Under OSHA’s General Duty Clause, employers must provide a workplace free from recognized hazards likely to cause serious injury or death. OSHA regulations require PPE and respiratory protection where necessitated by the hazards at the workplace. Infectious diseases represent a recognized hazard at many workplaces across the United States (particularly in healthcare) and employers must implement appropriate procedures to protect employees.

For the past 50 years, employers have leaned heavily on guidance from the federal Centers for Disease Control and Prevention (“CDC”) to ensure that they had sufficient means of abatement in place.  Federal OSHA has long deferred to CDC recommendations when it comes to workplace health protocols—from COVID-19 to tuberculosis to seasonal flu. Employers across industries have looked to guidance from the National Institute of Occupational Safety and Health, a division of the CDC, as a resource for occupational safety and health best practices and recommended exposure levels for chemicals.   

Under the Trump Administration, the NIOSH workforce has been mostly eliminated. NIOSH may lack capacity to conduct research and make chemical exposure recommendations in the future.  HHS director Robert F. Kennedy Jr.  further has made public efforts to intervene in the CDC’s scientific recommendations, particularly with regard to virology and the efficacy of vaccines and treatments.

Important Questions on the Horizon

Whether it is COVID, tuberculosis, monkeypox, or a new global pandemic, employers will need to move forward in a new environment.

  • In light of recent developments at the CDC and dismantling of NIOSH, how do employers respond to an infectious disease outbreak at work? 
  • Should employers treat the CDC as a reliable partner for employee health and compliance purposes?
  • Will following CDC recommendations protect employees and ensure OSHA compliance?
  • Should employers rely on NIOSH for occupational health levels going forward?

CDC: Concerns as to Staffing, Science, and Stability

The CDC has shed nearly one-quarter of its workforce since early 2025, with thousands of employees laid off or having resigned. Sources report that up to 85% of NIOSH employees have left the agency in 2025.  The agency has been rocked by internal turmoil, including the ouster of Director Susan Monarez and a wave of policy reversals. The CDC has published guidance that has raised questions in the scientific community, though the agency has focused on childhood vaccines and over-the-counter medications with unproven links to autism. With this new focus, scientific projects on potential occupational exposures to infectious disease may have been disrupted or abandoned. Notably, the CDC reversed its COVID-19 vaccine guidance in October 2025 and general vaccine guidance in December 2025, shifting from universal recommendations to “consult your provider” language.

OSHA’s Position: CDC as a Reference, Not a Rule

OSHA does not mandate adherence to CDC guidance, but it often uses the CDC or NIOSH as a benchmark for what constitutes “reasonable” or “recognized” safety controls to protect employees from hazards, particularly in health care. In enforcement actions, CDC recommendations can serve as evidence of industry standards and recognized hazards to support a General Duty Clause Violations. But if those recommendations are unstable, politically influenced, or scientifically questionable, their value in employee health and OSHA compliance defense diminishes. Employers are ultimately accountable for protecting workers and must decide how much faith to place in these recommendations going forward.

What Should Employers Do?

On infectious diseases, employers will need to track guidance on pressing issues, as guidance and alternative source guidance may change abruptly. They should also track alternative sources of information. Four Western states formed the West Coast Health Alliance, focusing on providing evidence-based recommendations, initially regarding immunizations. This may be a helpful resource in the event of a controversial infectious disease issue.  The New England Journal of Medicine (NEJM) is partnering with the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota to create an alternative to the CDC’s Morbidity and Mortality Weekly Report (MMWR). The new initiative will involve a rapid digital alert system, published for free through a new section of NEJM Evidence, to disseminate essential public health data on outbreaks and other critical issues. This may provide additional data and information in the future.

NIOSH has been at the cutting edge of industrial hygiene research and recommendations for occupational exposure limits that may be lower than those covered by the OSHA standards. In the absence of NIOSH recommendations, employers would be wise to track developments from American Conference of Governmental Industrial Hygienists (ACGIH) TLVs, in the absence of future NIOSH guidance.

Document the Rationale

If you follow CDC or NIOSH guidance, you should make an effort to inquire whether it is consistent with scientific and guidance and document why the guidance should be valid in your context. If you deviate, show that what alternative authoritative source you are relying on, and why it is evidence-based.

For OSHA compliance, employers must treat CDC guidance treat as one input—not necessarily the final word. The burden of proof is shifting: it may no longer be enough to say, “we followed CDC guidance.” You must ensure that your infectious disease protocols are defensible and effective.

Seyfarth Synopsis: New York requires hospitals and nursing home employers to implement written workplace violence prevention plans, including hazard assessments, training, and incident logging within the year.

Health care employers have long faced liabilities relating to workplace violence, most commonly from patients and visitors.  Although no federal OSHA standards currently provide requirements for workplace violence in health care (though regulations are in development), federal OSHA aggressively regulates workplace violence hazards under its General Duty Clause, creating liability for health care employers who fail to proactively address hazards of workplace violence. OSHA provides a range of non-mandatory guidance on workplace violence prevention, but some states have begun issuing their own laws to specify requirements for safety programs and security personnel in health care, including onerous logging and notification requirements. California OSHA issued a workplace violence prevention standard applicable to health care in 2018. Connecticut, Illinois, Maine, Maryland, Minnesota, New Jersey, Oregon, and Washington have enacted other requirements.  Other states have pending requirements, including Massachusetts, Pennsylvania, and Virginia.

