By Adam R. Young, Brent I. ClarkBenjamin D. BriggsDaniel R. BirnbaumMark A. LiesPatrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: In an effort to significantly increase the number of citations and penalties it may issue during an inspection, OSHA has updated its enforcement procedures for inspections to permit citations for each instance of alleged non-compliance.

In its most aggressive action to-date under the tenure of Assistant Secretary for Occupational Safety and Health Doug Parker, OSHA issued a memorandum on January 26, 2023 that significantly revamped OSHA’s policy for issuing Instance-by-Instance (abbreviated “IBI” by OSHA) citations for high-gravity serious violations of certain OSHA standards. Secretary Parker’s revised enforcement policy harkens back to the days of Assistant Secretary David Michaels, when “shaming” employers into compliance was on the top of OSHA’s agenda, rather than collaborating with employers to ensure compliance.

Subject to the factors discussed below, OSHA’s revised enforcement policy permits the Agency to issue a Citation and corresponding penalty for each instance of alleged non-compliance for each separate machine, location, entry or employee. The new enforcement policy goes into effect on March 27, 2023.

The prior policy, which had been in effect and unchanged since 1990, applied only to willful-egregious citations–very rare citations with a high standard of proof. OSHA has now indicated that instance-by-instance citations can be considered for high-gravity serious violations specific to:

  • lockout tagout
  • machine guarding
  • falls
  • trenching
  • respiratory protection
  • permit required confined spaces and
  • other-than-serious violations specific to recordkeeping

This list reflects several of the most commonly cited OSHA standards.

OSHA will look to the following factors in determining when to issue instance-by-instance citations:

  • The employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current;
  • The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39;
  • The proposed citations are related to a fatality/catastrophe;
  • The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

OSHA further indicates the revised policy may apply when the “text of the relevant standard allows [instance-by-instance application] (such as, but not limited to, per machine, location, entry, or employee) and when the instances of the violation cannot be abated by a single method of abatement.”

In a statement accompanying the revised enforcement policy, Assistant Secretary Parker explained that the impetus for OSHA’s updated enforcement guidance was to target “employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing.”  Parker’s comments reference a familiar theme cited by OSHA: that employers who choose “profit over safety” must be deterred through aggressive enforcement.  While this narrative often surfaces in OSHA enforcement efforts, it fails to recognize that profit and safety are not, as OSHA suggests, mutually exclusive.  In fact, research indicates that effective workplace safety programs enhance profitability by reducing damaging accidents, employee injuries, medical costs, administrative expenses, legal expenses, physical damage, and lost productivity. OSHA should instead promote workplace safety and regulatory compliance and collaboration as a means to increase productivity and profitability, and not continue to falsely assert that employers face a choice between the two.

In light of the recent guidance, employers must take a proactive approach to evaluating their workplaces to minimize risks. Moreover, employers must ensure that those responsible for OSHA reporting and recording obligations at the worksite under 29 CFR 1904 are fully complying with OSHA requirements. Further, employers must be more cautious in how they approach every OSHA inspection and settlement of citations, as the revised instance-by-instance policy will enhance potential liabilities for the next five years if an employer resolves a case that involves accepting willful, repeat, or failure to abate citations or if the case involved a fatality or catastrophe. As such, to avoid the potential of facing hundreds of thousands of dollars in penalties, employer should consult experienced OSHA counsel to reduce their potential liability.

 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. YoungMelissa A. Ortega, Daniel R. Birnbaum, Mark A. Lies, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: In the wake of increased employee mental health concerns and mass shootings across the country, employers looking to create or enhance a workplace violence program can look to the National Safety Council (NSC), which released a series of teaching materials on workplace violence.

With record numbers of mass shootings to begin the year in 2023, as well as an increase in employee mental health concerns, employers must focus on the hazards of workplace violence and protecting their employees. While federal OSHA currently issues citations related to workplace violence under its General Duty Clause, it is developing a workplace violence standard. Employers without workplace violence programs would be wise to develop a program, train employees, and implement appropriate safety controls.

Workplace Violence Toolkit

To aid those efforts, NSC offers a range of new resources. The NSC explains that “workplace violence can range from threats and verbal abuse to physical assaults and homicide and is one of the leading causes of job-related deaths. Stress, increased workloads, financial problems, firing, partner violence or disciplinary actions all can be triggers for workplace violence – or there may be no easily identifiable prompt.”

