By Adam R. Young, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: On May 9, 2024, President Joe Biden announced that his administration has formally recommended relaxing restrictions on cannabis, marking the most significant federal policy shift on cannabis since the drug was criminalized more than 50 years ago.

The U.S. Department of Justice formally published its proposed rule to reclassify cannabis from the highly restrictive Schedule I tier under the federal Controlled Substances Act to the more loosely regulated Schedule III tier. “This is monumental,” Biden said in a video announcement.

The move has been seen as part of a larger push for marijuana reform by the current administration, an effort that has included presidential pardons for federal marijuana use and possession offenses. In announcing the administration’s new marijuana policy, Biden stated that the move aligned with his goal to lift barriers to employment for tens of thousands of Americans.

Following many state legalizations of medical and recreational marijuana, the federal rescheduling of cannabis under the Controlled Substances Act may be a step towards increased workplace impairment and positive drug tests.  It may also push both state laws and legal changes in a direction that restricts an employers’ ability to address possession and impairment at work.  But for now, the ramifications continue to be unclear and will be closely watched by our team. To ensure you are adequately minimizing legal exposure that may result from regularly shifting rules surrounding cannabis, contact your Seyfarth attorney.

By Stanley Jutkowitz and Susan Ryan 

Seyfarth Synopsis: Cannabis would move to Schedule III from Schedule I under this reclassification.

In a move long awaited by the cannabis industry, the Drug Enforcement Administration (DEA) has decided to re-schedule cannabis. Currently classified under Schedule I, along with heroin, cannabis would now move to Schedule III, along with ketamine and anabolic steroids.

This would not legalize cannabis for adult-use; rules and regulations would still apply, and there would be criminal prosecution of those who deal in cannabis without a license.

Re-scheduling, although much closer than it was yesterday, is still a ways off. The DEA rule needs to be reviewed by the White House Office of Management and Budget. After that review, there would be a public comment period (which looks to be at least 60 days, although no firm timeline has yet been set), after which the DEA rule would be published and go into effect. Given the controversy surrounding both the rescheduling and legalization of marijuana, we would not be surprised if there is litigation that seeks to stop the rescheduling from going into effect.

This story was first reported by the Associated Press. More details and commentary will appear in this week’s Week In Weed.

Apr. 17, 2024  – As most California employers are now aware, a new workplace violence law (SB 553) requires essentially all CA employers to develop and implement written Workplace Violence Prevention Plans and training by July 1, 2024. The new requirements will be enforced by Cal/OSHA.

Cost  –  There is no cost to attend, but registration is required.

REGISTER HERE

Join us for a two-part webinar series as attorneys from our Workplace Safety team guide you through what is new and how to prepare.

  • Webinar
    10:30 a.m. to 11:00 a.m. Pacific
    11:30 a.m. to 12:00 p.m. Mountain
    12:30 p.m. to 1:00 p.m. Central
    1:30 p.m. to 2:00 p.m. Eastern
  • Part 1: What Is New?
  • Seyfarth’s workplace safety team will discuss the fundamentals of California’s new workplace violence prevention plan including who is covered, what conduct is regulated, what is required of employers, training requirements, and recording and reporting requirements.
  • Speakers: 
  • Adam R. Young, Partner, Seyfarth Shaw
    Ilana R. Morady, Counsel, Seyfarth Shaw
    Daniel R. Birnbaum, Associate, Seyfarth Shaw

  • Part 2: How to Prepare and Implement
  • Seyfarth’s workplace safety team will discuss strategies and best practices for employers to implement California’s new workplace violence prevention requirements, including how to draft a written program, develop training programs, and ensure accurate recordkeeping. The presentation will also provide tips to balance compliance with the law and administrative practicality. 
  • Speakers: 
  • Patrick D. Joyce, Partner, Seyfarth Shaw
    Ilana R. Morady, Counsel, Seyfarth Shaw
    Daniel R. Birnbaum, Associate, Seyfarth Shaw

Learn more about our Workplace Safety & Environmental practice. 

If you have any questions, please contact Brenda Begini at bbegini@seyfarth.com and reference this event.  

This program is pending CLE approval in CA, IL, and NY. Credit will be applied as requested but cannot be guaranteed for TX, NJ, GA, NC and WA. The following jurisdictions may accept reciprocal credit with our accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, AR, CT, HI and ME. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used for self-application. Please note that attendance must be submitted within 10 business days of the program taking place. CLE decisions are made by each local board and can take up to 12 weeks to process. If you have questions about jurisdictions, please email CLE@seyfarth.com.

Please note that programming under 50 minutes of CLE content is not eligible for credit in NJ, and programming under 60 minutes of CLE content is not eligible for credit in GA. Programs that are not open to the public are not eligible for credit in NC.

 By Matthew A. SloanA. Scott Hecker, and Adam R. Young

Seyfarth Synopsis: On April 1, 2024, the Federal Register published OSHA’s final rule revising its regulations regarding whom employees can authorize to act as their representative(s) to accompany compliance officers during on-site OSHA inspections.

