By A. Scott Hecker, Adam R. Young, Mark A. Lies, James L. Curtis, Patrick D. Joyce,  and Craig B. Simonsen

Seyfarth Synopsis: In U.S. Dep’t of Labor v. Tampa Elec. Co., the U.S. Court of Appeals for the Eleventh Circuit used common sense and reason to find the word “uncontrolled” is unambiguous and not open to interpretation – “because we conclude that the release of ammonia at Tampa Electric’s plant wasn’t ‘uncontrolled’ within the meaning of the OSHA standard, we hold that the standard didn’t apply to [the Company’s] response and, therefore, that [it] didn’t violate it.”

Tampa Electric Company received a citation under 29 CFR 1910.120, OSHA’s emergency response regulations also known as “HAZWOPER” (short for Hazardous Waste Operations and Emergency Response). OSHA alleged that Tampa Electric violated HAZWOPER’s respiratory protection requirements when Company employees responded to a release of ammonia within the facility without a self-contained breathing apparatus. At hearing, OSHA argued the release of ammonia was “uncontrolled,” and thus covered by HAZWOPER, because the ammonia was not contained once it entered the atmosphere. Tampa Electric argued HAZWOPER did not apply to its response actions because the Company’s personnel were able to stop and control the release. The Administrative Law Judge, the Review Commission, and the Eleventh Circuit all sided with Tampa Electric.

The Eleventh Circuit explained that the key definition is for “emergency response,” which the regulation defines in three parts. The Court relied upon the definition’s first sentence quoted below, which explains what is an ‘emergency response,’ as well as the second and third sentences, which explain what is not an “emergency response:”

Emergency response or responding to emergencies means a response effort by employees from outside the immediate release area or by other designated responders (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area, or by maintenance personnel are not considered to be emergency responses within the scope of this standard. Responses to releases of hazardous substances where there is no potential safety or health hazard (i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses. Slip opinion, pg. 3.

29 C.F.R. § 1910.120(a)(3). (Emphasis added).

The Court found that the determinative question was “whether the release of ammonia at Tampa Electric’s plant constituted an ‘uncontrolled release’ within the meaning of the definition’s first sentence.” The Court agreed with Tampa Electric and the Review Commission, holding that Tampa Electric’s “response to [the ammonia release] wasn’t an ‘emergency response,’ and the HAZWOPER standard didn’t apply.” Accordingly, the Eleventh Circuit denied OSHA’s petition for review and affirmed OSHRC’s order vacating the citation.

The Eleventh Circuit opinion demonstrates how federal courts are giving less weight to Agency interpretations and reigning in federal OSHA’s aggressive enforcement positions and over-extensions of the regulations. The Court cited Kisor v. Wilkie, 139 S. Ct. 2400, 2415–16 (2019), signaling the Circuit’s continued deviation from providing Chevron deference to an Agency interpretation. Employers should track developments in OSHA litigation, and work with Seyfarth’s Workplace Safety & Environmental team to ensure that they have limited all relevant liabilities.

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

Seyfarth Synopsis: On June 28, 2022, OSHA announced publication of an Advance Notice of Proposed Rulemaking (“ANPRM”) regarding potential revisions to the Agency’s lead standards, lowering permissible blood lead levels.

OSHA’s ANPRM concerning the point at which Blood Lead Levels (“BLLs”) require medical removal seeks public comment on reducing those levels across both the Agency’s general industry (29 CFR 1910.1025) and construction (29 CFR 1926.62) lead standards. The Centers for Disease Control and Prevention have published studies suggesting that the current OSHA Permissible Exposure Limit (“PEL”) for lead may be too high to protect against certain health effects.  Accordingly, OSHA asserts in its ANPRM that this regulatory activity is

based on medical findings since the issuance of OSHA’s lead standards that adverse health effects in adults can occur at [BLLs] . . . lower than the medical removal level . . . and lower than the level required under current standards for an employee to return to their former job status.

