Nevada’s sunny and hot summers pose hazards of heat-related illnesses to outdoor workers and non-climate-controlled indoor workers. April 29, 2025 marks a significant milestone for workplace safety in Nevada as the Nevada Occupational Safety and Health Administration (NV OSHA) begins enforcement of its newly adopted heat illness prevention regulation. The regulation, found in Section 618 of the Nevada Administrative Code and approved in November 2024, aims to protect workers from the dangers of heat-related illnesses.

Background

Federal OSHA, which regulates private employers in 27 states, has no heat illness regulations. In the absence of a federal standard, many state plans and state legislatures have issued their own regulations. Starting in the mid-2000s, states began regulating heat illness hazards, focusing mostly on outdoor and agricultural workers. California’s § 3395—Heat Illness Prevention in Outdoor Places of Employment—effective in 2005 as an emergency rule, was one of the first regulatory efforts to protect employees from heat-related illnesses, such as heat cramps, heat exhaustion, and heat stroke. Federal OSHA issued guidance and joined the discussion in 2011, such as through its “Water. Rest. Shade.” Heat illness prevention campaign. Since that time, several other states have implemented regulations addressed at outdoor and indoor heat illness:

  • California (§3396) – effective 2024, regulating indoor worksites.
  • Colorado – effective 2022, regulating agricultural workers.
  • Maryland – effective 2024, regulating indoor and outdoor worksites.
  • Minnesota – effective 2014, regulating indoor worksites.
  • Oregon – effective 2022, regulating indoor and outdoor worksites.
  • Washington – effective 2023, regulating outdoor worksites.

In 2021, federal OSHA initiated a rulemaking to develop an indoor and outdoor heat illness standard. Federal OSHA published draft regulatory language in the Federal Register on August 30, 2024. As of the publication of this Alert, the federal OSHA heat illness prevention rulemaking is still ongoing.

NV OSHA started its own rulemaking in 2023, finding that heat illness poses serious risks to workers in the State, especially those in outdoor and non-climate-controlled indoor environments. According to NV OSHA, the state developed its heat illness regulations in response to a dramatic increase in heat-related complaints, with 467 complaints filed through September 2024, compared to 344 in 2021.

Nevada’s new rules were approved by the Legislative Commission on November 15, 2024. Nevada OSHA issued guidance on January 29, 2025, indicating it would begin enforcement on April 29, 2025.

Key Requirements for Nevada Businesses

The regulation applies to businesses with more than 10 employees in the State of Nevada and includes several critical measures:

1. Job Hazard Analysis (JHA): Employers must prepare a one-time JHA to identify job classifications and tasks where employees are exposed to heat for more than 30 minutes in any 60-minute period, excluding breaks.

  • The JHA should include measures to mitigate or eliminate the identified heat illness hazard, which can be done through engineering controls, administrative controls, and/or personal protective equipment.
  • NV OSHA encourages employers to adopt acclimatization protocols for new or returning workers, but acclimatization is not required.
  • The employer must update its JHA if the job duties materially change or if there is a heat-related incident at the worksite.

2. Written Safety Program: If the JHA identifies heat-related risks, employers must develop a written safety program that includes:

  • Provision of potable water
  • Rest breaks for employees showing signs of heat illness
  • Means of cooling for employees, including air conditioning, increased ventilation, cooling fans, shields for radiant heat, shade, etc.
  • Monitoring of working conditions by a designated person
  • Identification and mitigation of processes generating additional heat or humidity
  • Training for employees on recognizing and minimizing heat illness hazards
  • Emergency procedures for contacting medical services

3. Training: Employers must train employees on how to recognize heat illness hazards and the procedures to minimize risks. Employers should also inform employees about the health risk factors that could exacerbate heat illness, such as certain health conditions, medications, and drug or alcohol use.

4. Emergency Procedures: Designation of an individual responsible for contacting emergency services if an employee exhibits signs of heat illness.

Exemptions

The regulation does not apply to employers with 10 or fewer employees in the State unless the employer is engaged in the manufacture of explosives. The regulation also does not apply to employees working in climate-controlled environments, including vehicles with functioning air conditioning. However, if the climate control system fails, employers must make a good faith effort to restore it as soon as practicable.

Collective Bargaining Agreements

Employers can exceed the requirements of the regulation on their own or through collective bargaining agreements. Collective bargaining agreements cannot waive or reduce the requirements of the regulation.