The following resources are available to help employers know what to look for:

•           Implementation Guide to Addressing Workplace Violence
•           5-Minute Safety Talk
•           Poster:  Active Shooter
•           Quiz
•           Tip Sheet
•           Poster: Prevent Workplace Violence
•           Checklist
•           Webinar
•           Fact Sheet

While the NSC is a highly respected safety organization, NSC’s recommendations may need to be tailored to the industry and specific worksite, especially in California where there is a workplace violence in healthcare standard. Employers should consult with legal counsel before implementing the NSC’s recommendations to ensure compliance with the Americans with Disabilities Act, state cannabis laws, and other federal and state rules.

These resources are also available on the topic.

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) or Workplace Policies and Handbooks Teams.

By Adam R. YoungDaniel R. BirnbaumJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: The continuing proliferation of accidents involving carbon monoxide have drawn the attention of OSHA and NIOSH, which have issued regulations and recent press releases on the issue.

Approximately 400 Americans die each year from carbon monoxide poisoning, which can overcome an employee in a matter of minutes. According to the National Institute for Occupational Safety and Health (NIOSH), carbon monoxide (CO) poses a significant risk due to it being “a colorless, odorless, and toxic gas”.

NIOSH indicates that employers with the following equipment at their worksite are at risk of having CO hazards in the workplace: vehicle exhausts, fuel burning furnaces, coal burning power plants, small gasoline engines, portable gasoline-powered generators, power washers, fire places, charcoal grills, marine engines, forklifts, propane-powered heaters, gas water heaters, and kerosene heaters.

Further, NIOSH notes that the “[c]ommon symptoms of carbon monoxide exposure are headache, dizziness, weakness, upset stomach, vomiting, chest pain, and confusion.”  Employers should be monitoring their workforce for employees who may exhibit these symptoms so that it can act promptly if a CO hazard is present.”

OSHA has issued a news release on CO noting that employers who are “using fuel-burning equipment and tools in buildings or semi-enclosed spaces without adequate ventilation” face risk of CO exposure or death. The risk increases “during the winter months when employees use this type of equipment in indoor spaces that have been sealed tightly to block out cold temperatures and wind.” As such, as the weather cools, employers must remain vigilant regarding CO hazards.

Many manufacturing processes and industrial functions will generate CO.  The current standard set by the OSHA limits exposure to 50 parts of carbon monoxide per million parts (PPM) of air averaged over eight hours.  According to OSHA, employers should consider the following precautions:

• Never use a generator indoors or in enclosed or partially enclosed spaces such as garages, crawl spaces, and basements. Opening windows and doors in an enclosed space may prevent CO buildup.

• Make sure the generator has 3-4 feet of clear space on all sides and above it to ensure adequate ventilation.

• Do not use a generator outdoors if placed near doors, windows or vents which could allow CO to enter and build up in occupied spaces.

• When using space heaters and stoves ensure that they are in good working order to reduce CO buildup, and never use in enclosed spaces or indoors.

• Consider using tools powered by electricity or compressed air, if available.

• If you experience symptoms of CO poisoning get to fresh air right away and seek immediate medical attention.

Employers can also consider installing more mechanical ventilation, carbon monoxide area monitors, and badges to ensure that employees are not exposed. 

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, Mark A. Lies, and James L. Curtis

Seyfarth Synopsis: Recent involuntary manslaughter charges against actor Alec Baldwin serve as a reminder of the state criminal manslaughter liability that may result from industrial accidents. Company management and employees involved in an accident face potential criminal prosecution, prison, and hefty personal fines.

The legal fallout from the unfortunate workplace fatality continues.  On January 20, 2023, New Mexico state prosecutors announced they were charging actor Alec Baldwin and armorer Hannah Gutierrez-Reed with involuntary manslaughter for the death of cinematographer Halyna Hutchins on the set of the movie “Rust” in October 2021. 

Criminal prosecutors can base charges solely on an OSHA citation that alleges: (1) the employer violated a specific applicable standard, (2) the employer did so willfully, and (3) that the violation caused an employee’s death. 29 USC § 666(e). The Department of Labor has entered into a Memorandum of Understanding with the Justice Department for ensuring effective prosecution of criminal workplace incidents. Federal OSHA criminal liability is punishable with six months’ imprisonment, a $500,000 fine to the Company, and a $250,000 personal fine. 

