By Adam R. Young, Patrick D. Joyce, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: OSHA recently unveiled an online tool allowing the public to access severe injury reports, injury trends over time, geographic trends, and trends specific to each employer.

OSHA’s new Severe Injury Report dashboard allows the public to search and download data by year, industry NAICS code, state, establishment name (i.e., employer), and Occupational Injury and Illness Classification System codes. The dashboard includes information on all severe injuries reported by employers covered under federal OSHA from 2015 through the end of 2023.

OSHA defines a severe injury as “an amputation, in-patient hospitalization, or loss of an eye.”

Image from OSHA.

OSHA’s new dashboard continues its years-long push to obtain compliance by publicly shaming employers and raises concerns about data interpretation and improper use by third parties. Now, for each employer under federal OSHA jurisdiction, any member of the public can see injuries, hospitalizations, and amputations over a 10-year period, including in visual form such as a graph. Requestors will also get national trends and a pie chart of top five events and exposures. Anyone with internet access can search by NAICS code, types of events, and body parts affected to compare Company data to industry data.

This tool provides injury data without contextual information or consideration of other metrics taking employer size and other trends into account – all of which could present a fuller picture of an employer’s total injury rate. We anticipate that third party tracking services will use OSHA’s now publicly-available data to track companies and their alleged injury risks based on only a partial snapshot. The publication of this data further reinforces the importance of accurately reporting injury data, assessing the risk associated with corresponding OSHA citations, and determining how they are best resolved.

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

By Daniel R. Birnbaum, Ilana R. Morady, Benjamin D. Briggs, and Patrick D. Joyce

Seyfarth Synopsis:  Following California’s Workplace Violence Prevention Plan regulation becoming effective, the California Division of Occupational Safety and Health (“Cal/OSHA”) recently published its draft Workplace Violence Prevention regulation.  It is seeking public comments by September 3, 2024, with an advisory committee hearing scheduled for later this year.

As we recently blogged, the State of California implemented one of the largest efforts at requiring employers to implement and enforce workplace violence protections in the country. SB 553, covering nearly every employer in the state, became effective on July 1, 202. As part of the legislation, Cal/OSHA has been ordered to develop a Workplace Violence Prevention regulation and present it to the Board before December 31, 2025. Cal/OSHA recently published its initial draft regulation (Title 8 CCR 3343), which contains more specific workplace violence prevention requirements, including engineering controls. Under SB 553, a new regulation must be adopted by December 31, 2026.

In the draft regulation, Cal/OSHA requires, among other things, that employers implement engineering controls and work practice (a/k/a “administrative”) controls appropriate for the workplace to eliminate or minimize employee exposure to identified workplace violence hazards. The draft regulation then goes on to define engineering controls to include:

electronic or mechanical access controls to employee occupied areas; weapon detectors (installed or handheld); enclosed workstations with shatter-resistant glass; deep service counters; spaces configured to optimize employee access to exits, escape routes, and alarms; separate rooms or areas for high risk persons; locks on doors; furniture affixed to the floor; opaque glass (protects privacy, but allows employees to see where potential risks are); improving lighting in dark areas, sight-aids, improving visibility, and removing sight barriers; video monitoring and recording; and personal and workplace alarms.

Work practice controls would be defined as including:

appropriate staffing levels; provision of dedicated security personnel; an effective means to alert employees of the presence, location, and nature of a security threat; control of visitor entry; methods and procedures to prevent unauthorized firearms and weapons in the workplace; employee training on workplace violence prevention methods; and employee training on procedures to follow in the event of a workplace violence incident or emergency.

While the standard was drafted by the Legislature as a “performance standard” that permits employers to choose the engineering and administrative controls best suited for their worksites to minimize exposure, Cal/OSHA’s draft regulation creates the realistic potential that the agency will enforce it as a “specification standard,” creating risk for employers who do not consider and implement the specific controls included in the definition.

Comments on the draft standard are due by September 3, 2024, with an advisory committee hearing scheduled for later this fall. Those in the regulated community can consider consulting with experienced counsel to assist in submitting comments to Cal/OSHA.

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 Patrick D. Joyce and Ilana Morady

Seyfarth Synopsis: A new rulemaking is underway at the California Department of Industrial Relations that will allow Cal/OSHA to cite employers for “enterprise-wide and egregious” violations, implementing a 2021 law signed by Governor Newsom. Cal/OSHA will convene an advisory committee on August 19, 2024 to solicit input.

Background

California employers may remember back to 2021, when California Governor Gavin Newsom signed SB 606 into law. Among other things, the bill created new categories of Cal/OSHA violations: “enterprise-wide” and “egregious,” which were incorporated into the Labor Code Sections 6317 and 6317.8. We blogged about it here.