Other States Propose Regulations

While the 2024-2025 legislative session has provided more than a dozen proposed heat illness-related laws and regulations that employers should keep an eye on, many of them have stalled-out or failed to meet internal legislative deadlines. New laws or regulations have been proposed in:

  • Arizona (stalled)
  • Colorado (failed)
  • Connecticut
  • Florida (stalled)
  • Georgia (stalled)
  • Illinois
  • Kentucky (stalled)
  • Massachusetts (2 proposals)
  • North Carolina (stalled)
  • New Jersey (stalled)
  • New Mexico
  • New York (stalled)
  • Rhode Island
  • Texas (stalled)
  • Virginia (failed)

Even though many of these proposed laws and regulations have stalled or failed, the large number of proposals is a marked change from prior legislative sessions, indicating the willingness of individual states to go above and beyond federal OSHA requirements. Feel free to reach out if you need further details or assistance with specific aspects of the current heat illness prevention landscape.

The final day of the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting began with a panel discussion on mental health, behavioral issues, and workplace violence. Many employers and practitioners have observed state plans making significant efforts to develop and implement workplace violence prevention plans. For example, California’s prevention plan requirements for general industry went into effect on July 1, 2024. Other states, like New Jersey with its panic device laws and New York with its Retail Worker Safety Act, are developing new laws for workplace violence safety in specific areas, industries, or workplaces.

With acts of violence being the third highest form of occupational workplace injuries, the crux of the panel’s discussion centered on workplace behavior and how employer and employee training can further develop a safe workplace culture. The panel discussed an interesting case involving a mall shooting by a patron in an open-carry state. The mall prohibited firearms, mall security informed the patron multiple times that he could not carry the weapon within the mall, and, after being asked to leave, he left without issue or threat each time. Unfortunately, the final time, he engaged in a violent act. Ultimately, the ALJ found that a shooting by the patron could not be cited as a workplace violence hazard under the general duty clause. A key point in this case involved foreseeability, which the ALJ determined was not truly present with respect to the employer’s liability. Thus, according to the ALJ, citing an employer for the hazard posed by a mass shooter is beyond the scope of the agency’s authority under the OSH Act.

Although the ALJ’s decision is favorable for employers, providing support against citations for unforeseeable and criminal acts, this case raises some hypotheticals for employers to consider, such as the interplay and balance with potential discrimination lawsuits. The panel highlighted that while risk management groups should proactively identify and develop steps to address potential violence within the workplace, they must carefully implement any plans in a non-discriminatory manner to avoid transitioning from an OSHA citation to civil litigation.

After the panel concluded its discussion on workplace violence issues, we took a trip down memory lane to our law school days. However, instead of a mock trial, we observed a mock inspection featuring a non-employee third party attempting to gain access to a worksite on behalf of a union. This demonstration showcased the benefits, strategies, and concerns related to the new walkaround rule.

As many are now familiar, OSHA’s walkaround rule expands the definition of “authorized representatives” to specifically include non-employee third parties, such as union organizers, if good cause can be shown for their necessity in conducting a thorough and effective workplace inspection. Despite ongoing litigation challenging the rule as arbitrary, capricious, and unconstitutional, it remains the law for employers.

As we’ve emphasized from Day 1, with the shift in presidential administrations, there is a possibility the walkaround rule could change, potentially being stripped away. However, for all intents and purposes, the rule is currently in place and enforceable.

The mock inspection, although comedic, emphasized some unique considerations, including potential impermissible advance notice to non-employee third parties, as well as strategic decisions on whether to proceed with the inspection or require the agency to seek a warrant. While no one is sure whether this rule may be subjected to a federal rollback, until that day comes, employers and practitioners have a lot to consider while it remains effective.

After a short break, we reconvened for another panel discussion on employee complaints, injuries, and return to work. This discussion focused on avoiding discrimination, particularly concerning workers’ compensation claims and disabilities in the context of workplace injuries. The panel highlighted that both employers and employees benefit from extensive documentation. Several examples of documentation were noted during the discussion, such as workers’ compensation forms be provided immediately upon notice of a potential workplace injury, as well as documents reflecting the interactive process for employees seeking to return to work or obtain accommodations for a workplace injury.

From an employer’s perspective, the big picture question was, “How do we make the carrot more approachable than the stick?” There is no question that employers want employees to come forward with concerns over workplace safety, but realistically, not every employee may feel comfortable or trustful when approaching management. More specifically, some employees may have the belief that they may face potential consequences for reporting an issue. The consensus of the panel was that the relationship between employers and employees is a foundational building block for promoting safety policies. This relationship encourages continual reporting to management and fosters an ongoing dialogue on ways to improve the workplace.