Under Section 8(e) of the Occupational Safety and Health Act, employees and employers alike have the right to have a representative accompany OSHA Compliance Officers (“CSHOs”) during physical inspections (“walkarounds”) of worksites as part of OSHA inspections. OSHA inspections can arise from serious accidents and injuries; employee or third-party complaints; or through targeting employers in “high-risk” industries, like warehousing. Depending on the type of inspection, walkarounds can be “wall to wall” (i.e., covering the entire worksite) or limited to the area where an employee was injured or the areas referenced in a complaint.

After a period of notice and comment rulemaking (which we previously blogged about), the Department of Labor has officially revised its regulations (29 CFR 1903.8) to clarify that employees have the right to designate a non-employee, third party to be their representative during the physical walkaround. OSHA views this update as “consistent with [its] historic practice,” asserting “the rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience.”  However, stakeholders and at least one court disagreed with OSHA’s interpretation, suggesting only an employer’s employee could serve as the walkaround representative. Now, OSHA has effectively indicated non-unionized employees can look outside the workplace – e.g., to unions – for support during an OSHA inspection.[1]

Technically, the revised regulations place limits on third-party employee representatives to ensure their presence actually aids the inspection. Specifically, a third-party must be “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.” According to OSHA guidance issued alongside the revised rule, this can include, for example, technical knowledge or practical experience about the processes and hazards of the type present in the workplace that CSHOs may not have, or language and communication skills that facilitate the gathering of information from employees. Under the current administration, OSHA is likely to be extremely deferential to the requests of employees.

The rule provides the CSHO ultimate discretion to decide whether a third-party is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.”  Employers questioning the qualifications of the non-employee third party should raise the objection immediately with the CSHO and request clarification as to the necessity of that third party’s presence for the walkaround. If OSHA’s response is unsatisfactory, employers can consider denying access to that third-party representative.

Should an employer refuse “to permit a representative of employees to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace in accordance with § 1903.8, the Safety and Health Officer shall terminate the inspection” or narrow it to areas, topics, and materials to which the employer does not object.  29 CFR 1903.4(a). The CSHO must report the employer’s refusal – and the reason for it – to their Area Director, who will discuss it with OSHA’s attorneys at the Solicitor’s Office. Id.  Employers may be able to raise legal defenses to third party visits on site, relating to the third party’s suitability, skills, experience, and method of selection at a non-represented workplace.

Even if there is no dispute as to the third-party representative’s presence, employers should take care to ensure the protection of confidential documents, trade secrets, and other confidential information. For example, during the walkaround inspection, it is typical for OSHA to take photographs of the workplace and for employers to take “side-by-side” photos of the same equipment and work areas. The revised regulations do not entitle non-employee third party representatives to possession of those photographs (or any other materials provided to OSHA during the inspection), or the ability to take photos without the employer’s permission.

For more information 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 Labor Management Relations Team.


[1] Employers in state plan states, like California, should continue to comply with those states’ applicable rules and regulations regarding union and third-party access to OSHA inspections.  But, as required by section 18 of the OSH Act, States will need to ensure their standards and enforcement of those standards are at least as effective as any final rule published by OSHA following the notice and comment rulemaking process.

By Ilana MoradyPatrick Joyce, and Adam Young

Seyfarth Synopsis: The Cal/OSHA Standards Board was ready to vote on Cal/OSHA’s indoor heat rule at the March 21, 2024 Standards Board meeting, but at the 11th hour, the Board was ordered to cancel its scheduled vote.

Quick Summary

In a surprising development, the Cal/OSHA indoor heat rule, which was expected to be approved at the Standards Board’s March 21, 2024 meeting, has been delayed yet again. The delay was due to the state Department of Finance rejecting part of the Standardized Regulatory Impact Assessment (SRIA) the evening before the scheduled vote, due to concerns over compliance costs at state facilities. The Department of Finance apparently determined that the proposed rule’s fiscal impact on the State’s Department of Corrections and Rehabilitation would be overly burdensome, causing it to withdraw SRIA approval.

Union activists, who were at the meeting expecting to witness approval of the rule, become very upset. Although the cause of the delay appears to be purely due to withdrawal of SRIA approval, accusations about employer collusion began flying. The protesters became so disruptive that Sheriff’s deputies were summoned to remove them.

The Standards Board members, also apparently frustrated by the delay, decided to vote on the rule anyway. In a purely symbolic gesture, they approved the indoor heat regulation. According to a Department of Industrial Regulations spokesperson, a rule cannot become effective without SRIA approval, even if passed by the Board.

What’s Next

The Board and Department of Finance have just over a week to figure out what to do next. The proposed rule is set to expire on March 31, 2024 – 1 year after introduction of the rule on March 31, 2023 – after which rulemaking will have to start again from scratch. If the Board and the Department of Finance cannot work out their differences, labor and worker advocates asked Cal/OSHA to engage in an “emergency” rulemaking to ensure protections are in place prior to the summer heat setting in. The Board and Cal/OSHA have not officially signaled whether they are interested in emergency rulemaking.

Additional Background

For almost 20 years, Cal/OSHA has enforced a heat illness prevention standard that only applies to employees working outdoors, and used its IIPP standard to enforce heat hazards in indoor environments. In 2016, SB 1167 was signed into law, which required Cal/OSHA to submit a proposal to the Standards Board addressing employee protection from indoor heat hazards. Thus began Cal/OSHA’s work on an indoor heat illness prevention standard.