New York State has followed suit and has mandated new workplace violence compliance standards. Governor Hochul recently signed Senate Bill S5294A into law, requiring hospitals and nursing homes to implement comprehensive workplace violence prevention plans (WPVPP).

Workplace Violence Prevention Plan Requirements

The new law applies to general hospitals and nursing homes regulated under New York’s Public Health Law.  Employers must implement written WPVPPs. Hospitals and nursing homes must integrate WPVPPs into existing safety and accreditation frameworks. The WPVPP must include an initial and then a yearly hazard assessment to identify workplace violence threats and hazards.  The assessment requirement is a performance standard, meaning that employers will need to employ qualified persons to conduct comprehensive workplace violence hazards assessments (though the annual reassessment could be more circumscribed). The employer then must then use their expertise with their facilities and industry knowledge to customize and update the WPVPP, as well as implement enhanced safety controls to address the hazards observed.  The assessment should inform the employer of appropriate security measures and engineering controls required by the Act (e.g., barriers, alarms, communication systems). 

The WPVPP must include employee training to identify, prevent, and mitigate workplace violence. This will include de-escalation training for disruptive patients and visitors. Emergency rooms are required to have security personnel onsite, with specific requirements for off-duty law enforcement or specially trained security staff.  Smaller hospitals face less stringent security staffing standards, with exemptions for rural and critical access hospitals.

The law finally requires employers to maintain incident logs and share data with safety committees and employee representatives. 

Employer Action Plan

The law takes effect 280 days after enactment, giving facilities less than a year to establish programs. Likely reflecting the political impetus for this statute, the law mandates robust employee participation in the WPVPP: union representatives must be included in its development and implementation.  Compliance, including the detailed hazard assessments, will require significant resources.  Facilities may need to budget for enhanced security personnel, training, and infrastructure improvements.

Takeaway

This legislation underscores New York’s growing focus on workplace violence prevention expanding into healthcare. Hospitals and nursing homes should act quickly to align policies, staffing, and training with the new mandates.

Seyfarth Synopsis: In MFA Enterprises, Inc. v. OSHRC, No. 24-3107 (8th Cir. 2025), the Eighth Circuit Court of Appeals vacated OSHA citations related to hazards faced by employees working on top of rail cars, finding these hazards outside of OSHA’s statutory jurisdiction.

The Federal Railroad Administration (“FRA”) and federal Occupational Safety and Health Administration (“OSHA”) traditionally split jurisdiction over working conditions on rail equipment. Pursuant to a 1978 Policy Statement, OSHA confusingly exercised jurisdiction over conditions “not rooted in railroad operations.” In effect, this meant that OSHA enforced safety standards for rail operations at worksites otherwise owned and managed by General Industry employers, while the FRA inspected and enforced its regulations on railroad worksites, such as property and easements owned by rail companies.

As a result, OSHA has issued fall protection violations for employees working at heights above four feet on rail cars under its walking working surfaces standard, and has enforced citations relating to rail movements (e.g., “fouling” the tracks) under the OSH Act’s General Duty Clause.

Now, a federal court has turned OSHA’s approach on its head, finding that OSHA lacks statutory jurisdiction to regulate and enforce fall hazards atop rail cars, regardless of where the rail cars are staged. The U.S. Court of Appeals for the Eighth Circuit recently vacated an OSHA citation against MFA Enterprises, Inc. (“MFA”) for failing to ensure employees wore fall protection while working atop railcars. The court held that the Federal Railroad Act preempts OSHA’s jurisdiction over working conditions on railcars, reversing a prior decision that imposed a $122,878 penalty including willful violations.

Key Employer Takeaways and Recommendations

The Eighth Circuit oversees federal courts in seven central states: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. The Court’s opinion is not binding over courts in other states, but it is unambiguous and likely to be persuasive in other jurisdictions – both state and federal. Therefore, employers who receive OSHA citations related to work on top of rail cars should raise jurisdiction and preemption as defenses. Other citations relating to rail cars, rail car movement, and work around railroad properties should be similarly defensible. Jurisdiction can be raised at any time, and jurisdictional and preemption defenses can be raised for citations already under contest.

While OSHA’s jurisdiction was preempted, FRA rules still prescribe measures to protect employees, and employers still face the risk of FRA enforcement for rail accidents. The FRA’s railway safety regulations outline minimum federal safety standards for railroad inspection, maintenance, and construction activities, though the FRA’s fall protection requirements notably only apply to railway bridge workers. These standards aim to prevent accidents and casualties during rail operations.

Like OSHA violations, employers should note that FRA violations carry significant consequences, including civil penalties. 

Why Employers Should Still Act

Legal preemption does not eliminate the existence of hazard or the legal risk for unsafe work conditions. Falls from railcars or elevated surfaces can cause severe injuries or fatalities—risks that increase during winter when surfaces are icy and visibility is reduced.