The conference’s final session of the day concluded with a panel discussion on the challenges associated with attorney-client privilege and risk assessments. Employers and practitioners recognize the ongoing need to conduct internal audits and risk assessments to promote and develop safe workplaces. While there are several benefits to conducting internal safety and health audits and risk assessments, the documentation associated with these efforts could also serve as a potential roadmap for OSHA citations.

From a benefits perspective, aside from the obvious identification of hazards and risks to protect employees, there is the ability to promptly address and mitigate these hazards before they result in injury or citation. Additionally, these audits can be used proactively to demonstrate to OSHA that the company addresses safety issues and has effective safety programs. Lastly, should a citation arise, the audits can support defenses, such as the lack of employer knowledge, by showing that ample steps were taken to identify all cognizable hazards.

However, with every benefit, there are associated risks. For example, if audit recommendations have not been addressed when an incident or inspection occurs, the audit could be used as a roadmap, highlighting knowledge of a hazard that was not addressed. Furthermore, statements made in the audit or risk assessment reports could be used as admissions in litigation.

Thus, the panel’s discussion emphasized the importance of considering performing these types of assessments under attorney-client privilege, particularly while efforts to address findings are underway. The key takeaway from a privileged assessment is its purpose: providing legal advice. From an ethical standpoint, attorneys for the employer, whether in-house or outside counsel, need to be mindful of applicable ethical rules, such as confidentiality. While a privileged assessment will need to be implemented and some degree of information will need to be shared with the company at large, the panel recommends clearly separating confidential documents, being specific with the information conveyed to the company, and securing a system and process to maintain documents and information shared under the applicable privileges.

The decision to conduct these assessments under privilege is a critical consideration for any employer. It is vital to ensure that everyone involved understands how the audit process, its findings, and, most importantly, the legal advice are shared and the manner in which they are shared. We thank the ABA for hosting another great conference and we look forward to returning to next year’s Midwinter Meeting in 2026.

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Rancho Mirage, California. The meeting includes representatives from management, labor, and safety professionals, some who previously worked in government.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Rancho Mirage, California. On Thursday, March 6, the conference focused on current hot topics, discovery issues during litigation, jurisdictional issues, and ergonomic compliance.

Day two kicked off with a panel discussion on current hot topics related to workplace hazards, rulemaking, and Executive Orders. The panel also took a deep dive into the current state of the proposed federal heat regulation.

The discussion began with recent nominations and Executive Orders, including the current regulatory freeze pending review. This directive instructs agencies to halt the proposal or issuance of any new rules until they can be reviewed and approved by a department or agency head appointed or designated by the President. As noted in our blog post yesterday, the reasonable expectation of this administration is that far less rulemaking will occur. The recent Executive Order reinforces this expectation, and, with OSHRC not being a notable priority, it is anticipated that OSHA’s and MSHA’s rulemaking may face setbacks. One interesting and important rule in the spotlight is OSHA’s heat regulation. Notably, OSHA’s National Emphasis Program was set to expire next month, April 2025, but has been extended for an additional year. This extension comes as questions still arise about the future of the current proposed rule.

Regarding the proposed heat regulation itself, many California employers and practitioners have compared the federal draft standard’s requirements to Cal/OSHA’s mandate for Injury and Illness Prevention Programs (IIPP). As many have observed, citations based on missing elements in IIPPs are the number one cited violation by Cal/OSHA. The federal standard’s requirements may also likely lead to frequent citations. Moreover, the federal draft standard mandates employee consultation. This, in conjunction with the walkaround rule, is a ripe area for interference from labor. As it stands, little guidance has been provided on how employers can satisfy the consultation prong of the proposed standard. Lastly, the proposed requirement of “heat safety coordinators” is likely to place a significant burden on employers, especially smaller companies, as the rule does not clarify whether a coordinator can perform other jobs or must solely fulfill the coordinator role. This may necessitate further hiring to ensure compliance with the rule.

This leaves us and many others likely wondering, “What’s next?” Currently, informal public hearings will commence on June 16, 2025, with additional days as needed. This includes and requires a Notice of Intent to Appear to be submitted by May 5, 2025, and if testimony will exceed 10 minutes, commentators must provide written testimony plus any documents to be used by May 23, 2025. Once the hearing has concluded, employers and practitioners can still submit post-hearing written comments and legal briefs. We will be keeping an eye on this proposed regulation and continue to provide updates as the rulemaking process continues.