Three years later, on April 22, 2019, Cal/OSHA finally published its first draft standard, which we blogged about in 2019. However, the already slow Cal/OSHA revision process was further slowed by the pandemic and focus on COVID-19 regulations. The pace of regulation again quickened in 2023, when Cal/OSHA introduced an updated draft standard. Since then, a series of modified drafts were proposed.

The proposed rule (at 8 CCR 3396) would require covered employers to make potentially significant changes in their workplaces. Any employer with indoor work areas that are warm will need to evaluate whether the new Section 3396 applies.

Applicability and Summary of Requirements

At all indoor work areas where the temperature equals or exceeds 82 F when employees are present, employers will be required to implement a written Heat Illness Prevention Plan. The written Plan will need to be made available to employees upon request, will need to be in English and the language understood by the majority of employees. Required content of the written Plan is:

  • Procedures to access water;
  • Procedures to access cool-down areas;
  • Procedures to comply with assessment and control measures (when certain conditions exist);
  • Procedures for emergency response;
  • Procedures for acclimatization.

Covered employees will need to be trained on a variety of topics including but not limited to the indoor heat procedures, the different types of heat illness, and the importance of water consumption.

Importantly, the proposed rule contains an “incidental heat exposure” exception where an employee is exposed to temperatures at or above 82 F and below 95 F for less than 15 minutes in any 60 minutes period. This may help some employers avoid coverage under the new standard. The exception does not, however, apply to vehicles without effective and functioning AC, or shipping or intermodal containers during loading, unloading, or related work.

For indoor work areas that meet certain conditions set forth below, additional “assessment and control” measures will be required. Applicability of these measures will be when one or more of the following applies:

  • Temperature equals or exceeds 87 F when employees are present;
  • Heat index equals or exceeds 87 F when employees are present;
  • Employees wear clothes that restrict heat removal and temperature equals or exceeds 82 F; or
  • Employees work in a high radiant heat area and the temperature equals or exceeds 82 F.

For work areas that check one of these boxes, employers would be required to, among other things, measure the temperature and heat index, and record whichever is greater, as well as maintain these measurement records including date, time, and specific location of all measurements. Identification and evaluation of all other environmental risk factors for heat illness will also be required. Alternatively, employers can just assume a work area is subject to one of the triggering conditions and use the Hierarchy of Controls to minimize heat illness risk.

Workplace Solutions

Although the rule has not yet been approved, employers should be prepared to comply. All expectations are that, come summer, regulations will be in place. Whether that’s an emergency indoor heat rule, or a permanent one, remains to be seen. Stay tuned…

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 and Aaron M. Gillett

1. A Nightmare Acquisition

Your Company has recently acquired a small logistics company with a strong business reputation.  Eighteen days after the acquisition was finalized, you receive a call that there has been a tragic forklift accident in a warehouse operated by a subsidiary of the newly acquired target company.  An employee of a staffing agency was struck by a forklift and is in intensive care.  Federal OSHA has cited the subsidiary four years ago for forklift violations in another state, and is onsite considering willful citations the forklift operator was untrained and uncertified.  The Company faces hundreds of thousands of dollars in civil OSHA citations.  If the employee passes away, new operations and safety management may face potential criminal liability punishable with six months in federal prison and a $250,000 personal fine.  The Company also faces a multi-million dollar tort claim from the worker’s estate, as he is not bound by the worker’s compensation system. 

2. Overview of Potential Legal Liabilities from an Acquisition

Ill-informed M&A lawyers often overlook the liabilities posed by occupational safety and health risks.  Employers face numerous risks and liabilities, a few of which were described in the scenario above.  Unaddressed safety hazards can injure or kill employees. Employers face civil OSHA citations, including “per instance” violations that can be assessed into the millions of dollars.  Because business partners track safety records through third party tracking services, OSHA citations and poor safety records can jeopardize business relationships.  Fatal accidents can result in referrals to the USDOJ or state prosecutors for criminal prosecution of employer representatives: operations, safety, and executive management.  Poor safety records can tarnish the reputations of affiliated entities.  A strong reputation for safety can be quickly and rebuilt painstakingly slowly.

3. Key Review Elements and Red Flags

A prospective buyer should review safety records and safety-related documents, engaging qualified outside counsel and safety professionals where necessary to aid the process and ensure effective due diligence.  Key indicators to review include:

a. Severe Violators Enforcement Program

OSHA maintains a Severe Violators Enforcement Program (SVEP), a log of employers with significant alleged OSHA violations.  Inclusion on this log can be indicative of a significant OSHA citations and allegations of willful safety and health violations, or violations that resulted in a fatality or catastrophe (injuring three or more employees).  Inclusion on the SVEP log can trigger additional OSHA inspections and scrutiny. Inclusion in SVEP can be damaging to the business reputation of the employer.  Employers can be stuck in SVEP for a minimum of three years.   

b. OSHA Establishment Search and OSHA Record

Prospective buyers should review any OSHA citations, settlements, and open inspections.  Open inspections may result in citation.  Settlements and accepted citations mean that the employer has OSHA violations “on their record,” predicate violations that OSHA can use for future Repeat violations.  Repeats are significant classifications that will be reputationally damaging and will carry five or ten times the standard penalty, for each alleged violation. 