Best Practices for Employers:

  • Maintain and enforce OSHA-compliant and FRA-compliant fall protection systems wherever feasible.
  • Conduct hazard assessments for tasks involving elevated work.
  • Provide regular training emphasizing FRA requirements and safe work practices.
  • Monitor winter conditions and implement additional precautions, such as de-icing and slip-resistant footwear.
  • Continue to report and/or record injuries relating to work on a rail car. We recommend that employers record and report rail-related incidents. However, we recommend framing any railcar incident as one outside of OSHA’s jurisdiction during the report. While the FRA has its own reporting obligation, it only applies to railroad employees.
  • Initiate and enforce employee compliance through periodic supervisor walkarounds of the rail yard during each shift to observe whether employees are utilizing the employer’s fall protection devices and practices.
  • When the supervisor observes instances of non-compliance during the walkarounds, take immediate action to correct the employee’s behavior through counseling or other forms of appropriate disciplinary action, with documentation of such action where necessary.

Proactive compliance with OSHA standards, FRA regulations, and American Associate of Railroads (AAR) industry standards not only avoid penalties, but also protects workers and demonstrates a strong safety culture.

Employers should assert appropriate defenses to OSHA inspections and citations.  The jurisdictional argument raised by MFA and blessed by the Eight Circuit likely can be raised in other cases where non-OSHA federal agencies could take jurisdiction over occupational safety, including rail cars, locomotives, yard dogs, over-the-road tractors and trailers, boats, and barges.

For more information, contact your Seyfarth attorney.

Employers with sophisticated safety programs implement overarching Safety and Health Management Systems (“SHMS”, also called Injury and Illness Prevention Plans and Accident Prevention Plans) to ensure that they properly assess hazards, select appropriate safety controls, evaluate safety performance, and engage employees. Federal OSHA recommends an SHMS and routinely demands the development of an SHMS to settle OSHA cases involving serious litigation. According to a 2012 federal OSHA white paper, 34 states require or encourage SHMSs, and some high-profile state plans have detailed requirements (e.g., CA, WA).

A critical component of a safety program is employee participation in hazard identification, training, compliance with safety rules, and enforcement. Employers increasingly recognize that the most sophisticated programs can falter when workers do not feel safe to speak. The strength of a safety program depends not only on written procedures, training, and audits—but also on an underlying culture where employees can raise concerns, report hazards, and suggest improvements without fear of embarrassment or reprisal. Psychological safety can help maximize the effectiveness of safety programs and minimize OSHA liabilities.

1. What is Psychological Safety?

This climate of openness, acceptance, and encouragement creates an environment where employees feel they will not be punished or humiliated for speaking up with safety ideas, questions, concerns, or mistakes—this is known as psychological safety. While the term that has gained traction in management research and organizational development but is equally relevant to occupational safety and health (OSH). OSHA standards require employee involvement in hazard identification, safety committees, and incident investigations, those mechanisms depend on employees’ willingness to engage. When workers hesitate to speak, participation erodes, and even well-designed systems fail to detect risks early. Further, the safety controls further down the NIOSH pyramid—administrative controls and personal protective equipment (PPE)—require employees to follow the rules or wear the PPE.

2. The Link Between Psychological Safety and Occupational Safety 

NIOSH’s Total Worker Health® framework recognizes that worker well-being is an integrated concept. Mental and social conditions in the workplace can directly influence the physical environment. If employees fear that reporting an unsafe condition will lead to blame or retaliation, that silence may enable an injury that was preventable.

In psychologically unsafe cultures, hazard reporting rates drop, near-miss reporting evaporates, and minor incidents go unexamined. Supervisors may interpret this quiet as compliance, when in fact it signals disengagement. By contrast, psychologically safe teams tend to identify hazards earlier, communicate concerns clearly, and cooperate in corrective action—hallmarks of a mature SHMS.

3. Employee Involvement as a Core System Element

OSHA’s Recommended Practices for Safety and Health Programs (2016) outline seven core elements of an effective SHMS, one of which is Worker Participation. The guidance notes that workers “often know the most about potential hazards” and that their involvement is essential in “developing, implementing, evaluating, and improving the program.”

However, participation cannot be compelled—it must be invited and sustained by trust. A worker who doubts management’s response, fears discipline or feels that their input will be ignored is unlikely to report unsafe conditions or volunteer solutions. In this respect, psychological safety is not a soft concept—it is the enabling condition for compliance-driven participation.

4. Leadership Behaviors That Reinforce Psychological Safety

Employers can foster this environment through deliberate management practices:

  • Model openness and humility. Supervisors who acknowledge uncertainty or mistakes signal that imperfection is acceptable, reducing the fear of speaking up.
  • Respond constructively to reports. When an employee raises a safety issue, the first response should be gratitude and follow-up, not defensiveness.
  • Integrate participation into recognition systems. Acknowledge employees who contribute to hazard identification, root cause analysis, or process improvement.
  • Protect against retaliation. Reinforce anti-retaliation policies and ensure consistent handling of reports to maintain credibility.
  • Train leaders in listening. Supervisors should learn to distinguish between complaints and contributions—both often sound alike in the early stages of a problem.

These behaviors not only improve morale but also fulfill the employer’s General Duty Clause obligation to provide a safe and healthful workplace by removing organizational barriers to hazard reporting.

5. Psychological Safety as a Leading Indicator

Traditional safety metrics focus on lagging indicators—injury rates, citations, workers’ compensation costs. But modern safety management emphasizes leading indicators that reveal whether systems are functioning proactively. Levels of employee voice, survey measures of trust, and frequency of near-miss reporting are all valuable leading indicators that correlate with psychological safety.