After the first panel concluded detailing what lies ahead for federal heat regulation, a separate panel took the stage to address discovery in OSHA matters. A common theme observed by the panel was OSHA’s use of subpoenas. From a government perspective, OSHA’s increased use of subpoenas is designed to quickly obtain relevant documents related to inspections, even for matters that may not appear complex at first glance. While the increased use of subpoenas may become a new standard procedure, it does not seem that OSHA is taking an adversarial approach. The emphasis appears to be on expeditiously gathering information for a swift resolution.

Another notable discovery mechanism discussed was shadowing and videotaping practices and procedures. While the panel noted significant benefits, such as creating testimony of adherence and displaying proper safety procedures, there were also concerns. For example, employers would need to ensure that all safety measures implemented for their employees are also provided to OSHA representatives engaging in shadowing and videotaping (e.g., wearing a hardhat or PPE, watching safety videos prior to entry, etc.). Additionally, the panel noted that shadowing and videotaping could make employees nervous, potentially affecting their usual work environment during these activities.  In a lighthearted moment during this discussion, our group lead, Brent Clark, reconnected with a panelist and his former advisee, former Seyfarth attorney Margaret Sewell, across the conference room.

We also attended a breakout session on who to contact when reporting a workplace safety issue, focusing on jurisdictional issues for employers across various industries, including railways, airspace, and nonemployee injuries. This session highlighted key reporting procedures and timing issues, as well as notable gray areas for employers and practitioners. For example, OSHA applies in rail offices, maintenance shops, and warehouses, but not on-track activities, which fall under the jurisdiction of the Federal Railroad Administration (FRA). Thus, certain questions need to be addressed to determine jurisdiction for proper reporting, such as, “Was the worker engaged in rail operations?” This is crucial as agencies may not fully understand another’s regulatory scope. This may require working closely with an agency like OSHA to ensure it understands how the FRA’s regulatory scheme works and how jurisdiction should be handled.

Similarly, there is a gray area between the Federal Aviation Administration (FAA) and OSHA. While it is understood that accidents in an airport, such as a slip and fall in the terminal or a lockout/tagout issue with baggage machinery, fall under OSHA, a major question is whether the activity constitutes in-flight working conditions. FAA safety rules preempt OSHA for in-flight working conditions, but determining when in-flight working conditions begin can be challenging. This panel discussion served as an important reminder to fully assess workplace injuries and issues to ensure proper reporting procedures are followed, avoiding jurisdictional and timeliness issues.

In a separate breakout session, another panel focused on federal and state changes in the construction industry. The construction-related breakout session discussed unique and upcoming construction-specific regulations in federal OSHA and OSHA state-plans. After a brief discussion of strategies for dealing with the patchwork of construction-related regulations in state-plans—for example, California’s fall protection regulations differ from federal OSHA—a panelist presented the perspective of plaintiff’s counsel with respect to using Cal/OSHA inspection documentation, witnesses, and citations in a personal injury wrongful injury or wrongful death lawsuit.

The second day concluded with a panel discussion on industry-specific ergonomic compliance, including logistics, hospitality, and healthcare. As many are aware, there is currently no national OSHA standard on ergonomics, only the general duty clause. The panel examined state plans that have implemented ergonomic standards to show how certain states have adopted such rules and how these rules may be on the horizon in other states and even at the federal level.

The panel focused on and examined Washington state’s ergonomics legislation, which allows the state plan to implement and conduct rulemaking for one industry each year. Washington’s process for identifying industries to target first was based on the highest injury rates, which for Washington is baggage handlers in the airline industry. A new rule for baggage handlers is anticipated in 2026, with warehouses following the next year. Despite Washington beginning with the airline industry, panelist Elliot Furst, Senior Counsel, Attorney General of Washington Labor and Industries Division, Seattle, WA, noted that the general principles and definitions section should be the same for all future ergonomics rules, irrespective of industry or injury. This suggests that the first set of rules will have ample carryover effects into other industries likely to be subjected to ergonomic rules. If other states follow this rulemaking process, employers in all industries should pay close attention to the first industry targeted and provide comments to preserve their industry-specific interests.

Of significant note, the panel discussed a Washington Industrial Safety and Health Act case in which the Board vacated all four citations, stating that the Department had failed to demonstrate that the hazard was present in any cited work process under the general duty clause, as it relates to ergonomics. The belief is that this matter will eventually reach the Washington Supreme Court, potentially involving a deference issue as discussed in yesterday’s blog post. This case exemplifies the burden of proof required in a general duty clause ergonomics case, further emphasizing the importance and value of rule making in litigation.