The last five years of a company’s OSHA record should be publicly available on OSHA’s Establishment Search website.  Though the Establishment Search may sometimes be factually inaccurate, this website will provide an additional resource on any open inspections, closed inspections, and citations OSHA has issued.  The status of those citations, including appeals and settlements, will be recorded as well. 

c. OSHA Logs and Loss Runs

Employers in more hazardous industries are required to record work-related injuries and illnesses that meet certain criteria on a yearly OSHA Form 300 log; the logs must be maintained for five years.  Prospective buyers should request and review these logs from all worksites that maintain them.  This review should be supplemented with a review of the worker’s compensation loss run, which may include additional injuries that did not meet the OSHA recording criteria.  This data should help identify trends with regard to employee injuries and illnesses, and perhaps reflect recurring hazards.

d. Written Safety Programs

Most employers are required to maintain written safety and health programs to address potential hazards at their worksites. An employer’s use of an overarching program, a Safety and Health Management System (SHMS) (also called an Injury and Illness Prevention Plan (IIPP) or Accident Prevention Program (APP)) can indicate the employer’s  implementation of a safety-based (rather than just compliance-based) program. 

Written programs on applicable safety hazards will also indicate compliance with OSHA standards.  Key programs for serious hazards include fall protection, powered industrial trucks (forklifts), lock-out tagout, confined space, heat illness, and workplace violence.  Programs should address the hazards identified in the job hazard assessments (JHAs).  Reviewing these programs and JHA documents will provide diligence that an employer is meeting the requirements of the OSHA standards and implementing a safety program to protect employees and other workers. 

4. Transaction Terms and Risk Allocation

Counsel and safety professionals should also carefully review the purchase agreement to ensure adequate disclosure of matters identified during due diligence.  In particular, the representations and warranties contained in the purchase agreement should include comprehensive statements of fact and assurances related to the target company and its employee health and safety record.  These representations and warranties serve as the foundation for a post-closing indemnification claim in the event of a breach and a critical risk allocation function for buyers.

5. Conclusion

The leading indicators identified in this article can help prospective buyers assess target companies, the risks they pose, and the opportunities they may present for creating a safer workplace.  Of course, the absence of a serious accident or injury does not disprove the existence of a hazard.  And all the best written safety programs may be ineffective and preventing accidents where an employer has not established a strong safety culture.

For more information on occupational safety and health in due diligence and M&A transactions, please contact Adam R. Young (ayoung@seyfarth.com), Aaron M. Gillett (agillett@seyfath.com) or other members of Seyfarth’s Workplace Safety & Environmental and Mergers & Acquisitions teams.

Adam R. Young is a partner in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Young focuses on occupational safety and health, OSHA inspection management, employment, and OSHA retaliation. Mr. Young can be contacted at ayoung@seyfarth.com (312) 460-5538.

Aaron M. Gillett is a partner in the Mergers & Acquisitions Group in the Chicago office of Seyfarth Shaw LLP. Mr. Gillett focuses his practice primarily on M&A transactions, as well as corporate governance and commercial contracts. Mr. Gillett can be contacted at agillett@seyfarth.com (312) 460-5992.

By Brent I. Clark, James L. Curtis, Patrick D. JoyceA. Scott HeckerDaniel R. BirnbaumMelissa A. Ortega and Taylor Iaculla

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in San Juan, Puerto Rico. The meeting includes representatives from the U.S. Department of Labor, OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.

The final day of the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting began with a panel of Judges and Commissioners from the Occupational Safety and Health Review Commission: the Honorable Cynthia Attwood and the Honorable Covette Rooney. Chief Administrative Law Judge Rooney discussed the Review Commission’s ongoing Administrative Law Judge settlement rates, which continue to hover near 92% for federal OSHA cases. For settlement conferences, the data reflected the shift towards in-person meetings with a minority of hearings held virtually. Chief Judge Rooney expressed a preference for in-person hearings as a Judge, but gratitude for the potential for remote hearings where necessary.

Chief Judge Rooney also announced that she will retire this coming July and we wish her the best after a long and storied career!

At the Review Commission level, in Fiscal Year 2023, the Review Commission directed 16 of 26 petitions for discretionary review, and decided 17 cases. For the current fiscal year, no decisions have been issued despite 7 of 12 being directed for discretionary review. Commissioner Atwood expressed concern that the Commission is currently “paralyzed” by its inability to issue decisions, as Commissioner Atwood is the only member serving on the three-member panel. Because the Senate has not confirmed the current nominee, Amanda Laihow, to the Commission, the Commission cannot issue any decisions or decide on almost all routine motions. Beyond this issue, Commissioner Atwood noted that the Review Commission has yet to receive its full budget from Congress, and is currently operating under a continuing resolution until March 22.

The second panel was a mock settlement mediation conference, mediated by the Honorable Christopher Helms, Administrative Law Judge with the Review Commission. The panel first discussed mandatory settlement proceedings under 29 CFR 2200.120 and Judge Helms shared his preferences. Administrative Law Judges can exercise wide discretion and conduct the proceedings as they prefer, but within the guidelines of the rules.

