By Jeryl L. Olson, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  EPA, in an Advance Notice of Proposed Rulemaking, requests comments on adding certain per- and polyfluoroalkyl substances (PFAS) to the TRI chemical list.

The U.S. Environmental Protection Agency (EPA) has asked industry stakeholders to provide comments on a proposal to add per- and polyfluoroalkyl substances to EPA’s Toxics Release Inventory (TRI) toxic chemicals list under Section 313 of the Emergency Planning and Community Right-to-Know Act and Section 6607 of the Pollution Prevention Act. The addition of PFAS to TRI reporting requirements would require companies manufacturing, processing or otherwise using PFAS over threshold amounts, to report releases and waste quantities on annual Form R reports.

Per- and polyfluoroalkyl substances are a group of man-made chemicals that includes PFOA, PFOS, and other chemicals. PFAS can be found in food, commercial household products, the workplace, drinking water, and in living organisms, including fish, animals, and humans. These chemicals are believed by EPA to be persistent in the environment, that is, they do not break down, and can accumulate over time.

EPA announced this week the opening of a 60-day public comment period concerning its proposed rulemaking.

The Agency is also considering establishing reporting thresholds for PFAS chemicals that are lower than the usual statutory thresholds due to concerns for their environmental persistence and bioaccumulation potential. The proposal is part of the Agency’s PFAS Action Plan to provide the public with more information on PFAS in the environment.

Public comments must be submitted by February 3, 2020 to docket EPA-HQ-TRI-2019-0375 at www.regulations.gov.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Condon McGlothlen, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Illinois General Assembly passed SB 1557, revising the language of the Recreational Cannabis Law to reduce but not completely eliminate employer liabilities.

As we previously blogged, the Illinois Cannabis Regulation and Tax Act (410 ILCS 705) (the “Legalization Act”) will legalize recreational cannabis for Illinois adults starting January 1, 2020. The Legalization Act specifically allows Illinois employers to enforce “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.” The Act permits employers to prohibit employees from being under the influence of or using cannabis in the employer’s workplace or while on call. Further, the Act (i) allows employers to discipline or terminate an employee who violates the employer’s workplace drug policy, and (ii) specifically insulates employers from liability for disciplining or terminating employees based     on the employer’s good faith belief that the employee was either impaired at work (as a result of using cannabis) or under the influence of cannabis while at work.

However, the Act raised questions about new potential liabilities for Illinois employers. First, the Legalization Act amended the Illinois Right to Privacy in the Workplace Act, which prohibits discrimination against employees for their use of “lawful products” outside of work (defined as lawful products under state law), including cannabis and marijuana. This created a potential cause of action for applicants who test positive on a for marijuana at the post-offer, pre-employment stage. Because the applicant has not started working, such a test could only detect marijuana use outside the workplace. Return-to-duty drug testing presented similar liabilities, typically detecting off duty drug use during a leave.

Employers who test current employees, e.g., post-accident or based on reasonable suspicion, faced new exposure if a discharged employee claimed the employer lacked a “good faith belief” that the employee had been impaired by or under the influence of cannabis.  For example, if the employer discharged some employees who tested positive but not others, a discharged employee could claim the employer lacked a “good faith belief” regarding impairment. Alternatively, because there is no legally or medically accepted definition of what constitutes his or her “impairment” (or being “under the influence” of marijuana), the employee could assert he was not in fact impaired at work, and that a positive test result alone cannot prove otherwise.

With the January 1, 2020 deadline approaching, Illinois business community representatives raised numerous concerns with lawmakers. The Illinois Chamber of Commerce proposed revising the Act to clarify permissible drug testing and to limit possible causes of action against employers. Both Houses have passed SB 1557, a bill which amends and clarifies many portions of the cannabis-related laws. The Act as amended would say:

Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:

(1) actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.

SB 1577 Sec. 705-10(50)(e)(1). This new provision is separate and apart from the Act’s safe harbor for employer decisions based on the employer’s good faith belief that an employee was impaired or under the influence of marijuana while performing his or her job duties.

For post-accident, random, or other forms of current employee testing, the Legalization Act now more effectively limits employer liability by expressly limiting causes of action based on discipline or termination on account of a failed drug test. However, the language regarding an employer’s “good faith belief” remains in the statute. Employees may therefore still pursue litigation alleging such a belief is required for lawful termination, and that the employer lacked this requisite belief in discharging the plaintiff.

With regard to pre-employment, post-offer testing, revisions to the Legalization Act seemingly eliminate employer liability for revoking offers due to failed drug tests. The Legalization Act as amended would explicitly permit “withdrawal of a job offer due to a failure of a drug test.” Section 705-10(50)(e)(1). While the original law amended the Illinois Right to Privacy in the Workplace Act to allow for discrimination claims founded on the use of “lawful products” (e.g. cannabis) outside work, the Right to Privacy in the Workplace Act specifically invokes 705-10(50)(e)(1) of the Legalization Act. Consequently, employer liability for withdrawing offers to applicants who test marijuana-positive – under either the Legalization Act or the Right to Privacy in the Workplace Act – has been effectively eliminated.

