in 5th Circuit jurisdictions.  The panel had widely varying views as to the overall impact of the Hensel Phelps decision, but there was consensus that this decision now brought the 5th Circuit in line with other Circuits that have addressed the multi-employer worksite doctrine.

Mar-Jac Poultry, an unpublished case decided in the 11th Circuit, places limitations on OSHA’s ability to expand its inspections beyond the initial reason for conducting the inspection.  Notably, the Court differentiated between a “hazard” and a “violation,” stating that the existence of a hazard does not establish the requisite probable cause of a violation necessary to obtain an administrative warrant that would allow OSHA to expand its inspection.  Again, the panel was divided as to the ultimate impact of the decision, with management applauding the decision’s discussion that the existence of an injury or hazard does not necessarily mean there is an associated violation of the OSH Act.

Triumph Construction, a February 2018 2nd Circuit decision, implicates OSHA’s ability to issue “repeat” violations to employers and the amount of time of the repeat “look-back” period.  Triumph had been cited for a repeat violation based upon a citation that had become a final order approximately five years prior.  At the time of the underlying citation in 2014, the 2009 version of OSHA’s Field Operations Manual (“FOM”) was still effective, and provided for a 3-year look-back period for repeat citations.  Triumph argued that the 3-year look-back period in the 2009 FOM was the limit and OSHA’s use of a 5-year look-back period was unfair.  Ultimately, the Court found that the OSH Act does not contain time limits on how far OSHA can look back to establish a repeat violation and also that the FOM does not create legal rights or duties.  The panel agreed that the impact of this decision is limited and fact-specific and simply applies the OSH Act as written.

Finally, the panel discussed several current cases that are expected to have a significant impact on recordkeeping, reporting, and agency deference.  Several cases challenging OSHA’s 2016 recordkeeping e-reporting rule are expected to be decided in 2019, including a case out of the Northern District of Texas and one out of the Western District of Oklahoma.  In addition, several current cases challenge OSHA’s decision to remove the requirement for employers to e-file their OSHA 300 Logs and 301, therefore limiting e-filings for all employers with greater than 20 employees to the OSHA 300A yearly summary.  The panel also discussed the United States Supreme Court’s grant of certiorari in Kisor v. Wilkie, which raises as its sole issue whether the Court should overturn the concept of “Auer” deference, which provides deference to an agency’s informal interpretation of its own regulation.  Many on the panel believed that the Court will in fact overturn or significantly limit Auer due to Justices Gorsuch and Kavanaugh having previously indicated a desire to remove or limit deference to agency interpretations.

Next, a panel discussed 21st Century updates to traditional health and safety programs.  The panel consisted of representatives from industry, safety consulting, labor, and OSHA.  OSHA reminded employers that it partners with states to provide consultation assistance to small businesses, providing assistance to employers covering approximately 1 million employees in 2018.  The labor representative discussed the use of metrics to prepare and implement effective safety programs.  A representative from industry discussed digital tools that they use to track leading and lagging indicators, allowing for real-time adjustments to safety programs and policies.  Use of these metrics has significantly reduced injuries and illnesses throughout their industry.

Finally, a panel of construction experts including OSHA’s acting director of the Directorate of Construction, an attorney representing management, and an attorney representing labor discussed updates in OSHA’s construction-related regulations, as well as trends in construction enforcement.  OSHA identified three major emphasis areas for 2019 including crane operator certification, trenching and excavation, and the continued implementation of the construction respirable silica rule.  Over 52% of OSHA inspections are conducted at construction worksites, the majority of them involving multi-employer worksites.  Fatalities from falls and trenching failures accounted for nearly 1/3 of construction-related fatalities in 2017.  Four of the top five regulations cited in 2018 involved working at heights or fall protection.  OSHA also reminded employers that the Subpart CC Crane Operator Certification requirements become effective in just over one month, on April 15, 2019.  The attorneys for management and labor disagreed as to the effectiveness of OSHA’s national emphasis programs (“NEP”), including its trench safety NEP.  Management expressed concern at uneven enforcement of trenching regulations while labor expressed approval for the requirements set forth by the NEP.  Finally, the panel discussed implementation of the construction crystalline silica regulation, challenges associated with compliance and enforcement, and lessons learned from the earlier-implemented general industry silica standard.

It has been a great conference, with many significant panels discussing relevant issues and concerns of OSHA, industry, and employees.  We look forward to another year of assisting you and are excited for what is to come.

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

By Brent I. Clark, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  Today we heard remarks from a panel who discussed the general duty clause at length, a panel on safety concerns during emergency response, a panel that discussed the interplay between workers’ compensation, reportability, and recordability, and a panel on issues arising from OSHA inspections.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Continuing on the themes from yesterday’s conference meetings, a panel discussed at length OSHA’s aggressive enforcement of workplace safety issues through the general duty clause as well as recent OSH Review Commission case law questioning OSHA’s broad interpretation of its powers under the general duty clause.

The panel, which consisted of a management, union, and government representatives, emphasized the ideological differences between employers and the government when it comes to 5(a)(1) citations.  Panelists who represented the government and unions insisted that the purpose of the general duty clause is to fill the gaps when a specific standard does not exist.  The management panel, however, stressed that the general duty clause should be used to address unique, specific hazards.  More importantly, the general duty clause should not be used as a replacement for rulemaking of specific standards.