The rulemaking is necessary to incorporate these classifications into the existing regulatory framework for citation classification and penalty calculation, and to provide related definitions and procedures. Notably, these proposed changes are similar to Federal OSHA’s Corporate Wide Settlement Agreements, and Cal/OSHA takes the position that enforcing enterprise-wide and egregious violations is necessary to ensure that California’s enforcement program remains “at least as effective” as the federal program.

What is “Enterprise-Wide”?

The proposed rules establish a “rebuttable presumption” that a violation is enterprise-wide if the employer has multiple worksites and either of the following is true:

  • The employer has a non-compliant written policy or procedure; or
  • Cal/OSHA has evidence of “a pattern or practice” of the same violation or violations involving more than one of the employer’s worksites.

Employers cited for enterprise-wide serious violations will not be eligible for penalty adjustments except for size. In other words, employer good faith and history of previous violations (or lack thereof) won’t matter.  If the employer fails to abate the alleged hazard at any worksite covered by the citation in a timely manner, a separate penalty of up to $15,000 will be assessed for each failure to abate. The proposed penalty for enterprise-wide violations would be multiplied by the number of worksites covered at inspection, up to $158,727.

What is “Egregious”?

An egregious violation is defined as a willful violation where the employer has a previous egregious violation that remains in effect (there is a five-year lookback window), or one or more of the following:

  • The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation;
  • The employer has a history of one or more serious, repeat or willful violations or more than 20 general or regulatory violations per 100 employees;
  • The employer intentionally disregarded their health and safety responsibilities, such as by failing to maintain an effective injury and illness program, ignoring safety and health hazards, or refusing to comply with the Cal/OSHA Act;
  • The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties to comply with occupational safety and health standards;
  • Within the five years preceding a citation for an egregious violation, the employer has committed more than five violations of any Title 8 standard” that has become finalized;
  • The violations resulted in worker fatalities, a worksite catastrophe, or five or more injuries or illnesses. (Catastrophe means inpatient hospitalization of three or more employees from a workplace hazard);
  • Within the 12 months immediately preceding the underlying violation, 10% of all employees at the cited worksite sustained workplace injuries or illnesses.”

The framework for issuance of repeat citations is applicable to egregious citations, in that the underlying conduct must have occurred within the past five years. Significantly, each employee exposed to an egregious violation will be considered a separate violation for purposes of the issuance of fines and penalties. This could result in breathtakingly large penalties for employers subject to alleged egregious violations.

The proposed maximum per instance penalty for egregious violations is expected to be $158,727, adjusted each year according to the consumer price index.

The foregoing proposed regulatory changes are undoubtedly significant for employers in California, and will have the largest impact of companies with multiple locations. It will be more important than ever for California employers to ensure regulatory compliance across all worksites and carefully manage Cal/OSHA inspections.

By Patrick D. Joyce, Ilana Morady, and Daniel R. Birnbaum

Seyfarth Synopsis: On July 24, 2024, Cal/OSHA’s indoor heat rule was approved by the Office of Administrative Law (OAL) and filed with the Secretary of State (SOS), rendering the rule effective immediately.

If you’ve been following our postings, you know that last month the Cal/OSHA Standards Board voted to approve Cal/OSHA’s indoor heat rule. Before a rule can become effective, it has to be approved by the OAL and filed with the SOS, a process which usually takes quite a while. It was known that the Standards Board requested OAL to expedite its review, but the regulated community was unprepared for OAL to be as expeditious as it was. Late yesterday, OAL approved the rule and promptly filed it with the SOS, upon which the rule was made effective. Cal/OSHA has not indicated that it will be giving employers any “grace period” to comply. For details on the requirements on the new rule, please refer to our earlier blog post: https://www.calpeculiarities.com/2024/06/25/too-hot-cal-osha-standards-board-approves-indoor-heat-illness-rule/#more-6646

By Bernard Olshansky and Patrick D. Joyce

Seyfarth Synopsis: Expanding a law enacted in 2022, New York’s legislature passed another bill that seeks to limit warehouse-related injuries by requiring employers to establish and implement an injury reduction program, evaluate certain jobs for ergonomic injury risks, correct risk factors, and provide injury reduction training.

Background: New York State’s Commitment to Warehouse Worker Protection

In 2022, New York State passed the Warehouse Worker Protection Act (2022 WWPA). The 2022 WWPA requires covered companies to disclose production quotas to warehouse workers. It also prohibits companies from adopting quotas that would prevent employees from taking legally protected breaks, and prohibits retaliation against employees who do not meet an undisclosed quota. The 2022 WWPA contains a provision allowing employees to request quota-related information without fear of retaliation.