Governor Pritzker has not yet signed the bill into law. The Governor has sixty days in which to sign or veto or veto the bill; otherwise it becomes law effective January 13, 2020 – twelve days after the Legalization Act’s January 1, 2020 effective date. We do not know whether Governor Pritzker will take action on the amendments before the New Year. Regardless, we do not anticipate courts enforcing the Legalization Act as regards employment during early January with the amendments potentially taking effect two weeks later. We will continue to monitor developments in this area closely, and will keep employers informed.

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

By Mark A. Lies, II, Adam R. Young, and Kay R. Bonza

Seyfarth Synopsis: The United States Court of Appeals for the Fifth Circuit held that an untimely Notice of Contest to an OSHA citation was permissible due to “excusable neglect” by the employer, on account of a single unforeseen human error. Coleman Hammons Constr. Co., Inc. v. Occupational Safety & Health Rev. Comm’n, Case No. 18-60559 (5th Cir. Nov. 6, 2019).

After receiving an OSHA citation from federal OSHA, an employer has 15 working days from receipt of the Citation and Notification of Penalty to file a written Notice of Contest to the citations. 29 U.S.C. § 659(a).

Recently, the Fifth Circuit Court of Appeals addressed an excusable neglect argument in Coleman Hammons Constr. Co., Inc. v. Occupational Safety & Health Rev. Comm’n, Case No. 18-60559 (5th Cir. Nov. 6, 2019). Coleman Hammons, a construction company in Mississippi, received an OSHA Citation and Notification of Penalty while its superintendent was out of town. Coleman had standard operating procedures for receiving OSHA-related mail – the office manager opens the mail and directs it to the superintendent of the relevant construction project. On the day that the $70,000 citation arrived at the company, Coleman’s officer manager was not at her desk, so the company secretary signed the return receipt, did not open the letter, and placed it on the superintendent’s desk. By the time the superintendent returned from the construction project, over a month had passed and he immediately filed the Company’s Notice of Contest after the contest period had expired.

After the Company filed the late Notice of Contest, the administrative law judge (ALJ) stated that a misplaced citation in the company’s internal mail system demonstrated “inexcusable neglect” under the Federal Rules of Civil Procedure which apply to OSHA proceedings, and barred the company from contesting the citations with penalties of nearly $70,000. Relying on considerable precedent, the ALJ found that the untimeliness was inexcusable because the Company could have avoided the mishap if it had exercised “reasonable diligence,” by utilizing normal office procedures to receive and forward mail. The Review Commission upheld the ALJ’s ruling finding that the reason for the delay was within the employer’s control and therefore constituted a failure to exercise reasonable diligence, even though the Commission conceded that the employer had not acted in bad faith.

The Fifth Circuit’s decision is groundbreaking in that it articulates a new defense for a late Notice of Contest — a “single instance of unforeseen human error.” Both the secretarial error and the misplaced OSHA citation could be defensible under the Fifth Circuit’s new theory. “Excusable neglect” has morphed into a defense much like unforeseeable employee misconduct: if the employer can show that it had regular procedures in place and a minor error resulted in a reasonable delay, the lateness should be excused and the contest will go forward.

This is a federal court decision on a federal OSHA citation — some OSHA State Plan States have taken the position that the Notice of Contest deadline is absolute and there is no ability to argue excusable neglect in any form. Employers also should be aware that citations issued by state OSHA programs may have different appeal procedures and deadlines than the federal system. If they learn of uncontested OSHA violations, employers should promptly notify counsel, contest the citations as soon as possible, and notify the Agency in good faith of the intent to appeal.

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 Jeryl L. Olson and Craig B. Simonsen

Seyfarth Synopsis:  Last week the U.S. Environmental Protection Agency (EPA) finalized a “streamlined system” for managing hazardous waste aerosol cans as Universal Waste.  The Agency believes that the new system will be “clear, practical, and protective” and will promote recycling, and estimates the change will save at least $5.3 million annually in regulatory costs.

EPA has released a pre-publication version of the new Universal Waste Rule for Aerosol Cans under 40 CFR Part 273, in anticipation of the official publication of this new final rule.

The Agency indicates that the new rule affecting the management of used aerosol cans under the Universal Waste (“UW”) Program of 40 CFR Part 273, will benefit approximately 25,000 facilities across numerous industries, including retail, construction, and manufacturing sectors.  EPA announced that the “simplified structure of the universal waste program will help improve regulatory compliance, make aerosol can collection more economical, and facilitate the environmentally sound recycling of this common waste stream.”