Speaking on recent general duty cases that concerned heat-illness, workplace violence, and grease fires at a restaurant, the panelists discussed common themes.  The management representative stressed that employers must be provided with appropriate notice of what OSHA may consider to be proper abatement.  Specifically, if an abatement method may be inadequate, OSHA should notify the employer of the fact before an accident, rather than afterwards.  The panelist reminded the audience, which included OSHA representatives and Review Commission judges, that the purpose of the general duty clause is to prevent an injury from occurring, rather than punish an employer after an accident occurs.  As such, when one aberrational situation occurs, the employer should not be punished for an abatement method that was otherwise effective in practice.

The government and union representatives strongly disagreed, noting their stated position that an accident does not have to occur for a violation to exist.  Further, when employers implement abatement methods to address issues such as heat-illness or workplace violence, this is evidence that the employer has notice of a hazard and needs to make sure its abatement efforts are effective.

Ultimately, the panel was a microcosm of the attitudes held by employers and the government across the country, and reflected the ongoing ideological differences in interpreting and enforcing the general duty clause between management and OSHA.

We also heard from a panel on the role of safety in emergency response, which included the division counsel from Puerto Rico OSHA, who discussed his personal experience with Hurricanes Irma and Maria.  The Puerto Rican panelist noted that when disaster strikes, it becomes increasingly difficult to reestablish working conditions without creating some workplace risk.  OSHA representatives noted that in such situations it would shift its focus from enforcing the act to providing technical assistance, but retained the right to enforce the act if necessary.

A panel discussed the interplay between recording injuries on OSHA 300 forms, reporting injuries to OSHA, and workers’ compensation.  The panel discussed the intricacies of the OSHA regulations and workers’ compensation laws, including differing definitions and requirements,  and the close analysis required to determine what is required of employers when these three areas collide.  Given the facts of an injury, a universal approach in these three areas may not be appropriate, but rather a thorough review of each regulation is necessary to ensure employers meet their obligations.

Finally, a panel discussed current issues related to conducting inspections including OSHA’s ability to obtain administrative warrants, whether non-employee representatives can be authorized to participate in a walk around inspection, whether non-management employees have the ability to request representation during an interview, and OSHA’s subpoena power and the scope of attorney representation of the subpoenaed employee during the interview. Finally, the panel discussed OSHA’s recent use of drones during inspections, including interaction with FAA regulations and the safety of people on the ground.

More to come from the conference tomorrow…

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

By Brent I. Clark, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  Today we heard remarks from the Solicitor of Labor, OSHA’s Acting Director of the Directorate of Enforcement, and the Occupational Safety and Health Review Commission.  Each panel reiterated the theme of increased OSHA enforcement in the upcoming year, including aggressive enforcement of the general duty clause.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

A common theme among all panelists today is that OSHA is aggressively enforcing workplace safety issues through the general duty clause, including workplace violence issues and heat-related illness.

The Honorable Kate S. O’Scannlain, Solicitor of Labor for the Department of Labor, offered remarks about the Solicitor’s policies and enforcement aims related to the OSH Act.  Ms. O’Scannlain stressed the importance of protecting workers’ rights and ensuring that enforcement resources were used intelligently and strategically.  To that end, Ms. O’Scannlain identified three areas her office would be focused on.  First, the Solicitor’s office will focus on trenching / excavation hazards.  By September, 2019, the agency seeks to increase the number of trench hazards that have been abated.  Second, the Solicitor remains focused on enforcing fall protection of employees.  The Solicitor referenced a recent favorable decision for the government, in which the 8th circuit upheld a $500,000 fine against an employer.  Finally, the Solicitor discussed workplace violence hazards, including the decision two days ago by the Occupational Safety and Health Review Commission in Integra Health Management, Inc. upholding a general duty clause violation of the act when an employer failed to address a workplace violence issue.

We also heard from Patrick Kapust, OSHA’s Acting Director of the Directorate of Enforcement.  Mr. Kapust discussed the new beryllium and silica standards.  Mr. Kapust also spoke on the walking working surfaces standard and OSHA’s effort to draft a compliance directive to aid both employers and compliance staff in interpreting the standard.  The panel further discussed OSHA’s efforts to increase the issuance of citations for employers who do not timely report severe injuries such as hospitalization, amputation, or loss of an eye.  Mr. Kapust reminded the attendees that OSHA’s penalties increased again on January 23, 2019, as a Serious citation is now $13,260 and a Willful/Repeat is $132,598.

In addition, we heard from a panel on whistleblower and retaliation investigations which informed the audience that whistleblower complaints increased by over 25% in 2018.  We also heard from the Occupational Safety and Health Review Commission, where Chairman Heather MacDougall announced her retirement, effective in a few weeks.  The Review Commission panel continued the theme of OSHA increased use of the general duty clause by discussing recent cases that touched upon workplace violence and heat-related illness.  Importantly, the Review Commission indicated that OSHA’s overbroad application of the general duty clause may not be proper, an issue our team has successfully argued in many cases.  The Review Commission also analyzed the recent Angelica Textile Services decision, a case our office successfully litigated before the Review Commission and which made it substantially harder for OSHA to meet its burden in showing a “repeat” violation.

More to come from the conference tomorrow…

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.