Warehouse Worker Injury Reduction Program: Status and Overview

Passed by both houses of New York’s legislature (Senate and Assembly) but not yet delivered to the Governor for signature, the Warehouse Worker Injury Reduction Program (S5081 / A8907) requires employers to establish an injury reduction program designed to identify and minimize the risks of musculoskeletal injuries and disorders (a/k/a ergonomics injuries) among workers involved in performing manual materials handling tasks.

Citing injury statistics, the bill states that “the warehouse industry in New York state reports a rate of the most serious work-related injuries involving lost time or restricted duty (7.8 cases/100 full-time workers) that is more than five times the average rates of these types of injuries for all private industry in New York state (1.5 cases/100 full-time workers).”

Key Definitions, Coverage, and Effective Date

If signed into law in its current form by the Governor, the bill has an effective date of January 1, 2025.

The bill defines several key terms:

  • “Musculoskeletal injuries and disorders” means work related injuries, or disorders, of the muscles, nerves, tendons, ligaments, joints, cartilage of the upper and lower limbs, neck and lower back (including spinal discs) that: (a) are caused by sudden or sustained physical exertion; or (b) are not the result of any instantaneous non-exertion event, such as slips, trips, or falls.
  • “Qualified ergonomist” means an ergonomist who can demonstrate proficiency in the core, minimum competencies of ergonomics and injury prevention, as defined by the commissioner. Until the commissioner defines such competencies and approves ergonomists in accordance with such competencies, consultants approved by the commissioner under 12 NYCRR 59 and 60 with a credential as a certified safety professional or certified industrial hygienist shall be deemed to qualify as an ergonomist.

As to coverage, the bill applies to the same “Warehouse Distribution Centers” covered by the 2022 WWPA, but also amends certain portions of Section 780 of the New York Labor Law, which defines covered employers and employees:

  • “Employer” means a person who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary services, or staffing agency, independent contractor, or any similar entity, employs or exercises control over the wages, hours, or working conditions of one hundred or more employees at a single warehouse distribution center or one thousand or more employees at one or more warehouse distribution centers in the state.
  • “Employee” means an employee who is not exempt from the minimum
    wage and any overtime compensation provisions of this chapter and any
    applicable minimum wage orders and who works at a warehouse distribution center and is subject to a quota as defined in this section; provided, however, that “employee” does not include a driver or courier to or from a warehouse distribution center.

Requirements: Program, Evaluation, Training, Consultation

The law imposes several key requirements on employers, effective January 1, 2025 if the Governor signs the bill without altering it.  Each is outlined below.

  • Injury Reduction Program. Covered employers must establish and implement an injury reduction program designed to identify and minimize the risks of musculoskeletal injuries and disorders among workers involved in performing manual materials handling tasks. The program must include:
    • worksite evaluation;
    • control of exposures, including pace, which have caused or have the potential to cause musculoskeletal injuries and disorders;
    • employee training;
    • on-site medical and first aid practices; and
    • employee involvement.
  • Written Work Site Evaluation. Covered employers must ensure that each job, process, or operation of work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall have a written work site evaluation by a qualified ergonomist for risk factors which have or are likely to cause musculoskeletal injuries and disorders. Such risk factors shall include but are not limited to:
    • rapid pace,
    • forceful exertions,
    • repetitive motions,
    • twisting,
    • bending, and
    • awkward postures and combinations thereof that caused or are likely to cause musculoskeletal injuries and disorders.

Such evaluations must be conducted initially and “reviewed and updated” at least annually.  Further, employers must provide copies of the evaluations to employees upon request, within one business day.

Fix Risk Factors. Covered employers must correct, in a timely manner, any risk factors identified as having caused or being likely to cause musculoskeletal injuries and disorders. For any corrections which require more than thirty days to complete, the employer shall revise, as needed, and provide a schedule for such proposed corrections. The schedule shall be included in the evaluations provided to workers and their representatives.