Lead exposure can result in “adverse health effects, including but not limited to effects on the reproductive, cardiovascular, neurological, respiratory, and immune systems.” To gather information in an effort to address these negative impacts, the ANPRM seeks input from employers on

OSHA’s triggers for medical removal of workers with elevated BLLs and their return to lead-exposed work; OSHA’s requirements for medical surveillance and management of lead-exposed employees; several additional provisions and compliance protocols that are undergoing public review in State Plans’ ongoing work to update their occupational lead standards; and the costs and effectiveness of lead exposure identification and control strategies.

Agencies issue ANPRM’s before developing more robust proposed rules, so OSHA is early in this rulemaking process. Nonetheless, employers should consider commenting now to ensure they can influence the substantive rulemaking process by making their voices heard. Interested employers have until August 29, 2022 to submit their comments online.

Our previous blog, OSHA “Launches” Rulemaking to Significantly Update and Massively Increase the Number of Chemicals with Permissible Exposure Limits described an Obama-era effort to reduce exposures to hazardous chemicals at work by modernizing OSHA PELs, many of which dated to the passage of the OSH Act in 1971, but that effort did not result in different BLLs, nor did it ultimately come to fruition. OSHA has engaged in other relatively recent PEL battles, including concerning its silica and beryllium standards (see, e.g., Seyfarth blog entries here, here, and here), and we can expect similar conversations to take place regarding the need to protect employees from the adverse health effects of lead exposure as the lead rulemaking progresses.

Please connect with your Seyfarth attorney with questions regarding this or any other workplace safety and environmental issues you may have.

By Brent I. Clark, Adam R. Young, A. Scott Hecker, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: We recently blogged that Silica is the New Asbestos: New OSHA Regional Emphasis Program Will Target Respirable Silica Hazards in Six States. Now the federal Mine Safety and Health Administration (MSHA) has launched an enforcement initiative to better protect miners from health hazards resulting from repeated overexposure to respirable crystalline silica.

Crystalline silica is a common mineral found in the earth’s crust. Materials like sand, stone, concrete and mortar contain crystalline silica. Respirable crystalline silica – minute particles at least 100 times smaller than ordinary beach sand – becomes airborne during cutting, sawing, grinding, drilling, and crushing stone and rock.

Without proper protections and engineering controls in place, miners can be exposed to dangerous levels of crystalline silica particles, which increases their risk of developing serious silica-related diseases. These conditions include incurable lung diseases such as coal workers’ pneumoconiosis, commonly referred to as “black lung;” progressive massive fibrosis, the most severe form of black lung; silicosis; lung and other cancers; chronic obstructive pulmonary disease; and kidney disease.  MSHA news release, June 8, 2022.

MSHA Assistant Secretary Chris Williamson indicated that MSHA is “committed to using every tool in MSHA’s toolbox to protect miners from developing debilitating and deadly lung diseases that are entirely preventable. We have seen too many miners carrying oxygen tanks and struggling to breathe just to take a few steps or do the simplest of tasks after having their lungs destroyed by toxic levels of respirable dust.”

As part of the program, MSHA “will conduct silica dust-related mine inspections and expand silica sampling at mines, while providing mine operators with compliance assistance and best practices to limit miners’ exposure to silica dust.”

Accordingly, employers should be prepared for more MSHA inspections related to silica.

We have previously blogged on this important topic, e.g.: OSHA Issues FAQs for General Industry for Crystalline Silica Standard; OSHA Enforcement Memo for Crystalline Silica Standard in General Industry and Maritime; OSHA Publishes Crystalline Silica Standards Rule Fact Sheets for Construction; Circuit Court Finds OSHA Failed to Adequately Explain the Crystalline Silica Standards Rule; and OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards.

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, Mark A. Lies, Brent I. Clark, James L. Curtis, Patrick D. Joyce, A. Scott Hecker, and Melissa A. Ortega

Seyfarth Synopsis: The Occupational Safety and Health Review Commission’s Summit decision limits enforcement against controlling employers and defines secondary safety roles.