Employers who measure and manage these cultural factors gain early visibility into risk trends that might otherwise appear only after an incident. In this sense, psychological safety is not a “wellness” issue—it is a measurable risk management variable.

6. Building the Business Case

From an employer’s perspective, investing in psychological safety is not merely about compliance or compassion. It yields operational and legal benefits:

  • Reduced incident rates and lower workers’ compensation costs through earlier hazard identification.
  • Improved regulatory posture, as OSHA increasingly examines organizational factors during incident investigations.
  • Enhanced retention and recruitment, particularly among younger workers who value open, participatory cultures.
  • Better crisis response, since teams accustomed to honest dialogue can adapt faster during emergencies.

In short, psychological safety enhances every element of a safety and health management system—policy development, hazard analysis, corrective action, and performance evaluation—by ensuring that employee involvement is genuine rather than procedural.

7. Overcoming Employee Skepticism

As is the case in many workplaces, employees are skeptical of employer policies that announce that there is an “open door” policy for employees to voice concerns regarding workplace issues, including reporting workplace hazards which could be:

(1) physical hazards (e.g., the equipment itself or presence of toxic materials)

(2) workplace policies (e.g., employer workplace practices, such as productivity goals, exposure to repetitive tasks that might cause muscular injuries), or

(3) management practices (e.g., means of employee training, supervision of necessary work that exposes employees to hazards or silence by management regarding employee complaints).

When the employer’s workplace environment exhibits any of factors (1) – (3) employees may feel that they have no recourse at work to address them so they file anonymous complaints that can result in OSHA inspections. While employees have the right to file these complaints, resorting to OSHA and inspections can often be a cumbersome and inefficient manner to address factors (1) – (3), it is much less likely if employees genuinely feel that they are protected against retaliation and could timely address them with management.

In addition, if employees are encouraged to report hazards to the employer without fear of real or perceived retaliation, the employer can avoid having to respond to OSHA whistleblower retaliation liability under Section 11(c) of the Act. Such complaints can have a negative impact on the employer/employee relationship and can also create disruption and, in some cases, significant monetary expense to the employer to defend.

8. The Path Forward

Employers committed to continuous improvement should assess their current culture with the same rigor applied to other safety audits. Anonymous employee surveys, focus groups, and structured interviews can reveal whether workers feel comfortable raising safety concerns. Corrective actions may include leadership coaching, revising reporting procedures, or integrating safety feedback into performance evaluations.

The employer should consider tangible objective means and methods to encourage employee participation including:

  • financial incentives such as nominal monetary payments or gift cards to employees who report workplace hazards, submit recommendations to reduce or eliminate hazards or to improve safety and health policies
  • physical awards, such as articles of clothing, perhaps with company logos, that employees can use offsite
  • award ceremonies where employees are recognized for participating on a safety committee, conducting workplace inspections, submitting recommendations

The ultimate goal is a workplace where every employee, from the newest hire to the most seasoned manager, believes that raising a concern is not only safe but expected. When that belief takes hold, the organization’s safety and health management system becomes fully functional—because it is fully human.

9. Minimizing OSHA Liabilities

The most effective strategy to reduce workplace liabilities from occupational safety and health is to focus on key hazards and minimize the occurrence of accidents. Psychological safety, integrated into a mature safety culture and effective safety and health management system, can help eliminate mistake and injuries. OSHA agencies look favorably at a sophisticated employer who is focused on these issues. This program could help aid the employer in typical OSHA defenses, including lack of employer knowledge and employee misconduct. Further, addressing safety issues through programs can be a defense to allegations of willful violations.

Seyfarth Synopsis: States continue to strike down restrictions and expand gun access, requiring employer vigilance to comply with the law and protect employees from workplace violence hazards.

Employers have been alarmed by an increase in workplace violence over the last ten years, particularly in health care. The prevalence of active shooters in workplace (and decline in accidental deaths) mean that workplace violence now accounts for 17% of all occupational fatalities. In the event of a workplace shooting, OSHA agencies can issue Serious citations to employers who fail to protect employees from a recognized hazard of workplace violence. If improperly managed, an OSHA inspection and citation could be used against an employer in a multi-million-dollar tort action relating to the shooting. Employers further must implement workplace violence prevention programs in some state plan states (e.g., CA, NY), while struggling to comply with expanding firearms access laws in dozens of others.

The Supreme Court’s Precedent and Expanding Gun Rights

Recent legislative and judicial developments across the country have expanded individual rights to carry firearms. State courts have applied the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen to strike down longstanding firearms restrictions that lack “history and tradition,” meaning similar restrictions on firearms from colonial governments and 18th century state statutes.

Accordingly, state legal changes have expanded the firearms landscape to allow for open carry, concealed carry, carrying by young adults, carrying by individuals convicted of domestic violence crimes, and carrying by individuals who had been “red-flagged” by a court for a mental health crisis or criminal history. These new state laws raise important questions for employers managing workplace safety and compliance.

Florida’s Open Carry Ban Overturned

In McDaniels v. Florida, No. 1D2023-0533 (1st Dist. Ct. Appeal Fla.), the Florida First District Court of Appeal struck down the state’s long-standing ban on open (unconcealed) carry of firearms. The court vacated a criminal conviction and ruled that Florida Statute § 790.053 was unconstitutional under the Second Amendment. This decision, effective September 25, 2025, permits open carry for adults 21 and older, provided the firearm is holstered or slung appropriately (and not brandished in a threatening manner).