With regard to the “Rust” shooting, New Mexico OSHA issued of a “Willful” citation for $136,793.00 for failing to adhere to the film industry’s safety bulletins published by the Industry Wide Labor-Management Safety Committee. The Citation, issued under New Mexico OSHA’s General Duty Clause, is currently under appeal. No criminal charges have been filed based solely on the Citation.

As the “Rust” case illustrates, even if no criminal charges are based on the OSHA citations, state authorities may evaluate criminal charges relating to a workplace fatality. After a fatality is reported, state authorities routinely open concurrent criminal inspections. Many states (here New Mexico) then bring criminal charges of manslaughter against managers and employees involved in an accident. 

In the “Rust” case, under New Mexico law, the defendants face charges of involuntary manslaughter committed with a gun, punishable by a mandatory five years in prison. The involuntary manslaughter charges, which involves a killing while a defendant is acting negligently or without caution, mirror the “plain indifference” standard for acting “Willfully” for purposes of an OSHA citation. Special prosecutors on the case were quoted by media outlets as saying that there was a “pattern of criminal disregard for safety,” similarly mirroring the “Willful” standard.  

The recent charges should remind employers of the absolute importance of reviewing applicable safety standards, supervising employees exposed to such hazards, and enforcing the employer’s safety rules. The charges also serve as a powerful reminder that every individual in an organization will be viewed as having a responsibility for safety and duty to comply with applicable safety standards.

Employers who have workplace fatalities should engage qualified legal counsel and effectively manage inspections to minimize the probability they get willful citations.  OSHA’s employee interviews will be critical and employees must be adequately prepared — OSHA will not inform employees of their Miranda rights and may try to interview employees without management or company counsel present. If the employer receives a willful citation relating to a fatality, the employer should appeal and take all necessary steps to get the willful classification vacated.

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 A. Scott HeckerAdam R. YoungPatrick D. JoyceJames L. CurtisDaniel R. Birnbaum and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced enhanced enforcement and oversight efforts following an “alarming rise” in trenching fatalities, intended to draw attention to construction worker safety and present issues and solutions. Current OSHA enforcement guidelines require inspectors to open an inspection every time they see an open trench or excavation, regardless of whether a hazard is readily apparent.

The first half of 2022 saw an alarming increase in trench fatalities, increasing to 35 construction workers and greatly exceeding the 15 fatalities in 2021. In 2023, OSHA has redoubled its enforcement efforts to help prevent trenching accidents.

OSHA currently highlights trenching hazards on its website, to “[p]revent trench collapses and save lives.” Because employees may be quickly engulfed in significant amounts of material during trench collapses, OSHA recommends steps for controlling trenching hazards and keeping excavation work safe:

  • Ensure there is a safe way to enter and exit the trench;
  • Trenches must have cave-in protection – remember to Slope, Shore, Shield;
  • Keep materials away from the edge of the trench;
  • Look for standing water or other environmental hazards; and
  • Never enter a trench unless it has been properly inspected.

Based on OSHA’s news alert, enforcement related to trenching fatalities may be focused on ingress and egress, protective measures designed to prevent cave-ins, audits on nearby hazards that may create a safety issue, and inspection efforts by employers. Accordingly, employers should focus on these issues to reduce potential liability.

Any employer who has employees at a project that uses trenching or excavation should anticipate OSHA activity, and consult appropriate legal counsel to ensure that they are fully compliant.   Since 2018, federal OSHA has maintained a National Emphasis Program on Trenching and Excavation that requires OSHA compliance officers to open an OSHA inspection any time they observe an open trench or open excavation, “regardless of whether or not a violation is readily observed.”  Accordingly, any on-site OSHA compliance officer will open a separate inspection related to the trench if one is present. Even more impactful, any OSHA compliance officer driving by a construction site where there is an open trench is supposed to pull over, get out his camera, and open an OSHA inspection.

OSHA’s trenching and excavation page includes additional resources and publications to ensure trench and excavation safety, including:

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

By James L. CurtisBrent I. ClarkBenjamin D. BriggsMark A. Lies, Jeryl L. Olson, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. DOL and U.S. EPA have published their 2023 increases to civil penalties.

We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. The agencies have now finalized the 2023 inflation adjustments, which increase the penalties yet again.

Under the 2023 rule, the new maximum OSHA civil penalties will be:

 2022 Penalties2023 Penalties
Other than Serious Violations:$14,502$15,625
Serious Violations:$14,502$15,625
Repeat Violations:$145,027$156,259
Willful Violations:$145,027$156,259
Failure to Abate (Per Day):$14,502$15,625

The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2023, for violations occurring after July 15, 2022.