The panel then went through a mock mediation for a hypothetical where an employer was cited for willful violations of the lockout tagout standard with penalties totaling over $200,000. This qualified the case for mandatory settlement mediation. Judge Helms prefers to hold a mandatory settlement opening conference and requests written statements from the parties. Judge Coleman then holds a private caucus session with the parties to ascertain their goals for the settlement conference.

The third panel of the day featured Seyfarth’s very own A. Scott Hecker. Scott was joined by a senior Department of Labor attorney and a National Employment Law Project attorney in a discussion regarding vulnerable workers. Vulnerable workers include Black, Latino, immigrant, and child workers. The panel discussed the hazards faced by this group of workers and tools the Biden Administration, the Department of Labor (“DOL”), and employers can prevent and addresses the hazards.

“Underrepresented workers are overrepresented in the data,” Hecker said. Where you can see the data, you can follow the trends, identify where the problems are, and address them. Where employers can really make a difference is with training. Training should be in the language that employees speak and relayed understandably. Hecker further stressed that frequent safety issues can invite OSHA’s scrutiny and other government scrutiny as OSHA frequently engages in cross-agency collaboration, a sentiment shared by the senior DOL attorney.

The DOL attorney focused on the tools that DOL has to protect immigrant workers from retaliation and possible deportation. The DOL attorney emphasized that DOL “protects workers regardless of immigration status.” DOL partners with the Department of Homeland Security (“DHS”) to protect employees, including worksite-wide deferred action. OSHA is the second agency to work with DHS to certify “U” and “T” visas for workers who are victims or violence and trafficking, respectively. DHS has also agreed not to conduct mass raids of worksites where the worksite is the subject of a DOL investigation. Lastly, the panelists commented on state law efforts to combat issues facing vulnerable workers. For example, Florida recently passed legislation permitting sixteen- and seventeen-year-olds to work at certain residential roofing sites while New York’s Department of Labor affixes a tag notifying consumers if a product was unlawfully produced.

The final panel addressed mental health. The panel addressed the conflict between employers’ obligations under the Occupational Safety and Health Act (“OSH Act”) and the Americans with Disabilities Act (“ADA”). Specifically, employers asserting a defense to ADA claims through the OSH Act’s general duty clause, which requires employers to provide a workplace free from recognized hazards which may cause or are likely to cause death or serious physical harm. The panelists discussed a circuit court case that barred employers from adopting per se bans on employees with conditions that pose a hazard. Instead, employers must engage in individualized assessments to determine whether the employee poses a risk under the general duty clause. The panelists then focused on common hazards related to the cannabis industry. OSHA does not provide guidance for evaluating or addressing cannabis industry hazards. However, OSHA continues to regulate the industry. The panelists discussed a recent case where OSHA issued a serious citation due to the hazard posed by ground cannabis dust. According to the DOL attorney, OSHA has internal testing, which has not been shared with regulated industry, showing ground cannabis dust is a hazardous chemical subject to the Hazard Communication standard. Currently, there is no OSHA or industry-recognized standard addressing acceptable levels of ground cannabis dust.

We look forward to returning to next year’s Midwinter Meeting in 2025.

By Ilana Morady, Brian Gillis, Clara Rademacher, Patrick D. JoyceBradley Doucette, and Adam R. Young

Seyfarth Synopsis: Senate Bill 553, signed into law by Governor Gavin Newsom, requires nearly all employers in the State of California to prepare a Workplace Violence Prevention Plan, train employees on how to identify and avoid workplace violence, and maintain a violent incident log by July 1, 2024. On March 7, 2024, Cal/OSHA published the long-awaited model Workplace Violence Prevention Plan

Governor Newsom has signed SB 553, a first of its kind workplace violence prevention law, which requires nearly all California employers to create, adopt, and implement written Workplace Violence Prevention Plans that include numerous elements, annual workplace violence prevention training, violent incident logs, and the creation and retention of various records.

Interestingly, the Division of Occupational Safety and Health (Cal/OSHA) in collaboration with various stakeholders has been working on a general industry workplace violence standard since 2017. Now, SB 553 requires the Division to start enforcing new workplace violence requirements that are largely modeled on Cal/OSHA’s existing draft standard. Under the new law, the Cal/OSHA Standards Board is required to adopt workplace violence standards codifying SB 553 no later than December 31, 2025. But regulations or not, Cal/OSHA is empowered and directed to start enforcing SB 553 on July 1, 2024.

The model Cal/OSHA Workplace Violence Prevention Plan complies with the full slate of requirements for a written Plan, and using this Plan will reduce the likelihood of a programmatic Cal/OSHA citation.

Who is Covered?

The requirement for a Workplace Violence Prevention Plan applies to all employers and employees in the State, with a few limited exceptions:

  • Employers already covered by Cal/OSHA’s Violence Prevention in Health Care standard
  • Employees who telework from a location of their choosing that’s outside the control of the employer
  • Locations not open to the public where fewer than 10 employees work at a given time
  • Department of Corrections and Rehabilitation and law enforcement agencies

Defining “Workplace Violence”

“Workplace violence” is defined broadly as any act of violence or threat of violence that occurs in a place of employment. The law also defines 4 specific types of workplace violence.