“Permitless” Carry and ID Requirements

  • Like many states with expanded gun access laws, Florida permits concealed carry without a permit. Fl. Stat. §790.01 and §790.013. Individuals must carry valid identification while armed and present it upon request by law enforcement. Failure to carry identification is a noncriminal offense, punishable by a $25 fine.
  • In a separate ruling, a Florida judge invalidated the state’s restriction on concealed carry for individuals aged 18–20, further broadening carry and access.
  • South Carolina recently passed a statute allowing permitless carry.
  • Tennessee has expanded its permitless carry statute, lowering the age limit from 21 to 18.
  • Texas has expanded permitless carry, with recent clarifications providing protections for gun owners in public spaces.
  • Texas has outlawed the enforcement of “red-flag orders,” meaning that state authorities will be disallowed from disarming individuals that a court adjudicated to be a threat to public safety. 

What Employers Can Restrict

Despite past lobbying efforts from gun rights groups, no states currently mandates that private employers allow open carry or concealed carry of firearms in their workplaces. The rights of private property owners to restrict access to their properties essentially override individuals’ rights to carry firearms. Employers with property rights at the workplace, including lessees, retain the right to prohibit firearms on their premises. Workplaces include retail stores, offices, health care facilities, and other business environments.

Employers’ means to enforce these restrictions include posting of prohibitions on firearms, requiring of employees and contractors to comply with its safety rules (through discipline and contractual enforcement), and right to use law enforcement to enforce trespass restrictions against armed individuals.  In the case of Florida, the Florida Attorney General confirmed this position in a Guidance Letter dated September 15, 2025, explaining that employers may report violations to local law enforcement as a trespass—a third-degree felony under Florida law.

But an employer who provides employees to a mutli-employer worksite that they do not control has fewer options. The employer can seek agreement with the property operator on firearms via contract and remove its employees if the property operator is not complying with its agreement.  But monitoring and hazard recognition at a property operator’s worksite generally will be a challenge.

“Parking Lot Law” Exceptions

Dozens of states require employers to allow employees to possess firearms in their personal vehicles, even when parked on Company-owned property that otherwise restricting firearms.

Florida, for example, prohibits employers from:

  • Banning firearms stored in locked vehicles
  • Asking employees about firearms in their vehicles
  • Searching vehicles for firearms

As explained above, the parking lot protection does not extend to workplace interiors, and employers may still enforce no-carry policies inside buildings. It also does not extend to Company vehicles.

Practical Takeaways for Employers

  • Draft and implement workplace violence prevention programs to protect employees, contractors, visitors, customers/clients.
  • Assess worksites for workplace violence hazards.
  • Respond proactively to reports of workplace violence hazards.
  • Review and update workplace firearm policies to reflect current state laws.
  • Train managers on enforcement procedures, including trespass reporting.
  • Communicate clearly with employees about vehicle vs. workplace carry distinctions.
  • Monitor ongoing litigation and legislative proposals that may further impact employer rights.

As firearms laws continue to evolve, employers must stay vigilant to balance individual rights with workplace safety. We will continue tracking these developments and provide updates as new rulings and statutes emerge.

Seyfarth Synopsis: Newly-confirmed member on Occupational Safety and Health Review Commission offers hope for eventual resolutions of pending cases.

On October 10, 2025, the Senate confirmed Jonathan L. Snare to serve as a Commissioner of the Occupational Safety and Health Review Commission (OSHRC), filling one of the long-vacant seats on the three-member appellate panel for federal OSHA cases. His term extends through April 27, 2029.

Background

The Occupational Safety and Health Review Commission (OSHRC) is the independent administrative agency that provides appellate-style review for matters arising from OSHA enforcement actions. For much of the past year, the three-member Commission has lacked a quorum of two commissioners, leaving review of dozens of administrative law judge (ALJ) decisions pending and delaying final resolution of contested citations. Snare’s confirmation begins to restore OSHRC’s ability to function, although at least one additional commissioner must be confirmed before the Commission can issue decisions.

Experience and Perspective

Snare has more than two decades of experience in labor and employment law at an employer side law firm, and previously served in several senior roles at the Department of Labor, including Acting Assistant Secretary of OSHA and Deputy Solicitor of Labor. His experience suggests he will have an understanding of perspectives from both the Department of Labor and employers, including the practical effects that OSHRC decisions can have on industry. This deep level of understanding will be invaluable in helping to formulate decisions once a quorum is reached.

Implications

With Snare’s appointment, employers, employees, and OSHA may see progress towards resolution on the backlog of cases awaiting Commission review, hopefully to the benefit of the regulated community. A functioning OSHRC provides a critical check on agency enforcement and ensures that contested matters are resolved consistent with statutory requirements and constitutional principles, such as due process protections afforded to employers during an inspection. The next key step will be the confirmation of an additional commissioner (or two) to reestablish a quorum and restore the Commission’s full adjudicative authority.

For more information on this or any other workplace safety topic, please contact your Seyfarth workplace safety attorney.

Seyfarth Synopsis: David Keeling’s confirmation as OSHA Chief could give regulatory and enforcement direction to OSHA when federal government funding is restored, likely moving the agency towards enhanced collaboration with industry and refocusing of enforcement priorities.  