Readers familiar with EPA’s penalty structure know that environmental statutes typically set out a “per day” penalty, as well as a maximum statutory penalty. However, certain statutes allow for civil judicial enforcement that does not carry a maximum statutory penalty.

Under the 2023 rule, the new maximum EPA civil penalties will be:

2022 Penalties2023 Penalties
Clean Air Act                     Daily:  
Maximum (per violation):
$51,796 –  $109,024
$414,364
$55,808 – $117,468  
$446,456
Clean Water Act                Daily:
Maximum (per violation):
$23,989 – $59,973
$299,857
$25,847 – $64,618  
$323,081
RCRA                              Daily:$65,666 – $109,024
$70,752 – $117,468
CERCLA (including EPCRA)  Daily:                 
Maximum (per violation):
$62,689
$188,069
$67,544
$202,635

EPA’s 2023 penalties are effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after January 6, 2023. EPA’s 2022 penalties remain effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after January 12, 2022 but before January 6, 2023.

DOL and EPA are required to continue to adjust maximum penalties for inflation by January 15 of each new year.

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

By A. Scott HeckerAdam R. YoungPatrick D. JoyceJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On its website, OSHA is highlighting the hazards of working in winter weather and providing resources for employers to help protect their workers. 

Employers must remember that weather-based hazards exist not only in the heat and humidity of summer, but also in the dead of winter. OSHA has reminded employers of their duties to plan, equip, and train their workers for jobs impacted by winter weather in an effort to “[p]revent injuries, illnesses, and fatalities during winter storms.” The U.S. has already experienced significant winter weather events during 2022-2023, with much of the country having been impacted by heavy snowfalls, icy conditions, arctic cold, and/or brutal winds. Indeed, it seems instances of extreme weather continue to increase with each passing season. But – particularly with the 2022 holiday season in the review mirror – workers continue to perform their jobs in difficult conditions.

To that end, OSHA provides information on hazards – beyond cold stress – associated with operating in winter, including:

Employers should also consider appropriate winter clothing and personal protective equipment (PPE) to protect employees from cold weather hazards and ensure only appropriate equipment is used in wintry environments.

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 A. Scott HeckerAdam R. Young, Patrick D. JoyceJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On December 7, 2022, OSHA submitted its permanent “Occupational Exposure to COVID-19 in Healthcare Settings” standard to the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) for final review.

As we blogged with respect to the long-defunct COVID-19 “Vax or Test” rulemaking, OIRA review is one of the last steps in the regulatory process before the Federal Register publishes a final rule. While OIRA’s review timelines vary, and the rule’s text is not yet public, healthcare sector employers should be aware of this development to prepare for compliance in the coming months, likely the late first quarter or early second quarter of 2023.

OSHA provided a flowchart to help workplaces determine if they were covered under OSHA’s expired COVID-19 Healthcare Emergency Temporary Standard (“ETS”), which the agency published in June 2021. OSHA announced the withdrawal of its healthcare-focused ETS on December 27, 2021, more than a year ago, acknowledging that it could not meet the OSH Act’s six-month deadline to issue a permanent standard. In the announcement withdrawing the non-recordkeeping provisions of the ETS, OSHA further advised “that it intend[ed] to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking.”

OIRA continues to hold 12866 meetings – currently scheduled through at least January 9, 2023 – with worker and employer organizations over their concerns that the rule will do too little or too much. While interested stakeholders cannot comment on the standard’s specifics without regulatory text, we can expect, e.g., unions to express concerns that the permanent rule will not do enough to protect healthcare workers from COVID-19 and that delays in OIRA’s review will increase worker exposure during winter months when COVID-19 cases may increase. Employers, on the other hand, will want a narrow and clear rule that does not expand the scope of the ETS on which the permanent rule should be based.

While we may be approaching the end of the healthcare COVID-19 rulemaking process, stakeholders should remain mindful of ongoing developments. The rule, once issued, will likely face legal challenges, including arguments that OSHA violated the OSH Act when it failed to issue the permanent standard within six months of the underlying ETS.

We anticipate OSHA rulemaking on a “broader” infectious disease standard as well, so employers should remain on the lookout for movement on that front, and we will continue updating our readers on OSHA’s regulatory activities.

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 Benjamin D. Briggs, Adam R. YoungA. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) has released a new set of best practices to assist host employers in better protecting the safety and health of temporary workers.