While the final rule will affect all facilities who generate, transport, treat, recycle, or dispose of hazardous waste aerosol cans, it primarily affects generators (excepting Very Small Quantity Generators (VSQGs)), and handlers of waste aerosol cans.  Furthermore, the two top economic sectors estimated by EPA as having the largest percentage of potentially affected entities are the retail trade industry (69% of the affected universe), and manufacturing (17% of the affected universe).  The next largest concerns are transportation and warehousing, and health care and social assistance.

In addition to the UW standards that apply to all UW generators and handlers (that is, rules specifying labeling and marking of UW, accumulation time limits, employee training, release response, and for LQGs, notification and tracking of UW), rules for the puncturing of aerosol cans by generators who intend to recycle the empty cans as scrap or by handlers of UW aerosol cans, including facilities that puncture cans, requirements for utilizing commercial devices to safely puncture cans, drain contents, contain residual contents and control emissions from puncturing and draining activities.  (Note, EPA is not specifying any particular device be used by handlers for puncturing cans, nor is it prohibiting the use of self-designed equipment; rather, it is requiring that generators or handlers that do puncture cans use some type of commercial device for puncturing and controlling emissions.  Note further that generators or handlers who puncture and drain cans must manage the drained material in full compliance with RCRA).

Finally, the new UW Rules require generators/handlers to accumulate aerosol cans in a structurally sound container, and to establish a UW training program for employees that manage UW,  including aerosol cans.

Leaking and Damaged Cans.

Although the proposed rule excluded leaking or damaged aerosol cans from being managed as UW, the final rule allows damaged/leaking cans to be managed as UW if separately packaged in a closed container, over-packed, and drained in accordance with the aerosol can UW requirements.

States with Existing Aerosol Can Rules

For the five states with their own aerosol can rules (California, Colorado, New Mexico, Ohio, Utah, and soon, Minnesota), those state rules have been deemed by USEPA to be similar to the new Part 273 rules for SQGs and LQGs, with consistent rules for puncturing and draining aerosol cans.

Aerosol Cans that are Recycled

Where aerosol cans are being recycled rather than disposed, cans which have been punctured and drained prior to recycling are considered exempt scrap metal under 40 CFR 261.6(a)(3)(ii) and are exempt from the UW rules, and there is no requirement that a waste determination be made on the RCRA-empty cans to be recycled.  The materials removed from the cans however must be properly managed under RCRA.

Waste from Aerosol Cans

Before managing cans as UW, generators do not need to remove the contents from the cans, that is, the cans do not need to be drained at the generator facility.  Rather, a generator can put an aerosol can into the UW aerosol can container with residual material inside.  However, when a handler subsequently punctures/drains a can, the waste generated must be properly managed as a hazardous waste.

The administrative record for the rulemaking is found at EPA-HQ-OLEM-2017-0463.  The new rule will become final sixty (60) days after its publication in the Federal Register.

We had blogged previously on EPA’s New Strategy for Addressing the Retail Sector under RCRA, that was EPA’s attempt to address the unique challenges the retail sector faces in complying with RCRA’s hazardous waste regulations, including challenges relating to aerosol cans.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By James L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: Employers should prepare for the holiday shopping season and protect their employees from harm and injuries.

As the holiday shopping season approaches, we are again reminding retail and hospitality employers of the importance of taking safety precautions during the holiday season’s major sales events, such as Black Friday.

Holiday shopping has increasingly become associated with violence and hazards.  There has been numerous instances of riots, shootings, and pepper-spray attacks in crowds looking for holiday deals.  In one case, a worker was trampled to death while a mob of shoppers rushed through the doors of a store to take advantage of a Black Friday sales event.  Events of violence and shooting at malls and retail establishments have become all too common in our society.  Additionally, retail distribution centers that fill customer orders are exceedingly busy at this time of year and often staffed with new and/or temporary workers.  Such increased staffing levels can lead to increased workplace accidents.

Under OSHA’s general duty clause, “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death.”  To minimize injuries in the workplace during the holiday season, OSHA’s website on Holiday Workplace Safety provides employers with recommendations for crowd management plans and safe practices for retail distribution centers.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings, should an accident occur.

Employers should also review workplace violence programs and remind supervisors to keep their eyes open for signs of potential workplace violence issues.

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

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just updated its “Protecting Temporary Workers” website, for staffing agencies and their clients (i.e., host employers). The page reminds these employers that they are jointly responsible for a  temporary employee’s safety and health .

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: OSHA Releases Two More Temporary Worker Guidance Documents, New Guidance for ‘Recommended Practices’ to Protect Temporary Workers, OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers, and OSHRC Reviews Employment Relationships.