Senate Confirms Keeling

On October 6, 2025, as part of a larger confirmation of Trump appointees, the Senate voted 51-47 to confirm as Assistant Secretary of Labor for Occupational Safety and Health, officially placing him at the helm of OSHA.

As we previously blogged, Mr. Keeling is a seasoned safety professional with decades of experience at major logistics and transportation employers in the private sector. His familiarity with complex organizational safety programs positions him to lead OSHA with a nuanced understanding of OSHA regulation and enforcement in the context of the modern workplace.

On June 5, 2025, during his nomination hearing before the Senate Health, Education, Labor and Pensions (HELP) Committee, Mr. Keeling outlined his vision for the agency and policy priorities. He would shift OSHA away from reactive enforcement and toward proactive injury and illness prevention. He seeks to “greatly accelerate the pace of modernization in the area of Regulatory Oversight and Rulemaking,” emphasizing predictive analytics and informed design to eliminate hazards before they cause harm.

Revitalized Cooperative Programs

Mr. Keeling has also pledged to revamp OSHA’s Voluntary Protection Programs (VPP), which he views as underutilized tools for achieving meaningful safety outcomes. “We must move beyond existing silos and self-imposed barriers to achieve real improvement,” he testified, signaling a renewed emphasis on collaboration with employers and industry stakeholders.

Mr. Keeling’s cooperative tone stands in stark contrast to the enforcement-heavy and confrontational posture of recent Democratic administrations. Under Mr. Keeling, OSHA is expected to prioritize industry alliances, data-driven safety strategies, and employer-led initiatives that align with regulatory goals.

Workplace Violence and Heat Illness Priorities

Mr. Keeling has signaled an interest in pursuing a new workplace violence standard with employer input, as well as maintain OSHA’s focus on heat illness.  At this point it is unclear whether that this renewed focus on heat illness will take the form of formal rulemaking or revised emphasis programs.

Does Mr. Keeling Have the Resources to Chart a New Path for OSHA?

Mr. Keeling’s confirmation ushers in a new chapter for OSHA—one defined by modernization, employer collaboration, and a data-informed approach to safety. As the agency recalibrates under his leadership, employers should prepare for both opportunity and change.

But any goals Mr. Keeling pursues will be limited by the context of an agency and federal administrative state in a period of significant cost reductions. He faces a currently shuttered federal government, with the majority of OSHA staff furloughed and unavailable to handle basic enforcement functions. When the government does reopen, Mr. Keeling will be working with reduced budgets and fewer human resources than the agency had in October 2024. It remains to be seen whether he will have the staff to pursue his new vision for federal OSHA. But in any event, employers can expect to see an OSHA agency less focused on punishing employers and more focused on moving employers into a new era of health and safety.

For more information on this or any other workplace safety topic, please contact your Seyfarth workplace safety attorney.

Seyfarth Synopsis: Despite Congress failing to fund the federal government, the Department of Labor and OSHA will continue to operate with a skeleton crew. Citations will still be issued, deadlines remain in effect, and employers must report serious injuries and fatalities.

OSHA Furloughed Most Staff

On October 1, 2025, the federal government entered a shutdown following Congress’s failure to fund the government. Pursuant to federal law, non-essential operations of the government have been suspended, with some employees required to continue working without pay.

In 2025, federal OSHA had already faced tremendous attrition with DOGE cuts and voluntary resignations. Under the Department of Labor’s written contingency plan, approximately 43% of OSHA’s staff was supposed to be furloughed. But this week, OSHA furloughed 1,204 out of 1,664 staff members. Administrative functions have been suspended, including regional offices, regulatory functions, and support staff. Some OSHA management and compliance officers will remain on duty, focusing on high-priority inspections and enforcement.

OSHA State Plan Activity to Continue Uninterrupted

OSHA state plans largely will not be impacted by the federal shutdown. OSHA State Plans are state agencies that enforce OSHA regulations against private employers in 21 states and one territory. While federal oversight of those agencies may be reduced during the shutdown, inspections, citations, and appeals will continue unabated in state plan states.

Ongoing Federal OSHA Inspections

With ~75% of OSHA staff furloughed, most ongoing enforcement activity has been suspended. If you contact an OSHA compliance officer about an ongoing inspection, you likely will receive an out-of-office reply that they are unreachable. OSHA has stated that it will continue some OSHA inspections with its skeleton crew:

  • Imminent danger situations
  • Workplace fatalities and catastrophes
  • Serious safety and health complaints
  • Follow-ups on abatement and high-gravity serious violations

New programmed inspections will not be opened.

OSHA Must Issue Citations for Ongoing Inspections

The OSHA Act imposes a six-month statute of limitations to issue citations from the time OSHA becomes aware of a hazard. Accordingly, OSHA must issue citations within six months of the date of an accident, OSHA’s receipt of a complaint or an injury report, or OSHA’s opening of a programmed inspection. OSHA’s deadlines to issue citations have not been stayed and there is no indication that Congress will extend the statute of limitations period during this shutdown. Accordingly, we anticipate that the Agency will still issue citations with pending deadlines during the shutdown. Employers should be prepared to receive and respond to citations even while other government functions are suspended.

Employers Must Comply with Important Deadlines

Notice of Contest. Employers receive citations must file a Notice of Contest (appeal) within 15 working days after receiving a citation or it will become final. The government shutdown has not stayed that jurisdictional deadline. OSHA has cancelled many informal conferences and will not negotiate a settlement. Accordingly, a failure to file a contest will waive an employer’s rights to challenge a citation.