The definition includes, for example, verbal and written threats of violence and incidents involving use of firearm or dangerous weapon regardless of whether an employee sustains an injury.

However, the definition also captures acts that some might think waters down the meaning of workplace violence, such as a threat against an employee that results in or has a high likelihood of resulting in, injury, psychological trauma, or “stress,” regardless of whether the employee sustains an injury. This means there’s no “reasonable person” test; the definition is subjective. A seemingly innocuous comment to some might be considered workplace violence based on the perception of an employee.

What Must be Included in a Workplace Violence Prevention Plan?

Workplace Violence Prevention Plans must be in writing and easily accessible by employees. The Plans can be included as a stand-alone section within an existing injury and illness prevention plan (IIPP) or they can be maintained as a separate document.

The model Workplace Violence Prevention Plan published by Cal/OSHA includes all of the required information necessary for compliance including identifying the individuals responsible for implementing the Plan, and the following procedures for:

  • Involving employees in the development and implementation of the Plan
  • Coordinating implementation of the Plan and training with other employers such as staffing agencies.
  • Accepting and responding to reports of workplace violence, and prohibiting retaliation against reporting employees
  • Ensuring employees comply with the Plan
  • Communicating with employees about: (1) how to report violent incidents, threats, or workplace violence concerns to employer or law enforcement and (2) how concerns will be investigated and results communicated
  • Responding to actual and potential workplace violence emergencies
  • Identifying and evaluating workplace violence hazards
  • Post incident response and investigation
  • Reviewing Plan effectiveness annually, when deficiency is apparent, or after a workplace violence incident

Training Requirements

SB 553 also requires employee training. Employers must provide employees with initial training when the Plan is first established and continue to conduct annual trainings thereafter. Training needs to cover the following topics:

  • The employer’s Plan and how employees can obtain a free copy of the Plan
  • How to report workplace violence hazards and workplace violence incidents
  • Corrective measures the employer has implemented
  • How to seek assistance to prevent or respond to violence
  • Strategies to avoid physical harm
  • Information about the violent incident log and how employees can obtain a copy

Additional training is required when new or previously unrecognized workplace violence hazards are identified, or when there are changes to the Plan.

Employers must retain training records for at least 1 year.

Recording and Reporting Requirements

Employers are required to record every workplace violence incident in a violent incident log including:

  • Date, time, and location of the incident
  • Detailed description of the incident
  • Classification of who committed the violence
  • The violence type including whether it was a physical attack or threat, whether weapons or other objects were involved, or whether it was a sexual assault
  • Consequences of the incident including whether security or law enforcement was contacted and whether actions were taken to protect employees from a continuing threat

Employers must retain the log for 5 years and omit personal identifying information. Employees are entitled to view and copy the log within 15 calendar days of a request.

Other Recordkeeping Requirements

Unlike the IIPP standard, which has a 1-year retention period for records of implementation, SB 553 has a lengthy 5-year retention requirement for workplace violence hazard identification, evaluation, and correction records. Records of workplace violence incident investigations (which may not include medical information) are also subject to the 5-year retention requirement.

Changes to Existing Rules On Seeking Temporary Restraining Orders on Behalf of Employees

Finally, SB 553 changes California’s Code of Civil Procedure by adding several employee-friendly protections to the process by which employers may petition for temporary restraining orders (TROs) and orders after hearings (i.e. restraining orders that are often in place for three or more years) on behalf of employees.

California Code of Civil Procedure Section 527.8 previously allowed employers to petition for a Workplace Violence TRO on behalf of their employees who had “suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace” to seek protection from an individual; often a former employee or member of the public who is violent and/or threatening the employee at their workplace. This was a helpful, albeit limited, remedy for employers seeking to protect the workplace.

SB 553 expands Section 527.8 and authorizes collective bargaining representatives, not just employers, to petition for TROs on behalf of employees, allowing even more relief for employees faced with threats and violence. SB 553 also provides for employee names to be withheld from the TRO papers, providing anonymity for victims who otherwise might have hesitated on supporting a TRO for fear of retaliation from the individual at issue.

SB 553 also expands upon the actionable conduct necessary to give rise to a TRO and amends Section 527.8 to allow employers to seek a TRO on behalf of their employee where the employee suffers harassment––and not simply violence or threats of violence.

Workplace Solutions

Employers should reach out to the authors or your favorite Seyfarth attorney to strategize about how to create and roll out compliant Plans, and modify existing policies to conform to the new SB 553 requirements before July 1, 2024.

Edited by Cathy Feldman and Coby Turner

By Brent I. ClarkJames L. CurtisPatrick D. JoyceA. Scott HeckerDaniel R. BirnbaumMelissa A. Ortega and Taylor Iaculla

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in San Juan, Puerto Rico. The meeting includes representatives from the U.S. Department of Labor, OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.