With ergonomic regulations either in place or on the horizon, best practices recommend that employers adopt proactive approaches to ergonomics. This includes ongoing training, early reporting and assessment of ergonomics-related injuries, and continuous revisions and improvements tailored to specific industries or work activities. With day two now complete, we look forward to the final day of the conference tomorrow and will provide another update upon the conference’s conclusion.

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Rancho Mirage, California. The meeting includes representatives from management, labor, and safety professionals, some who previously worked in government.

Tuesday, March 4

We are attending the ABA Occupational Safety and Health Law Meeting this week in Rancho Mirage, California. On Tuesday, March 4, the conference focused on the Mine Safety and Health Act, featuring numerous panelists with extensive knowledge of the Mine Safety and Health Administration (MSHA) and associated practice and procedures.

A key development discussed was the future of MSHA under the second Trump administration. This follows President Trump’s recent nomination of Wayne Palmer as the Assistant Secretary for Mine Safety and Health. Palmer is currently part of the Trump transition team within the Department of Labor and most recently served as executive vice president of a D.C.-based trade association representing the industrial minerals industry. Previously, he was a political appointee within MSHA during the first Trump administration, serving as interim Assistant Secretary and Principal Deputy Assistant Secretary.

The afternoon session shifted focus to the breadth of OSHA regulations and enforcement, including the legal basis for OSHA inspections and rights during inspections. The session highlighted the intersectionality of OSHA with other areas of law, such as labor law, privacy law, and whistleblower rights.

Wednesday, March 5, 2025

Today’s session featured a panel of employer and defense attorneys discussing the impact of recent United States Supreme Court decisions touching on subjects relevant to whether the Occupational Safety and Health Review Commission (OSHRC) will continue to function in its current state, as well as what levels of deference judges should give OSHA’s regulatory interpretations.

In the first, the Supreme Court held that the Seventh Amendment’s right to a jury trial applies to certain enforcement actions brought by an agency, making in-house administrative adjudication of such actions unconstitutional. This decision potentially opens the door for future challenges to OSHRC’s (and OSHA ALJs’) constitutionality. This could present numerous challenges for an Article III bench and litigators, such as conducting traditional discovery, educating judges on the applicable framework, and potentially leading to each state developing its own equivalent to OSHA, resulting in varied regulations, procedures, and policies for workplace safety citations.

The panel then discussed the implications ofanotherSupreme Court addressing the law regarding judicial review of administrative action and rulemaking by overturning the longstanding doctrine of “Chevron Deference.” The panel focused on how the decision expands the judiciary’s power to review and reject interpretations of statutes adopted by federal agencies, including OSHA.

With the judiciary’s expanded power, it is anticipated that employers will now be able to significantly challenge new or existing OSHA standards as exceeding OSHA’s authority under the OSH Act. For example, an employer could argue that a particular OSHA standard does not actually advance the health and safety of workers, and therefore exceeds OSHA’s statutory authority. Additionally, the decision is expected to lead to a slight decrease in broad agency action, raise additional issues for litigation, and create less certainty for employers now that agency deference has been significantly weakened, although “Auerdeference” (applicable to regulations) remains intact and prior decisions relying on Chevron deference are not overturned.

Regarding executive agencies, the decision may lead to a potential shift towards more legislative clarity and increased litigation over agency decisions. It may also reduce the authority for rulemaking, requiring more explicit support in the OSH Act for OSHA standards to survive legal challenges. Moreover, the implications may result in slower responses to complex issues as greater involvement from Congress, including further education, would be needed for detailed policymaking. Currently, there is a trend towards agency interpretation and guidance serving an informative and persuasive purpose, rather than being affirmative and binding.

After discussing these recent and other notable Supreme Court cases, a new panel of attorneys presented on what to expect with the recent change in presidential administrations, looking to the past to see what may remain the same and what may change. The panel, which featured former presidential appointees and former government attorneys, provided a historical overview of lessons learned from past presidential transitions and highlighted what practitioners should expect with a change of power, especially now that President Trump’s return to office is still within its pivotal second term’s first 100 days.

A notable point discussed was OSHRC’s role as the new administration implements its plan. Notably, OSHRC’s sole commissioner’s term is set to expire next month in April 2025, meaning OSHRC will be without any commissioner, a rare occurrence. In fact, there has not been a quorum within the Commission for almost two years. This leaves the Commission at risk of essentially withering, especially considering there is no recent news of any appointments in the pipeline. Moreover, with administration’s push to cut spending, the lack of a single Commission is of great concern. Without a Commission, no cases will be directed for review and will simply sit awaiting direction. Currently, 31 cases are waiting to be decided in front of OSHRC.