Since 2013, Federal OSHA has maintained  a Temporary Worker Initiative, devoting  inspection resources towards temporary workers and staffing agencies. OSHA regularly cites multiple companies—including host employers—under this Multi-Employer Worksite Doctrine for alleged hazards faced by temporary employers.

Now NIOSH, a federal agency which lacks an enforcement arm, has put forward temporary worker guidance. According to NIOSH, its guidance addresses temporary workers who are paid by a staffing company and assigned to a host employer, including for both short- and long-term assignments. NIOSH explains that “the risk of experiencing a work-related injury may be higher for temporary workers than for non-temporary workers.”

NIOSH—in partnership the American Society of Safety Professionals (ASSP), the American Staffing Association (ASA), and the Safety and Health Assessment and Research for Prevention (SHARP) program within the Washington State Department of Labor and Industries—developed a set of best practices to help host employers optimize their efforts to protect the safety and health of temporary workers.

The best practices were organized into three sections:

  • Evaluation and contracting;
  • Training for temporary workers and their worksite supervisors; and
  • Injury and illness reporting, response, and recordkeeping.

NIOSH has also prepared a series of checklists for each of the three sections that can be printed or completed electronically. In addition, there is also a slide deck for staffing companies to use to educate their host employer clients about the best practices contained in the document.  These materials are educational and non-mandatory.

Enforcement of 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 temporary workers about their training and understanding of safety hazards.

We have blogged before on this topic. See, for instance, OSHA Focuses on Temporary Worker Employer Responsibilities and Guidance, OSHA Releases Two New Temporary Worker Guidance Documents, OSHA Releases Two New Temporary Worker Guidance Documents, New Guidance for ‘Recommended Practices’ to Protect Temporary Workers, OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers, and OSHRC Reviews Employment Relationships. For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Group.

By Adam R. Young, Daniel R. BirnbaumA. Scott Hecker, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis:  With concerns of infectious disease at the forefront of workplace health and safety in the past several years, and with the traditional flu and cold season upon us, OSHA has reminded the regulated community to prevent the spread of infectious diseases during the holiday season by encouraging its workforce to get the flu vaccine .

As the country cautiously shifts back to work practices that are more in line with pre-COVID policies, OSHA remains vigilant in ensuring workplaces properly encourage vaccination for employees with respect to both COVID-19 and traditional flu.  Unlike COVID-19, OSHA does not consider illness resulting from flu shots or flu and cold as work-related illnesses that must be recorded by employers on their OSHA 300 forms.  Moreover, OSHA enforcement of illness related to flu remains relatively rare in comparison to enforcement for COVID-related issues. 

However, employers should remain cautious.  Despite the wide availability of vaccinations and boosters, the Omicron variant caused in the winter of 2021 the highest case and hospitalization rates of COVID-19 during the entire pandemic.  Moreover, flu and cold cases historically spike during the winter.  Rising workplace cases result from additional temporary workers who may spread these illnesses, and from employees facing increased risk due to non-work related family and social gatherings.  If large outbreaks occur in select economic sectors that impact a significant amount of the workforce, OSHA may consider enforcement if it determines that employers are not doing enough to protect their employees. 

Even in the absence of OSHA enforcement, flu or COVID-19 illness can have several detrimental effects on the workforce, including:

  • work disruptions in the form of employees having to call off sick;
  • poor work productivity for those who are recovering from illness upon their return to work;
  • a strained relationship with the workforce which may manifest itself in safety complaints filed with the agency if employees believe management is not doing enough to prevent the spread of infectious disease
  • labor relations issues that may make management vulnerable during organizing drives.

In its guidance, OSHA stresses that infections peak between December and February, when employers must be particularly vigilant.  Certain industries, such as healthcare, may exercise more caution than non-healthcare workers. Flu vaccination remains one of the most effective ways to prevent infection.  As with COVID, employees must demonstrate good hygiene, cough and sneeze etiquette, and stay home when sick.  Improved ventilation can also minimize the risk of transmission.  OSHA also notes that viruses change frequently and the CDC provides up-to-date information on the most current recommended precautions and protocols.

Given the safety concerns raised by the pandemic and the continuing concerns posed by flu season, OSHA may be in the process of developing an Aerosol Transmissible Diseases standard that could address both COVID-19 and influenza, as well as the corresponding precautions and protocols required in the workplace.  Until then, employers must keep employees safe, consistent with an employer’s general duty to provide a workplace free from recognized hazards.

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