Day 2 started with a panel discussion on recent case law with significant impacts on workplace safety. The panelists discussed a recent Supreme Court case concerning whistleblowers, reflecting yesterday’s theme of protecting workers from retaliation. In the case, on appeal from the Second Circuit, the Supreme Court held that whistleblower claims must only satisfy the lower contributing factor standard as opposed to a heightened standard the Second Circuit attempted to impose. The panel also highlighted a recent case involving powered industrial truck (PIT) underride citations that were vacated by the appellate court after the Review Commission declined to review. The employer was cited under the general duty cause for exposing its truck operators to underride hazards. The appellate court noted that such citation was preempted by the PIT training standard, despite the standard not explicitly referencing the underride hazard. The court found that because the specific PIT standard included a training clause, and OSHA had previously used the very same training rule to cite a PIT underride hazard – in a case where we were involved and successfully defended a client – this was enough to preempt use of the general duty clause. According to Edmund Baird, Associate Solicitor, Division of Occupational Safety and Health, the decision is considered by OSHA and the Solicitor’s office to be a “troubling case” that can make enforcement of underride issues through the general duty clause in the future “difficult.”

The panel then addressed the recent trend of constitutional challenges to government agencies’ authority. As discussed in yesterday’s blog post, these challenges seek to revise or replace the Chevron doctrine, which affords government agencies’ regulatory interpretations a level of deference when those interpretations are challenged. The panelists posited that decisions seeking to alter the current framework may result in the adoption of the Skidmore framework, which restricted deference based on an analysis of the agency’s consistent interpretation of the law it seeks to enforce. The panelists also cautioned that if Chevron is overturned and new administrations attempt to revise the regulatory framework through agency interpretation, they will not be afforded the same level of deference they might otherwise expect.

The next panel discussed safety and health obligations for foreign workers, how those obligations affect employers, and OSHA’s regulatory efforts. The panel discussed the legal and business challenges faced by employers in ensuring vendors and contractors comply with laws, and reminded the attendees of the importance of utilizing written contracts with vendors or contractors. The panel also acknowledged potential issues when sending its own employees abroad, and the need to assess safety and health risks associated with relevant countries and develop policies addressing such issues. Further, Emily Hargrove, Chief of Staff to the Assistant Secretary of OSHA, discussed OSHA’s current focus on protecting foreign workers through various means. This includes a focus on foreign workers employed in the United States in the residential roofing, meat and poultry, warehouse and distribution, and agriculture industries.   OSHA is also focused on developing relationships with consulates and countries such as Mexico, El Salvador, and Honduras to educate migrant workers of their rights.

The conference then split into break-out sessions. During a session on discrimination, the panel looked at how workplace discrimination and harassment could be addressed by workplace safety laws, including as a workplace violence incident under the general duty clause. The panel noted recent OSHA investigations and interest related to such issues, most commonly where employees allege they have been subjected to discrimination culminating in incidents of workplace violence.

We also attended a breakout session regarding updates on State OSHA Plans. The panel provided a robust discussion of the unique challenges and benefits State Plan states have when regulating employee safety and health in their jurisdictions. Judith Cruz Concepción, Assistant Secretary of the Puerto Rico Occupational Safety and Health Administration, spoke on the challenges Puerto Rico OSHA experiences related to staffing of compliance officers, access to employers who may not have a physical presence in Puerto Rico other than workers, and meeting various benchmarks outlined by federal OSHA for State Plans. Concepción mentioned that certain federal OSHA Emphasis Programs, such as the Heat NEP, are simpler to enforce in Puerto Rico because employers are already cognizant of the hazards presented from working in hot weather and proactively addressing those hazards, given that Puerto Rico experiences temperatures around or above 80 degrees Fahrenheit year-round.

Elliot Furst, Senior Counsel in the Washington Attorney General’s Office, discussed differences between State Plan states, their funding arrangements, and their ability to address hazards unique to their states. Furst indicated that Washington is capable of quickly pivoting to address hazards unique to the State, including heat illness, wildfire smoke, and ergonomics because the agency’s funding source is not tied to the general fund and the legislature does not actively monitor the agency. This observation creates an interesting incentive structure and helps explain our experience with the agency, their aggressive enforcement agenda, and focus on newly-identified hazards. We also heard about the practical differences related to advocating on behalf of employers or employees in State Plan states compared to federal OSHA jurisdictions.

At a separate Cal/OSHA breakout discussion, panelists focused on two topics that have consistently been on OSHA’s radar in recent years: heat and ergonomics. The panel discussed OSHA’s efforts to address both issues, which are currently regulated under the general duty clause. Regarding ergonomics, best practices for employers were discussed, including focusing on developing the proper policies and programs to address such issues in the workforce. Concerning inspection management, the panel spoke on the potential for employees to demonstrate lifting or related movements during OSHA inspections, which may run contrary to a company’s standard operating procedures or training. As such, employers should proactively work to address these issues. Turning to heat, the panel discussed the increasing prevalence of heat illness, the challenges in addressing such issues, and the status of OSHA’s rulemaking on a heat illness standard. The panel stressed training for employees, as well as awareness of various State Plan states, especially on the west coast, that may have specific standards addressing heat.  Lastly, the panel acknowledged the challenges employers may face in keeping an engaged workforce that is aware of heat hazards and the importance of taking action to use a company’s resources that will keep employees safe.