The Multi-Employer Worksite Doctrine allows the Occupational Safety and Health Administration (OSHA) to extend liability beyond an employee’s employer to general contractors, host employers, staffing agencies, and anyone else who can be conceivably related to an employee accident or alleged hazard. In Secretary of Labor v. Suncor Energy (U.S.A.) Inc., OSHRC Docket No. 13-0900, which we previously reported in 2019, the Occupational Safety and Health Review Commission (the “Commission”) issued a significant decision reining in OSHA’s “scattershot approach” to cite all employers at a worksite. Now, the Commission has issued an additional decision, guiding employers on how to avoid “controlling employer” liability.

In Secretary of Labor v. Summit Contracting Group, Inc., OSHRC Docket No. 18-1451, the Commission held Summit lacked knowledge the subcontractors at its worksite were not using fall protection, even though the violative condition was in “plain view.” The Commission found that Summit exercised the reasonable care required of a controlling employer, finding that Summit was operating in a “secondary safety role.”

Multi-Employer Worksite Doctrine

Under Review Commission precedent, including Suncor, a controlling employer (e.g., a general contractor) may be held liable for the violations committed by employees of other employers at worksites where the controlling employer could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.

If a controlling employer has actual knowledge of a subcontractor’s violation, the controlling employer has a duty to take reasonable measures to ensure the subcontractor abates or corrects the violation. In the absence of actual knowledge, the Commission looks to whether the controlling employer has “constructive knowledge,” and met its obligation to exercise reasonable care, i.e., to take reasonable measures to prevent or detect the violative conditions. The Commission assesses the nature, location, and duration of the violative conditions, as well as objective factors relating to the controlling employer’s role at the worksite and its relationship with other onsite employers. A controlling employer’s duty to exercise reasonable care is less than what is required of an employer with respect to protecting its own employees. The Commission takes into account that the controlling employer has a “secondary safety role” at the worksite.

Facts of Summit Case

Summit was the general contractor at a multi-family project in Ponte Vedra, Florida. Summit contracted certain work on the project to Gunner Houston, Ltd. Gunner Houston hired three subcontractors to perform the work. The three subcontractors did not have a direct contractual relationship with Summit.

In April 2017, an OSHA compliance officer inspected the worksite and observed employees of the three subcontractors working without fall protection while exposed to falls ranging from 12 to 34 feet. Neither Summit’s nor Gunner’s employees were exposed to fall hazards. Following the inspection, OSHA issued Summit a one-item citation under the multi-employer worksite doctrine alleging that Summit was the “controlling employer” liable for the three subcontractors’ failure to use fall protection.

Commission’s Reversal and Decision

On review, Summit argued that:

(1) the Secretary’s multi-employer citation policy and Commission precedent were invalid in the Eleventh Circuit, an argument the Commission rejected; and

(2) the ALJ erred in finding that Summit, as a controlling employer, had constructive knowledge of the violative conditions.

The Commission agreed with the ALJ that the only Summit employees at the worksite at the time of the inspection, the superintendent and assistant site superintendent, lacked actual knowledge of the subcontractors’ failure to use fall protection. The Commission, however, disagreed with the ALJ’s finding that Summit had constructive knowledge. The ALJ reasoned that, with the exercise of reasonable diligence, Summit’s superintendents could have uncovered these violative conditions because they were in plain view. The ALJ also found that Summit’s worksite inspections were inadequate in light of the company’s awareness that fall protection violations had previously occurred at this worksite.

The Commission analyzed whether Summit, the controlling employer, satisfied its duty of reasonable diligence and ultimately found that the Secretary did not establish that Summit failed to exercise the reasonable care required of a controlling employer in the secondary safety role and, therefore, failed to meet its burden of proving employer knowledge.

First, the Commission found that although the compliance officer was able to observe the violative condition from the ground level, the condition only existed for 10-15 minutes. The Commission reasoned that in order for Summit to observe the violative condition within this limited timeframe, it would have had to monitor the subcontractors continuously, something the Commission has never required, even of an exposing employer.