Reporting Injuries. Employers must still report work-related injuries and illnesses as required by law. Even employers in low hazard industries who are not required to keep written OSHA records still face reporting obligations. Federal OSHA regulations require employers to report work-related fatalities within 8 hours, and serious injuries within 24 hours (amputations, loss of eye, or hospitalizations for medical treatment). The employer must analyze whether the incident is work-related and whether it must be reported to OSHA, often within hours of its occurrence. Qualified legal counsel can help advise on reporting obligations and legal analysis.

Recording Injuries. Within 7 calendar days of a work-related injury or illness that meets a recording criteria (e.g. days away from work), an employer who is required to maintain an OSHA Form 300 Log must also add the injury to the log and create an OSHA Form 301 Incident Report.

Additional Recommendations

A government shutdown may slow some regulatory and enforcement gears, but occupational safety and health is still vitally important. Employers should not interpret the shutdown as a reprieve from compliance or permission for complacency. Instead, they should remain proactive, monitor developments, and consult legal counsel to navigate the continuing uncertain terrain of the Second Trump Administration.

Introduction

OSHA duty officers around the country routinely field complaints from employees and labor unions alleging workplaces are understaffed and unsafe. Unions often dispute staffing levels, complaining that employers have insufficient bargaining unit members and insufficient members with seniority. Individual complainants allege that they are left to work alone, have no backup in case of emergency, or are at enhanced risk of accident or workplace violence.

OSHA duty officers normally tell complainants that there are no written regulations addressing safe staffing levels, and that it is not unlawful to work alone. But employers would be wise to consider staffing levels to protect employees from recognized hazards. In many situations, appropriate staffing can reduce risks of accidents and slow-developing injuries, and ensure employee safety and emergency response. Accordingly, understanding of issues relating to safe staffing levels can be key to minimizing risks to OSHA citations and other legal liabilities.  

OSHA and Legal Liabilities

Under the OSH Act’s General Duty Clause (section 5(a)(1)), employers must provide a workplace free from any recognized hazard likely to cause death or serious physical harm. For OSHA to cite an employer under the General Duty Clause, the hazard must be recognized by the employer or in the industry. Where insufficient staffing is recognized to expose employees to hazards, employers face liability for Serious or Willful OSHA citations. Recognized hazards principally exist where staffing levels render employees unable to perform critical safety tasks.  Further, injuries to employees resulting from alleged understaffing could result in workers compensation claims. Injuries to non-employee workers could result in tort claims, alleging negligence and a failure to meet the standard of care of a reasonable employer. 

Though there is no criminal liability for a willful violation brought under the General Duty Clause, a willful violation of a specific regulation resulting in a fatality can result in criminal prosecution punishable with six months in federal prison. State governments occasionally also prosecute employers (and managers) for a range of criminal violations relating to deaths in their workplaces.

Emergency Response and PSM Facilities

Complex facilities require minimum staffing levels to ensure appropriate response in the event of natural disasters and major emergencies.  Storms, hurricanes, tornadoes, floods, and earthquakes typically require minimum available staffing to prevent further damage and catastrophes. Implicated OSHA standards include the following:

  1. Under OSHA’s Emergency Action Plan regulations (29 CFR 1910.38(c)), employers are required to have procedures for evacuation and operating critical plant components during an emergency. Employers must have adequate personnel to facilitate an emergency response, as necessary.
  2. Where employers utilize their own team for emergency response, the team must be adequately staffed to perform evacuations, firefighting, or chemical spill responses.
  3. Under the Permit-Required Confined Spaces standard (29 CFR 1910.146), staffing must be adequate for all roles to be present (entrant, attendance, and entry supervisor), and an entry-rescue team (if required).
  4. For facilities governed by the Process Safety Management (PSM) standard (29 CFR 1910.119), the regulations require staffing to perform tasks safely and maintain process safety information, procedures, training, and emergency planning. Insufficient staffing levels can constitute a PSM violation where it creates unsafe conditions that make a chemical release more likely.
  5. After an accident, an employer may need to contact emergency services, immediately investigate the facts of the accident, and provide clear direction to emergency responders to ensure they know where to go and how to protect themselves from any hazards. Insufficient staffing may render the employer unable to provide that assistance.
  6. In addition to staffing levels, employers should take into account the need for adequate supervision for the employees working. Supervision shortages most often occur during off-shifts.

Fatigue, Overwork, and Workplace Violence

Insufficient staffing can result in employees working extended shifts. Overworked employees could lead to wage and hour violations, including under the FLSA and state laws. Extended hours can result in employee fatigue and a declining quality of decision-making that results in greater exposures to hazards.  Employers may also face the following hazards:

  1. Understaffing can contribute to ergonomic hazards, to the extent that employees attempt to lift heavier loads or move heavier equipment that would normally require a team effort.
  2. Employers operating heavy equipment may lack “spotters” and may be unable to complete tasks efficiently or safely.
  3. Lower staffing levels in many environments, such as retail environments and healthcare, can result in increased risks to workplace violence (often addressable with security staffing in particular)
  4. Employers may be choose to address these issues with elimination or engineering strategies, to minimize employee exposure to safety hazards.