Finally, a panel discussed ethical issues arising from AI and big data, addressing potential ethical issues surrounding the use of AI and big data as it relates to safety and health. The panelists considered the benefits and pitfalls of utilizing AI and big data in assessing safety and health hazards in the workplace. Currently, technology can help employers monitor safe work practices and help evaluate potential hazards. However, use of such technology may lead to increased risk if employers fail to address hazards that AI or data have indicated pose safety and health hazards. These issues necessitate the need for updating policies and procedures to effectively sort and evaluate information derived from AI and big data.

By Brent I. Clark, James L. Curtis, Patrick D. JoyceA. Scott HeckerDaniel R. BirnbaumMelissa A. Ortega and Taylor Iaculla

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in San Juan, Puerto Rico. The meeting includes representatives from the U.S. Department of Labor, OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.

Tuesday, March 5

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico. On Tuesday, March 5, the conference focused on the Mine Safety and Health Act, which included Mine Safety and Health Administration representatives presenting and in attendance. One key development related to two significant MSHA cases that involve arguments  that MSHA’s interpretation of the Mine Safety and Health Act is flawed. This comes after recent Supreme Court cases challenging the Chevron doctrine, which affords government agencies’ regulatory interpretations a level of deference when those interpretations are challenged. Overturning the doctrine would empower judges to decide if a regulation is clear and unambiguous, without deferring to the agency’s interpretation of the regulation at issue.  

The afternoon session shifted focus, primarily focusing on best practices and procedures for accident investigations, representation issues, the role of company personnel and unions, as well as an employer’s rights during OSHA inspections. The session highlighted the intersectionality that OSHA has with other areas of law, such as labor law, privacy law, and whistleblower rights.

Wednesday, March 6

Today’s session featured Douglas L. Parker, the head of the Occupational Safety and Health Administration, who spoke about the Biden Administration’s priorities and initiatives for the upcoming year, which included encouraging employers to adopt a safety and health focused culture. OSHA will focus on key components, such as: increasing employer participation through alliance programs, focusing on warehouses, addressing fall hazards in both general and construction industries, and silica hazards. Increasing employer participation was a common theme throughout Parker’s commentary, who noted that OSHA does not want employers to pass the “burden” on to employees and expressed renewed interest in prioritizing whistleblower protections and anti-retaliation measures, citing it as an issue of “personal importance.” 

The Assistant Secretary also spoke about OSHA’s focus on VPP modernization efforts and its intent to expand the use of safety and health management systems. OSHA will continue to use penalty strategies and expects to see an increase in willful and egregious cases as a result of “focusing on the right employers.” The Assistant Secretary added that the agency will be releasing a new mission statement, which employers can expect to include protecting workers from retaliation.

Seema Nanda, Solicitor of Labor at the U.S. Department of Labor, followed up and noted that the Office of the Solicitor will prioritize retaliation and protecting immigrant workers, developing imminent danger cases, and increasing utilization of 11(b) for repeat offenders. She also noted that the agency will continue to use debt collection initiatives for recidivist employers.  The Office of the Solicitor will use all available tools, and Nanda stressed that the agency will look to employ corporate wide settlements and enhanced compliance agreements to effectuate global settlements as appropriate. In the OSHA context, it will also focus on its use of warrants, subpoena power and subpoena enforcement, enhanced abatement, and coordinating with the Department of Justice in regard to civil and criminal penalties. Notably, Nanda expressed that the agency will also increase its collaboration with state plans.

We also heard from Dionne Williams, Deputy Director, Directorate of Enforcement of OSHA, who spoke at length about key enforcement initiatives for 2024, including a focus on national emphasis programs related to heat hazards, those targeting warehouse and distribution center establishments, retail establishments with high injury rates, and silica. Williams discussed the severe violator enforcement program, noting that there have been 1,251 cases in the program since its inception, with almost 250 cases occurring just in the past year. As part of its national emphasis program focused on heat-related hazards, Williams noted that OSHA’s goal is to increase heat inspections by 100% above its baseline average for fiscal years 2017-2021. Further, when the heat index reaches 95 degrees, including both indoor and outdoor locations, OSHA will engage in targeted inspections.

Anticipating the themes and topics covered by Ms. Williams, Seyfarth’s Workplace Safety Team recently presented on and provided their analysis on OSHA enforcement in the upcoming year. That presentation is available here: “Be Prepared: OSHA Enforcement Trends for 2024 and Beyond | Seyfarth Shaw LLP.” 

Williams was followed by Peter Vassalo, Counsel for Special Litigation, Division of Occupational Safety Health. Vassalo commented that OSHA is committed to utilizing all the “tools in its toolbox,” including its criminal enforcement mechanisms, by partnering with the Department of Justice and state attorneys general. LaTasha T. Thomas, Senior Counsel to the Solicitor also spoke, commenting generally on the rulemaking process and how the rulemaking process will be unaffected by the upcoming election.

Today’s panels also included discussion on employee participation related to OSHA investigations, in both union and non-union work environments. Specifically, the panel highlighted the Department of Labor’s proposed rule concerning walkaround rights of employees, in which the Department is seeking to expand walkaround rights. The proposal came in response to a Northern District of Texas ruling that determined that OSHA could not permit non-employees to act as employee representatives during OSHA inspections. The proposed rule is currently with the Office of Management and Budget, which is in the final stages of its review.

We will continue to provide updates throughout the week.