Injury Reduction Training. Covered employers must provide injury reduction training to all employees involved in performing manual materials handling jobs and tasks at the warehouse during normal work hours and without suffering a loss of pay. Such training shall be provided in a language and vocabulary that the workers understand and shall be repeated annually. The training shall also be provided to the workers’ supervisors.  The training must include:

(a) The early symptoms of musculoskeletal injuries and disorders and the importance of early detection;

(b) Musculoskeletal injury and disorder risk factors and exposures at work, including the hazards posed by excessive rates of work;

(c) Methods to reduce risk factors for musculoskeletal injuries and disorders, including both engineering controls and administrative controls, such as limitations on work pace and increased scheduled and unscheduled breaks;

(d) The employer’s program to identify risk factors as required under this section and prevent musculoskeletal injuries and disorders, including the summary protocols for medical treatment approved by the employer’s medical consultant;

(e) The rights and function of workplace safety committees established under section twenty-seven-d of this chapter and the rights of employees to report any risk factors, other hazards, injuries or health and safety concerns; and

(f) Training on the unlawful retaliation of any provision in this section, including the disciplinary actions required when supervisors or managers violate the law or policy, as well as the employer’s policy prohibiting any workplace discrimination.

Medical Office/First Aid Staffing. Any on-site medical office or first aid station in covered warehouses that sees workers with symptoms of musculoskeletal injuries and disorders shall be staffed with medical professionals operating within their legal scope of practice.

Consultation with Employees. Covered employers must ensure that employees and their designated representatives are consulted both before and during the development and implementation of all aspects of the program.

**

Please reach out to the authors of this alert or another Seyfarth contact if you wish to discuss these developments.

By Jacob Roes, Patrick Joyce, Ilana Morady, and Adam Young

Seyfarth Synopsis: The Cal/OSHA Standards Board unanimously voted to approve Cal/OSHA’s indoor heat rule at the June 20, 2024 Standards Board meeting. Employers should be prepared to comply within the next 30-60 days.

Originally expected to be approved at the Standards Board’s March 21, 2024, meeting, the Cal/OSHA indoor heat rule underwent minor revisions before it was reintroduced to the Board for adoption at the June 20, 2024, meeting. The Board unanimously adopted the rule.

As detailed in our prior blog post, the indoor heat rule was rejected in March due to the state Department of Finance withdrawing a portion of its Standardized Regulatory Impact Assessment (SRIA) on the eve of the scheduled vote.

Between the March and June meetings, the Standards Board issued a slightly modified draft exempting correctional facilities, clarifying use of the “heat index” chart, and making other minor revisions. The approved draft rule maintains previous requirements for heat illness prevention plans, training, temperature trigger points of 82°F and 87°F, temperature monitoring, administrative and engineering controls, water provision, access to cool-down areas, acclimatization procedures, and emergency response protocols.

What’s Next

The indoor heat rule will now be sent to the Office of Administrative Law (OAL), which will review it for compliance with the California Administrative Procedure Act and integrate it into the administrative rules. The OAL has 30 days to approve or disapprove the indoor heat rule. The Board Chair informally requested the OAL to expedite finalization of the regulation. The Cal/OSHA Deputy Chief noted that he will request immediate enactment of the regulation upon OAL approval, though immediate enactment is not guaranteed.

If the OAL approves the rule but does not make it effective immediately, employers can expect an effective date of October 1, 2024. If OAL makes it effective immediately, employers can expect an effective date as early as August 1, 2024. The final approved text of the indoor hear rule can be found here https://www.dir.ca.gov/oshsb/documents/Indoor-Heat-updated-txtbrdconsider.pdf.

Workplace Solutions and Implementation

With the rule approved by the Standards Board, employers should be prepared to comply within the next 30-60 days. For a detailed analysis of the rule and its background, refer to our prior blog post.

While the rule has gone through minor revisions since the March 2024 meeting, key requirements remain for a written policy, training, temperature trigger points, temperature monitoring and logging, administrative and engineering controls, water provision, cool-down areas, acclimatization, and emergency response.

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 Adam R. Young, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration’s (“OSHA”) Hazard Communications (“HazCom”) Standard was the most frequently cited general industry standard in the past fiscal year.  OSHA recently announced a final rule that will update the current HazCom Standard to require new information on Safety Data Sheets and labels. The updated standard takes effect on July 19.

Image from OSHA.

OSHA’s HazCom Standard, the most frequently cited general industry standard, is being updated to align with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals.  The updated standard includes revised criteria for classification of certain health and physical hazards, revised provisions for updating labels, new labeling provisions for small containers, new provisions related to trade secrets, technical amendments related to the contents of safety data sheets (SDSs), and related revisions to definitions of terms used in the standard.

Chemical manufacturers, importers and distributors have until January 19, 2026 or July 19, 2027 to comply with the new rules.  The compliance deadline will depend on whether they are evaluating substances or mixtures.

Employers who use products that fall under the standard must revise their HazCom programs, labels and training by July 20, 2026 or January 19, 2028, subject to whether they are using substances or mixtures.