The panel then delved into how employers, associations, and advocates can be more proactive in creating better workplace safety practices and procedures, which can help reshape OSHA and bring the agency into a more collaborative relationship with those it regulates. With changes in political administration over the years, the agency’s involvement and relationship with those it regulates have gone through ebbs and flows. Regardless of political affiliation, the general consensus is a desire to deepen the relationship between the agency and the regulated body, specifically inviting OSHA to get more involved at an eye-to-eye level, rather than as a direct governing and rulemaking body.

Overall, the reasonable expectation for this current administration, based on President Trump’s first term, is that OSHA likely will not experience significant rulemaking efforts. As history suggests, we can likely expect a greater attempt to roll back recently developed rules in the past four years. In lieu of rulemaking, there is an expectation that the current administration will take a firmer stance on enforcing current rules (aside from those that may be rolled back) and forego adding new regulations. In turn, there is a reasonable expectation that the states will take rulemaking into their own hands.

We will continue to provide updates throughout the week.

Seyfarth Synopsis: On February 11, 2025, President Trump nominated David Keeling as Assistant Secretary of Labor for OSHA, pending Senate confirmation. Keeling, with extensive experience in occupational safety, is expected to adopt a pro-employer stance, contrasting with the Biden Administration’s approach. Anticipated changes include a delay or termination of new regulations on heat illness and workplace violence, and granting employers more control over third-party participation in OSHA inspections. Amanda Laihow, a respected figure in the safety community, is nominated to become OSHA Deputy Assistant Secretary. Keeling’s tenure may face challenges due to recent staff departures at OSHA.

On February 11, 2025, the Senate received President Trump’s nomination of David Keeling as Assistant Secretary of Labor for Occupational Safety and Health, to lead the Agency with the same name (OSHA). As the chief for OSHA, Mr. Keeling’s nomination will require Senate confirmation.  During the first Trump Administration, the Republican-led Senate never brought Trump’s OSHA nominee, Scott Mugno, up for a confirmation vote. We have no indication yet as to when the Senate will hold hearings on Mr. Keeling’s nomination.

Mr. Keeling has held positions overseeing occupational safety at large employers specializing in materials handling and delivery. Mr. Keeling would bring extensive experience with safety and health, as well as an understanding of OSHA agency enforcement actions against complex organizations. We anticipate Mr. Keeling will bring a more pro-employer orientation than the Biden Administration OSHA led by Doug Parker, and will show more openness to OSHA voluntary protection programs (VPP), which employers can use to partner with OSHA and proactively enhance their safety programs. OSHA under the Biden Administration moved to install new regulations protecting workers from heat illness and workplace violence. We expect a Keeling-led Trump OSHA will delay or terminate those regulatory efforts. We also expect OSHA to announce that employers and property owners will have the authority, going forward, to determine which third parties can join OSHA onsite inspections at non-union-represented workplaces. We have heard anecdotes that numerous OSHA employees – particularly Assistant Area Directors – have accepted the so-called “Department of Government Efficiency”-encouraged buyouts. Departures of key OSHA staff would force Mr. Keeling to pursue his agendas with a leaner, less-experienced team.

Per Bloomberg and OSHA sources, Amanda Laihow has been nominated as OSHA Deputy Assistant Secretary. Ms. Laihow is a former Commissioner and General Counsel of the Occupational Safety and Health Review Commission. Ms. Laihow is widely respected in the safety and health community.

Per Bloomberg Law, President Trump plans to name Wayne Palmer of Virginia to lead the Mine Safety and Health Administration. Mr. Palmer served as deputy assistant secretary for the MSHA during the first Trump administration.

Seyfarth Synopsis: As of February 3, 2025, California’s COVID-19-specific workplace regulations will expire, though employers must still track COVID-19 cases until February 3, 2026. Cal/OSHA can enforce COVID-19 as a workplace hazard under the Injury Illness Prevention Program standard, making it prudent for employers to consider infectious disease prevention in their IIPP.