Second, the Commission found that the record lacked sufficient evidence to establish that Summit’s monitoring of the subcontractors was inadequate. The record showed that two superintendents conducted daily walkarounds at the site to check on progress and correct safety violations. In addition, Summit hired safety consultants to conduct monthly inspections and document safety violations at the worksite. The Commission found these monitoring activities adequate.

Interestingly, citing Suncor, the Commission found that Summit’s reliance on Gunner Houston and the subcontractors to ensure the safety of their own employees was not unreasonable. The Commission noted that Summit was aware of Gunner Houston’s safety record because it had hired Gunner Houston as its contractor on every one of its jobs for the past eight years. Gunner Houston had its own safety consultant, utilized its own fall protection plan, held safety meetings with its subcontractors’ employees, provided fall protection training to those employees, and had its own superintendents conduct safety inspections at the worksite. Lastly, Summit had a contractual relationship with Gunner Houston, not the subcontractors. Accordingly, Summit’s reliance on Gunner Houston and the subcontractors was not unreasonable.

Lastly, the Commission rejected the Secretary’s argument that Summit’s inspection practices were inadequate because it was aware that the subcontractors had previously failed to use fall protection at the worksite via a report by Summit’s safety consultant. In rejecting the Secretary’s argument, the Commission found that there was no evidence in the record regarding what measures Gunner Houston and the subcontractors took to correct the violations found in the safety consultant’s report, and therefore, it could not conclude that Summit’s response was inadequate given its secondary safety role at the worksite.

Employer Takeaway

Host employers and general contractors can argue they do not have constructive knowledge of violative conditions committed by subcontractors so long as these employers and general contractors exercise reasonable care to discover the conditions. Further, the host employer has a secondary safety role at the worksite and is not held to the same duty of care and inquiry as an exposing employer such as the contractor or subcontractors. Host employers can conduct less frequent inspections and reasonably rely on a contractor if the contractor has a demonstrated history of compliance and sound safety practices.

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

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

Seyfarth Synopsis: On May 25, 2022, Douglas Parker, Assistant Secretary for the U.S. Department of Labor’s Occupational Safety and Health Administration, testified before the U.S. House Committee on Education and Labor’s Workforce Protections Subcommittee regarding his vision for the Agency and the status of its operations.

Assistant Secretary Parker’s written statement, submitted to the Workforce Protections Subcommittee ahead of his live testimony, asserted that “COVID-19 has been the occupational health issue of our time,” and noted a number of irons OSHA has in the COVID fire, including “working to finalize a permanent COVID-19 standard to ensure health care workers are protected as long as COVID-19 is a threat.”  Even absent a permanent standard, Assistant Secretary Parker trumpeted OSHA’s “1,826 COVID-19 related inspections in health care facilities, with an additional 701 inspections conducted by State Plans,” and cited OSHA’s March launch of “a COVID-19 enforcement initiative focusing on evaluating and ensuring the readiness of hospitals and skilled nursing care facilities to protect workers in the event of surges in COVID-19 patients.”  Employers should stay wary, as OSHA continues to pursue COVID-related enforcement.  See our previous blog, COVID-19 “Endemic” is Not Over: OSHA is Opening New COVID-19 Programmed Inspections, for more on OSHA’s efforts.

During his hearing testimony, Assistant Secretary Parker identified developing an infectious disease standard for high-risk workplaces as a priority, suggesting that had one been in place prior to the pandemic, “OSHA would have been in a better position to address COVID.”  Assistant Secretary Parker, formerly the head of Cal/OSHA, highlighted that State’s regulation addressing Aerosol Transmissible Diseases as resource that helped California implement its pandemic response.  Acknowledging the standard is not perfect, he nonetheless argued that “it certainly put California in a better position to be able to enforce basic infectious disease controls because of the existence of the standard.”  While the Obama Administration proposed an infectious disease standard in 2010, the rulemaking lay fallow throughout President Trump’s term as Commander in Chief.