Given the prevalence of products that fall under this standard and the frequency of HazCom citations, employers should use this announcement as an opportunity to review their HazCom programs and develop a plan to ensure compliance by the respective deadline.  Employers should consult experienced OSHA counsel to help review their HazCom program and limit their exposure.

By James L. Curtis,  Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Numerous business groups led by the U.S. Chamber of Commerce sued the Occupational Safety and Health Administration over the Agency’s new walkaround rule. The suit, Civil Action No. 24-271, was filed last week in federal court in the Western District of Texas, challenging the legality of the recent regulation that expanded workers’ rights to bring in outside representatives during OSHA safety and health inspections.

The new OSHA walkaround rule expands the scope of who may lawfully participate in an OSHA walkaround inspection at a private employer. We previously blogged on the new rule here.  Under existing law, employees can designate authorized representatives to join OSHA inspections.  The general rule is that those representatives “shall be an employee of the employer.”  Existing regulations provide for exceptions where the presence and assistance of the third party is “reasonably necessary” to conduct an effective inspection, with examples of an “industrial hygienist or a safety engineer.” 

By contrast, the new rule taking effect May 31, 2024 would change the default to allow employees and third parties representatives not affiliated with the employer, such as non-employee union organizers.  The new rule further expands who may qualify as “reasonably necessary” to assist the OSHA inspection, expanding the scope to include individuals with skills and knowledge who are not safety professionals. Critics of the new rule argue that it is intended to allow unions access to non-union workplaces for the purpose of union organizing activities.  The presence of third parties on site may also jeopardize the confidentiality of trade secrets and commercial information.

This new OSHA walkaround rule reflects a long-standing effort to allow more third parties into OSHA inspections. The Courts struck down a prior attempt to permit more third party walkarounds. In NFIB v. Dougherty, No. 3:16-CV-2568-D, 2017 WL 1194666 (N.D. Tex. Feb. 3, 2017), a Texas federal court blocked the Obama-era regulation on procedural grounds, for failure to fulfill notice and comment requirements.  Though the new Biden-era rule went through a notice and comment period, the Chamber’s Complaint for Declaratory and Injunctive Relief argues that the new rule violates the Administrative Procedures Act, as well as the Fifth Amendment, Regulatory Flexibility Act, and the limitations of OSHA’s statutory authority under the OSH Act.

As the new rule is scheduled to take effect May 31, 2024, we are closely watching the litigation and tracking whether the new rule will been enjoined. 

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 Adam R. Young, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: On May 9, 2024, President Joe Biden announced that his administration has formally recommended relaxing restrictions on cannabis, marking the most significant federal policy shift on cannabis since the drug was criminalized more than 50 years ago.

The U.S. Department of Justice formally published its proposed rule to reclassify cannabis from the highly restrictive Schedule I tier under the federal Controlled Substances Act to the more loosely regulated Schedule III tier. “This is monumental,” Biden said in a video announcement.

The move has been seen as part of a larger push for marijuana reform by the current administration, an effort that has included presidential pardons for federal marijuana use and possession offenses. In announcing the administration’s new marijuana policy, Biden stated that the move aligned with his goal to lift barriers to employment for tens of thousands of Americans.

Following many state legalizations of medical and recreational marijuana, the federal rescheduling of cannabis under the Controlled Substances Act may be a step towards increased workplace impairment and positive drug tests.  It may also push both state laws and legal changes in a direction that restricts an employers’ ability to address possession and impairment at work.  But for now, the ramifications continue to be unclear and will be closely watched by our team. To ensure you are adequately minimizing legal exposure that may result from regularly shifting rules surrounding cannabis, contact your Seyfarth attorney.

By Stanley Jutkowitz and Susan Ryan 

Seyfarth Synopsis: Cannabis would move to Schedule III from Schedule I under this reclassification.

In a move long awaited by the cannabis industry, the Drug Enforcement Administration (DEA) has decided to re-schedule cannabis. Currently classified under Schedule I, along with heroin, cannabis would now move to Schedule III, along with ketamine and anabolic steroids.

This would not legalize cannabis for adult-use; rules and regulations would still apply, and there would be criminal prosecution of those who deal in cannabis without a license.

Re-scheduling, although much closer than it was yesterday, is still a ways off. The DEA rule needs to be reviewed by the White House Office of Management and Budget. After that review, there would be a public comment period (which looks to be at least 60 days, although no firm timeline has yet been set), after which the DEA rule would be published and go into effect. Given the controversy surrounding both the rescheduling and legalization of marijuana, we would not be surprised if there is litigation that seeks to stop the rescheduling from going into effect.

This story was first reported by the Associated Press. More details and commentary will appear in this week’s Week In Weed.