Since 2020, California employers have had to comply with Cal/OSHA’s COVID-19-specific regulations. First there was the emergency temporary standard (“ETS”), followed by the 2-year non-emergency “permanent” standard. But as of February 3, 2025, most provisions will expire and no specific regulatory requirements addressing COVID-19 as a workplace hazard will remain. However, there are two important considerations to keep in mind:

  1. The requirement from the non-emergency “permanent” COVID-19 regulation to keep a record of and track all COVID-19 cases in a log does not expire until February 3, 2026. From a practical standpoint, employers may be maintaining empty COVID-19 logs, as  there’s no regulatory mandate for employers to require employees report if they have COVID-19. And there’s no regulatory requirement that employers take any particular action upon becoming aware of an employee’s COVID-19 positive status, such as contact tracing or notification to close contacts. Nevertheless, employes must continue to record employee COVID-19 cases on a log.
  2. Cal/OSHA can still enforce COVID-19 as a workplace hazard under the Injury Illness Prevention Program (IIPP) standard. For this reason, it’s prudent for employers to incorporate basic infectious disease prevention protocols into their IIPP, such as encouraging sick employees to report their illnesses and to stay home until recovered.

For any questions about these changes or other Cal/OSHA regulations, please reach out to a member of our Workplace Safety & Environmental Team. We are ready to assist with navigating these updates and ensuring compliance and to ensure you stay informed and able to maintain a safe workplace.

Seyfarth Synopsis: Once again, employers are required to submit OSHA Forms 300, 301 and 300A online via OSHA’s Injury Tracking Application (ITA).

OSHA requires some employers to upload 2024 OSHA Form 300 log, Form 300A Summary, and Form 301 Incident Report information to its Injury Tracking Application (ITA) by March 2, 2025. Users may manually enter data to the secure ITA website, upload a CSV file to add multiple establishments at the same time, or transmit data electronically via the API (application programming interface).

Only certain employers are required to comply with the electronic submission requirements. Employers must consider the number of employees and industry classification at a specific site establishment, rather than at the entire Company.

Employers must submit Form 300A Summary data for an establishment if it meets one of the following criteria:

  • 250 or more employees and is not in an industry listed in the Exempt Industries list in Appendix A to Subpart B of OSHA’s recordkeeping regulation, or
  • 20-249 employees and is in an industry listed in Appendix A to Subpart E.

Employers must also submit Form 300 Log and Form 301 Incident Report data for an establishment if it has 100 or more employees and is in an industry listed in Appendix B to Subpart E.

Certain State Plans (e.g. Minnesota) require additional private sector establishments to submit 300A and 300/301 data. Private sector employers in these State Plans should contact their State Plan for guidance about what is required to be submitted.

Establishments that meet any of the following criteria during the previous calendar year do not need to electronically submit their information to OSHA:

  • The establishment’s peak employment during the previous calendar year was 19 or fewer employees, regardless of the establishment’s industry.
  • The establishment’s industry is listed on Appendix A to Subpart B of OSHA’s recordkeeping regulation, regardless of the number of employees working at the establishment.
  • The establishment had a peak employment between 20 and 249 employees during the previous calendar year AND the establishment’s industry is not on Appendix A to Subpart E of OSHA’s recordkeeping regulation.

Employers unsure of their obligations can use the ITA Coverage Application to determine if they are required to electronically submit their injury and illness information to OSHA. Employers may also wish to review OSHA’s Injury Tracking Application training video.

OSHA is now sharing ITA data and third party tracking services are mining it. Employers must be even more vigilant to ensure that all data they submit is accurate.

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.

OSHA enforces almost 1,000 standards and tens of thousands of individual regulations related to General Industry, Construction, Maritime, and other industries. Once again, OSHA released its preliminary data for the top ten most frequently cited standards for FY 2024 at the National Safety Council Safety Congress & Expo. Final FY 2024 data will be released in early-April 2025 to allow inspection data to close following the end of the fiscal year on September 30, 2024.

Reflecting OSHA’s 2024 focus on falls, fall protection general requirements in construction again tops the list. Respiratory protection saw the biggest relative increase in position, demonstrating a greater focus of airborne hazards in General Industry workplaces. To reduce the risk of incidents and OSHA citations, employers and safety managers would be wise to focus on the safety hazards associated with these standards.

  1. Fall Protection – General Requirements (1926.501): 6,307 violations
  2. Hazard Communication (1910.1200): 2,888
  3. Ladders (1926.1053): 2,573
  4. Respiratory Protection (1910.134): 2,470
  5. Lockout/Tagout (1910.147): 2,443
  6. Powered Industrial Trucks (1910.178): 2,248
  7. Fall Protection – Training Requirements (1926.503): 2,050
  8. Scaffolding (1926.451): 1,873
  9. Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102): 1,814
  10. Machine Guarding (1910.212): 1,541

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

Seyfarth Synopsis: The federal Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (“EPA”) have published their 2025 increases to civil penalties.

We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. The agencies have now finalized the 2024 inflation adjustments, which increase the penalties.