Speaking of fallow rules, employers may be happy to hear that OSHA is not planning to propose a permanent COVID-19 vaccinate or test regulation similar to the emergency temporary standard stayed by the U.S. Supreme Court on January 13, 2022.

Beyond COVID and other infectious diseases, OSHA anticipates rules concerning, among other issues: workplace violence in health care, heat hazards, and recordkeeping.  We blogged about Vice President Kamala Harris’s April announcement of OSHA’s National Emphasis Program concerning indoor and outdoor heat illness.  OSHA’s rulemakings trundle on in various stages, and some may not see the light of day for years, if ever, but employers should stay aware of where these regulatory processes stand to remain cognizant of potentially-shifting obligations.

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

Seyfarth Synopsis: Federal OSHA is rolling out an aggressive COVID-19 enforcement program to inspect “high hazard” employers, as well as re-inspect those healthcare employers who have received COVID-19 complaints in the past. 

In March 2022 at the ABA OSHA conference, OSHA enforcement leadership publicly declared the “COVID-19 endemic” to be federal OSHA’s #1 enforcement priority for 2022. We have documented the agency’s continued mission creep to target hospitals and protect healthcare employees during the COVID-19 pandemic. Of course, OSHA cannot lawfully merely select hospitals and open inspections to ensure COVID-19 compliance. The Agency must have a complaint, injury/illness report, or other “neutral” basis upon which to inspect a facility.

OSHA has been rolling out inspections under its National Emphasis Program (NEP) for COVID-19 since July 2021. These inspections target certain “high hazard” industries, including health care, nursing care, manufacturing, warehousing, and meat processing. Each OSHA area office has allegedly dedicated at least 15% of its enforcement resources to programmed COVID-19 inspections. Based on the figures we are hearing at the Area Office level and our clients’ open inspections, we estimate that hundreds of these inspections are being performed by OSHA across the country, on top of the many COVID-19 inspections performed in OSHA state plan states.

On March 2, 2022, OSHA issued a COVID-19 Focused Inspection Initiative in Healthcare to supplement its COVID-19 NEP inspections. The memorandum provides instructions to Federal OSHA Area Offices for a focused, short-term inspection initiative directed at hospitals and skilled nursing care facilities that treat COVID-19 patients. OSHA’s stated goal in the Initiative is to mitigate the spread of COVID-19 and future variants, and ensure the health and safety of healthcare workers at heightened risk for contracting the virus. Through the Initiative, OSHA plans to assess employer compliance efforts, including the readiness of hospitals and skilled nursing care employers to address any ongoing or future COVID-19 surges.

For this initiative, federal OSHA assembled a list of every healthcare and nursing establishment that has received a complaint letter since March 2020. OSHA then has been using an algorithm to randomly select employers from this list.  Employers have been surprised to have OSHA CSHOs opening inspections and explaining that the inspections are occurring based on allegations closed out more than two years ago! Employers should be aware that these inspections may be opened under the OSHA COVID-19 NEP and Focused Inspection Initiative, and they may need to take action to consult with counsel to ensure that the inspection is proceeding lawfully.

Employers always have the option of requiring OSHA to seek a search warrant and then enforce the warrant in federal court. In a warrant action, Tenet Healthcare challenged the enforceability of the COVID-19 NEP in federal court in Lubbock.  The Court did not grant a Temporary Restraining Order against the OSHA inspection and Tenet later withdrew its complaint. Accordingly, the limited case law demonstrates the challenges with an aggressive litigation strategy.

Employers, particularly in health care, should prepare for ongoing OSHA inspections relating to COVID-19. For employers preparing to defend OSHA inspections, we recommend reviewing compliance with record-keeping obligations, including OSHA Form 300 logs and COVID-19 logs where applicable.  If OSHA does come onsite, a designated point person should be professional when OSHA arrives, sit the OSHA compliance officer down in a conference room, and learn the scope of the inspection. Employers should confirm that OSHA has a lawful, neutral basis for the inspection, and consult with outside counsel to ensure the employer’s company is protected. OSHA inspection management is about focus and control, and keeping the inspection limited in scope. Consult qualified outside counsel if there are any questions relating to the OSHA inspection.