OSHA has released a Temporary Workers’ Rights Pamphlet (TWI Pamphlet) and a Temporary Worker Initiative pamphlet on “Safety and Health in Shipyard Employment.” The TWI Pamphlet is a small handout card that reminds staffing agency employees that they “have the same rights as permanent workers.” The second TWI pamphlet, on Safety and Health in Shipyard Employment, is a ten page summary of staffing employee safety law, rules, and policy for shipyard employers and workers.

Employer Takeaway

It is OSHA’s view that staffing agencies and host employers are “jointly responsible” for temporary workers’ safety and health. As these two newly published bulletin’s make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

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 Joshua M. Henderson, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis:  CalOSHA emergency regulation for workers exposed to wildfire smoke..

With wildfires now active in many parts of California, it’s important that employers in California remember Cal/OSHA’s emergency regulation, Protection from Wildfire Smoke, Section 5141.1, that applies to outdoor workers and workers in semi-indoor places. Think day laborers, like agricultural workers, landscapers, construction workers, sanitation workers, etc.  Requirements kick in when 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 take the following steps to protect workers who may be exposed to wildfire smoke:

  • 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:
  1. Respirators such as N95 masks to all employees for voluntary use, and
  2. Training on the new regulation, the health effects of wildfire smoke, and the safe use and maintenance of respirators.

Also, employers 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.

The regulation will be effective through January 28, 2020, with two possible 90-day extensions. Cal/OSHA held an advisory meeting earlier this year seeking input on the development of a permanent regulation. Meeting details and documents are posted on Cal/OSHA’s website.

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.

By: James L. Curtis and Adam R. Young

Seyfarth Synopsis: The National Safety Council released a policy statement endorsing employer zero-tolerance policies for cannabis use for employees who work in safety-sensitive positions, explaining that no level of cannabis is safe.

Unlike a test for Blood Alcohol Content, testing results for Tetrahydrocannabinol (THC) metabolites (the psychoactive components of cannabis) do not directly demonstrate employee impairment. Positive tests for cannabis can reflect past usage by an employee who is not impaired. Because the science has not yet created a test which can definitely show cannabis impairment, several legal frameworks presume impairment from positive drug test results. Employers have raised the question of what “levels” of marijuana metabolites are “safe” for employees at work and on duty, and how best to address positive drug test results. The National Safety Council (NSC), a respected national body of safety professionals, released a policy statement on October 21, 2019 addressing cannabis issues.

After acknowledging that the amount of THC detectable in the body does not directly correlate to a degree of impairment, the NSC advises employers that it is unsafe to be under the influence of cannabis while working in a safety sensitive position. “Safety-sensitive” refers to positions where drug impairment can significantly jeopardize the safety of the employee, co-workers, or third parties. The NSC explains that any level of cannabis in the system should be unacceptable, as it leads to an increased risk of injury or death to the employee and others.

In support of its contention that employers should have a zero-tolerance policy for employees in safety-sensitive positions, the NSC cites a National Institute of Drug Abuse study that found that employees who tested positive for cannabis had:

  • 85% more injuries;
  • 55% more industrial incidents; and
  • 75% higher absenteeism rate.

The NSC further cites an Insurance Institute for Highway Safety study that found a 5.2% increase in the rate of crashes post-cannabis legalization in three states as compared to before legalization.

In its policy statement, the NSC further recommends assigning employees to non-safety sensitive positions when they use marijuana for medical reasons, as a mandatory accommodation.

As a group of safety professionals, the NSC’s primary concern is employee safety. The organization’s recommendations may conflict with applicable laws or may require additional nuance and refinement. Employers should consult with legal counsel before implementing the NSC’s recommendations to ensure compliance with the Americans with Disabilities Act, state cannabis laws, and other federal and state rules.

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

By Andrew H. Perellis, Rebecca A. Davis, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) published its final rule this week to repeal the 2015 rule that “impermissibly expanded the definition of ‘waters of the United States’ (WOTUS)” under the Clean Water Act.  84 Fed. Reg. 56626 (Oct. 22, 2019).

The WOTUS rulemaking has been fraught with controversy and has generated well over 1-million public comments in the Agency record.

We have previously blogged on the WOTUS rulemaking. See EPA and Corps of Engineers Propose New “Waters of the United States” Definition, EPA and Corps Add Years to “Effective” Applicability Date of WOTUS Rule, Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The intention is that this final rule will repeal the 2015 Rule and restore the previous regulatory regime exactly how it existed prior to finalization of the 2015 Rule.

The final rule completes the objectives stated by  EPA Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works, R.D. James, who previously announced that “EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed.”  “[This] Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 – a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

As we had blogged about in December 2018, EPA and the Army proposed a new definition—Step 2—that would “clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent.”  The proposal provides a “clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.”

This final rule takes effect on December 23, 2019.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.