Where to Find Staffing Levels

Optimal safe staffing levels and ratios vary significantly based on the industry, the size of a worksite, the complexity of operations, type of equipment, and severity and probability of workplace hazards. Safe staffing levels can be determined in part by a job hazard assessment by a qualified safety professional, in consultation with industry standards and Original Equipment Manufacturer recommendations. Benchmarking is often available from industry organizations and consensus standards. For firefighting, NFPA 1710 staffing standards are generally considered safe and effective, aiming to ensure adequate resources for fire suppression, EMS, and special operations.

Failure to comply with industry consensus standards can create OSHA General Duty Clause liability, as OSHA often relies on industry standards and industry recommendations as bases for an alleged “recognized hazard” in the industry.

Engage Qualified Outside OSHA Counsel

Because of these many legal liabilities, it is essential for employers to engage a qualified attorney experienced in OSHA compliance. If you have an accident or OSHA opens an inspection, experienced OSHA counsel can be integral to defend the employer and conduct proper OSHA inspection management. Improperly managed inspections can result in avoidable civil and criminal liability. Please contact the authors for more information.

About the Authors:

Adam R. Young is partner in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Young focuses his practice in the areas of occupational safety and health, employment law, and associated commercial litigation. Mr. Young can be contacted at ayoung@seyfarth.com (312/460-5538).

Mark A. Lies, II is an attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Lies is a partner who focuses his practice in the areas of products liability, occupational safety and health, workplace violence, construction litigation and related employment litigation. Mr. Lies can be contacted at mlies@seyfarth.com (312/460-5877).

Seyfarth Synopsis: Oregon OSHA institutes program for comprehensive follow-up inspections based on an employer’s violation history, which necessitates employer care during inspections and negotiation of settlements.

Oregon Governor Tina Kotek signed Senate Bill 592 into law in 2023, requiring Oregon OSHA to increase penalties and implement a program for follow-up inspections for significant citations. In response, Oregon OSHA implemented its “Programmed Inspections for Cause” enforcement program designed to prioritize comprehensive inspections against employers with histories of multiple high-classification (Repeat or Willful) citations or citations issued in response to a fatality. 

Comprehensive Follow-up Inspections

A “comprehensive inspection” is a wall-to-wall examination of the worksite to assess compliance with occupational safety and health regulations. Unlike focused inspections, which target specific hazards or complaints, a comprehensive inspection reviews multiple aspects of workplace safety, including:

  • Worksite conditions – Identifying hazards related to equipment, materials, and overall environment.
  • Employee practices – Evaluating whether workers follow safety protocols.
  • Recordkeeping – Checking injury logs, training records, and compliance documentation.
  • Safety programs – Assessing the effectiveness of employer safety initiatives.

Comprehensive (“wall-to-wall”) inspections can be extremely lengthy and onerous, consuming management time and attention better spent on employee safety. A follow-up wall-to-wall inspection is more likely to result in significant OSHA citations and penalties, such as willfuls (maximum of $164,759 per violation, but up to $263,599 per violation if it involves a work-related fatality) or failure to abate (fined at$15,625 per day for each violation).

What Triggers a Programmed Inspection for Cause?

Oregon OSHA mandates a comprehensive inspection when any of the following conditions are met:

  • A work-related fatality is linked to a violation.
  • An employer commits three or more willful violations within a 12-month period.
  • An employer commits three or more repeat violations within a 12-month period.
  • An employer has a history of non-compliance, and the Administrator deems a full inspection necessary for employee protection.

The final trigger is the most legally dubious, as “history of non-compliance” is undefined. Ostensibly intended to enhance accountability and enhance workplace safety across Oregon, the program permits Oregon OSHA’s Administrator to target employers for inspection so long as they are on a “bad history” list.  The Program appears to create a system in which Oregon OSHA can circumvent the legal requirements of probable cause and neutral basis for inspection, violating employers’ constitutional rights under the Due Process Clause to be free from unfair and arbitrary employment actions.

Importantly, employers inspected under this Program must learn the basis for an inspection at an Oregon OSHA opening conference; they may have legal defenses that must be raised at the opening or they will be waived.

Under the Program, these follow-up inspections must be initiated within one year of the closing conference that triggered the follow-up.

Avoiding Getting Placed on the “For Cause” List

Oregon OSHA’s “For Cause” Program further spotlights the importance of employers implementing a quality Safety and Health Management System and analyzing the workplace to reduce hazards to their lowest reasonable levels. In the event Oregon OSHA comes on site, employers must effectively manage the inspection to ensure that only the agency receives only responsive, truthful information.  If an employee experiences a fatality or serious injury that may result in a fatality, employers and management representatives can face criminal charges in addition to inclusion on the “For Cause” list.  In the event that Oregon OSHA issues a citation, it should be resolved in a way that eliminates the employer’s eligibility for a follow-up inspection under the program by ensuring the triggering criteria are not met.  An employer often will be better served by contesting the citations (especially those to which it has strong defenses) and reaching a settlement with exculpatory language that protects the company.

Conclusion

Oregon OSHA’s Programmed Inspection for Cause represents a critical shift in workplace safety enforcement. Employers must stay vigilant and proactively protect workers from safety and health hazards, address violations promptly, and maintain a strong safety culture. Employers who receive Oregon OSHA citations should work closely with qualified OSHA counsel to ensure that they are not subject to preventable comprehensive follow-up inspections.