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

Seyfarth Synopsis: A manufacturer was issued a “willful citation” for failure to correct a machine guarding deficiency identified in a previous audit.

After the amputation, OSHA conducted an injury investigation into the Pennsylvania company’s industrial facility. OSHA uncovered that the Company had previously identified a machine guarding deficiency, but kept the machine operational and did not repair the deficiency prior to the amputation incident.

According to its press releases, OSHA determined that the “injured worker’s left hand and arm were caught and pulled into the rotating drums of the machine while loading brick pieces into it. OSHA found the company failed to provide guarding to prevent employees from having any part of their body in the danger zone during operation.” Additionally, OSHA found, the hazard was identified during previous periodic inspections of the machine by the employer, but repairs were never made.

The company was cited for 11 safety violations – including one willful and eight serious – following an investigation. OSHA proposed $108,769 in penalties for the violations.

As a reminder to employers, this case provides three lessons to employers —

  1. Take prompt action to address safety and health issues identified during internal audits and inspections.
  2. Consider conducting safety audits and inspections under attorney client privilege to protect audits from production to OSHA in a subsequent inspection.
  3. OSHA issued an accusatory and damaging press release, Be ready to respond to OSHA’s press releases with your own, to strategically rebut unfounded allegations. Please see our article on responding to OSHA press releases.

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 Jeryl L. Olson, Rebecca A. Davis, Patrick D. Joyce, Scott T. Fenton, Jose Almanzar, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: United States Environmental Protection Agency (USEPA) Administrator Michael S. Regan and Attorney General Merrick B. Garland announced the Department of Justice’s (DOJ) comprehensive enforcement strategy to advance environmental justice. USEPA and DOJ believe they have developed a strategy that positions the Biden Administration to leverage all available legal tools to secure protections for communities that have been negatively affected by pollution and environmental injustices. The Administration is restoring Supplemental Environmental Projects (SEPs), which EPA’s enforcement program previously used to provide environmental and/or public health benefits to communities harmed by environmental violations. 

The new enforcement strategy arises out of President Biden’s “Executive Order on Tackling the Climate Crisis at Home and Abroad,” which sets out the Administration’s priorities regarding securing environmental justice and spurring economic opportunity. The Executive Order also creates a “White House Environmental Justice Interagency Council” that is tasked with developing a “strategy to address current and historic environmental injustice by consulting with” the “White House Environmental Justice Advisory Council,” which was created through the same Executive Order, and with local environmental justice leaders.” Development of a comprehensive environmental justice enforcement strategy is another priority set out in the Executive Order.

USEPA and the DOJ engaged in listening sessions with impacted communities and other stakeholders to develop the strategy. In the past, SEPs were used in USEPA settlements to support projects that designed to bring benefits to environmental justice communities, including:

(i) projects to abate lead paint hazards in housing or provide blood lead level analyzers to community health clinics;

(ii) installation of enhanced air filtration systems at schools in heavily industrialized areas;

(iii) projects to enhance the emergency response capabilities of local fire departments or hazardous emergency response teams, and

(iv) installation and operation of a fence line monitoring system.

SEPs are considered in accordance with USEPA’s SEP Policy, which ensures there is a sufficient connection between the SEP and the actual or alleged violation. The SEP Policy allows USEPA to provide monetary penalty relief, just as USEPA has discretion to consider a defendant’s good faith and cooperation when deciding on a penalty and other terms of a settlement.