Under the rule, the new maximum OSHA civil penalties for 2025 will be increased by 2.6%:

 2025 Penalties2024 Penalties
Other than Serious Violations:$16,550$16,131
Serious Violations:$16,550$16,131
Repeat Violations:$165,514$161,323
Willful Violations:$165,514$161,323
Failure to Abate (Per Day):$16,550$16,131


The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2025, for violations occurring after July 15, 2024.

USEPA also updated their penalties based upon inflation numbers from 2024. Readers familiar with USEPA’s penalty structure know that environmental statutes typically set out a “per day” penalty, as well as a maximum statutory penalty. However, certain statutes allow for civil judicial enforcement that does not carry a maximum statutory penalty.

For 2025, USEPA updated penalties under all of the major environmental statues (including the Toxic Substances Control Act, Federal Insecticide, Fungicide and Rodenticide Act, Oil Pollution Control Act, Safe Drinking Water Act). As an example of the civil penalty increases for 2025, the chart below shows the increases under the major environmental statutes: the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA):

2025 Penalties2024 Penalties
Clean Air Act                        
Daily: Maximum (per violation):		$59,114 – $124,426
$472,901		$57,617 – $121,275
$460,926
Clean Water Act                   
Daily: Maximum (per violation):		$27,378 – $68,445
$342,218		$26,685 – $66,712
$333,552
RCRA Daily:$74,943 – $124,426$73,045 – $121,275
CERCLA Daily:
(including EPCRA)
Maximum (per violation):		$71,545

$214,637		$69,733

$209,202


EPA’s 2025 penalties are effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after January 8, 2025. EPA’s 2024 penalties remain effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after December 27, 2023 but before January 8, 2025.

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

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

Seyfarth Synopsis: Ongoing wildfires in Southern California trigger Cal/OSHA regulations that require employers to train and protect employees from wildfire smoke. The regulation applies to most outdoor workplaces, requiring employers to provide N95 respirators at certain AQI trigger levels, effective communication, and training on wildfire smoke hazards.

Devastating and fast-moving wildfires have destroyed thousands of homes and businesses in several parts of Southern California, resulting in tragic deaths, upended lives, and disrupted workplaces.  As firefighters continue to battle the fires and bring them under control, the region has been blanketed by wildfire smoke, a recognized occupational hazard. Though smoke is often apparent via sight and smell, air quality can be impacted far beyond the range of the fires.

Cal/OSHA enforces a permanent regulation relating to Protection from Wildfire Smoke that applies to workplaces where the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke. Employers must track wildfire smoke in areas where employee exposure is anticipated, using one of several options provided authorized by Cal/OSHA, including the airnow.gov website maintained by U.S. EPA. As of January 9, 2025, AirNow approximates AQI Category of 150 or more (for all particulate matter, not just PM 2.5) in the red, purple, and maroon areas below:

 Courtesy of AirNow.gov as of 9:20am January 9, 2025.

Employers can anticipate that most of the workforce of Los Angeles County and surrounding areas could be occupationally exposed to wildfire smoke in the coming days above the AQI threshold. For instance, construction sites, warehouses with open bay doors, retail workers who go outdoors, and even indoor workplaces without mechanical ventilation that rely upon open windows will all be impacted by wildfire smoke.  Indoor workplaces and enclosed vehicles with mechanical ventilation and closed windows are exempt from the standard, as are employees who are only exposed to an AQI for PM 2.5 of 151 or above for less than one hour per shift. Firefighters engaged in wildland firefighting are not covered by the standard. 

Employers with covered employees must take the following steps to protect workers who may be exposed to wildfire smoke:

  • Monitor air quality using one of the methods set out in the rule, including AirNow.gov.
  • Identify harmful exposure to airborne particulate matter from wildfire smoke at the start of each shift and periodically thereafter by checking the AQI for PM 2.5 in regions where workers are located.
  • Reduce harmful exposure to wildfire smoke if feasible, for example, by relocating work to an enclosed building with filtered air, or to an outdoor location where the AQI for PM 2.5 is 150 or lower.
  • If employers cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, they must provide:
  • Filtering facepiece respirators such as N95 masks to all employees for voluntary use, and
  • Training on the hazard as required by the Injury and Illness Prevention Plan.

If employees must be exposed to an AQI for PM 2.5 of 500 or above, appropriate respiratory protection is mandatory and must be provided under a compliant respiratory protection program. Employers also need to establish and implement a system for communicating wildfire smoke hazards with employees and ensure that employees may report such hazards without fear of reprisal.

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