USEPA and the DOJ will use SEPs as a case settlement tool at the discretion of the Attorney General and subject to guidelines and limitations set forth in a memorandum released earlier this week. The Attorney General notes in the memorandum that, when used appropriately, SEPs “allow the government to more fully compensate victims, remedy harm, and punish and deter future violations,” particularly in cases involving harms to communities affected by environmental crimes. The DOJ’s Environment and Natural Resources Division (ENRD) is being asked by the Attorney General to employ the following non-exhaustive list of guidelines and limitations for settlement agreements involving SEPs :

  • Settlement agreements must define – with particularity – the nature and scope of the projects that a defendant has agreed to fund;
  • Any SEPs must have a “strong connection” to the federal law violation at issue, the project(s) “must be consistent with the underlying statute being enforced” and should “advance at least one of the objectives of that statute”;
  • To the extent feasible, the SEP “should be designed to reduce the detrimental effects of the underlying violation” and discourage recidivism;
  • The DOJ or its client federal agencies will not provide recommendations for third-party non-governmental organizations to receive payments to implement any particular project and will not propose specific entities to be beneficiaries of any such project. However, the DOJ and its client agencies can specify the “type of entity” to benefit from a SEP; and
  • Settlements involving SEPs cannot provide the DOJ or any federal agency with additional resources to perform activities for which appropriations have been made.

The DOJ also announced the creation of the first-ever Office of Environmental Justice within ENRD, which will be used to implement the new comprehensive enforcement strategy.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.

By David Malter, CIH, CSP, CPEA, ROH (Guest Author), Adam R. Young, Mark A. Lies, and Craig B. Simonsen

Seyfarth Synopsis: In a new journal article from the Centers for Disease Control and Prevention’s (CDC), National Institute for Occupational Safety and Health (NIOSH), and the Bacterial Special Pathogens Branch, researchers have identified specific cases of  a deadly occupational disease, welder’s anthrax.

According to CDC, welder’s anthrax is a bacterial infection that results in severe pneumonia.  The disease was caused by bacteria within the B. cereus group that produces anthrax toxin; these bacteria thrive in lungs affected by welding fumes and iron deposits.  The disease has been identified in welders and metalworkers, all of whom were men with a median age of 39 years. The majority of cases have been identified in southern states.  As a percentage of welders, the number of identified cases is still rare.

The CDC suggests, as with all other safety and health hazards, employers should use the standard hierarchy of controls to prevent workplace exposure to welding fumes and gases and soils that may be contaminated with B. cereus group bacteria producing anthrax toxins.  This would include elimination of exposure to welding fumes where possible, then employing respiratory protection for employees welding.

Federal OSHA does not have an enforcement position yet requiring N95 or better masks for all employees performing welding tasks.  However, with this new study, we may see OSHA define all iron welding to create a hazardous atmosphere, for which employees performing welding or working the vicinity would be required to both wear N95 or better masks and be part of a respiratory protection program, which would include medical evaluations, fit tests, PPE training.  Seyfarth attorneys will be tracking OSHA publications to learn if the enforcement position changes.

Image from CDC.

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 Ilana Morady, Patrick D. Joyce, and Coby Turner

Seyfarth Synopsis: On April 21, 2022, the Cal/OSHA Standards Board (“Board”) voted 6-1 to approve a third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”). The revised ETS will likely go into effect the first week of May and will expire on December 31, 2022.

Background

As we previously blogged, the first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption, which is currently in effect is set to expire on May 6, 2022. Normally, an emergency regulation can only be readopted twice, but by Executive Order, a third readoption of the COVID-19 ETS is permitted so long as it does not extend beyond December 31, 2022.

Now that the Board has voted to approve the third readoption, which is substantively identical to the proposed rule Cal/OSHA published several weeks ago, the revised ETS will go into effect once the Office of Administrative Law completes its review and files with the Secretary of State, likely by the first week in May.

Highlights of the Revised ETS

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and remove some requirements. Cal/OSHA has said that updated guidance in the form of FAQs is forthcoming. In the meantime, highlights of the revised ETS include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employee recently recovered from COVID-19 (see below).
    • Providing Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees (regardless of vaccination status) are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required, but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts(note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

Workplace Solutions

Stay tuned for updated guidance and developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy