By Adam R. Young, Jennifer L. Mora, and Craig B. Simonsen

Seyfarth Synopsis: Across nationwide testing, marijuana positivity rates for 2022 reached 4.3% (up from 2.7% in 2017), with biggest gains found in states that legalized recreational marijuana. 

Impairment and related safety hazards have been disrupting the workplace resulting in lost time, absenteeism, safety hazards, and serious industrial accidents. We track annual positivity test reports from Quest Diagnostics, one of the country’s largest drug testing laboratories.  Quest’s recently released 2023 Drug Testing Index reveals that while positivity rates for some drugs declined, the rise in positivity rates for marijuana and amphetamine continues to climb.  Of the more than six million general workforce marijuana tests that Quest performed in 2022, 4.3% came back positive, up from 3.9% the prior year. Worse still, post-accident marijuana positivity of urine drug tests in the general U.S. workforce was 7.3%, an increase of 9% compared to 6.7% in 2021. While not entirely clear, it is possible that the widespread state legalization of marijuana has contributed to an increase in test positivity and also workplace safety hazards.

Scientific testing indicates greater likelihood of errors in judgment and workplace accidents where an employee is impaired by marijuana. A National Safety Council white paper continues to recommend a Zero Tolerance Policy for marijuana in safety-sensitive positions.  Federal OSHA further advocates for post-accident drug testing as a legitimate part of a root cause analysis to determine the cause of an accident.  Employers have struggled to address the hazard of marijuana impairment at work and how best to protect workplace safety.

A problem for employers is that none of the scientifically valid drug tests for marijuana definitively prove whether a person is impaired at or near the time of an accident or the time they provide a specimen for testing. Moreover, state and local marijuana laws are making it increasingly difficult for employers to even consider or act on a positive marijuana test result.  Accordingly, employers looking to address drugs and alcohol in the workplace should work with outside counsel to ensure compliance with their current drug and alcohol testing programs. 

We have blogged previously on his topic. See for instance Method and Madness Behind New California and Washington Cannabis Laws; New Jersey Recreational Marijuana Law Provides Significant Employment Protections to Marijuana Users; And the Winner of the 2020 Election Is…Marijuana!; National Safety Council Endorses Zero Tolerance Prohibition on Cannabis/Marijuana for Safety-Sensitive Employees; Illinois Marijuana Legislation Update: Senate Bill Would Protect Employers’ Rights; Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment; Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters; Marijuana Farm Employees Face Numerous Health Hazards; and New Jersey Cannabis Regulatory Commission Issues Guidance on “Workplace Impairment” Determinations.

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

Seyfarth Synopsis: OSHA has just announced a National Emphasis Program to prevent falls, the leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.

OSHA has indicated that the emphasis program will focus on reducing fall-related injuries and fatalities for people working at heights in all industries. OSHA considered that falls remain the leading cause of fatalities and serious injuries in all industries, so it determined that an increase in enforcement and outreach activities was warranted.

Despite the balanced application of the agency’s outreach, enforcement, and compliance assistance efforts, fatalities caused by falls continue to be a leading cause of death for all workers. A comparison of the Bureau of Labor Statistics (BLS) and OIS data between 2014 and 2021 revealed the following:

OSHA concludes that “the goal of this NEP is to significantly reduce or eliminate unprotected worker exposures to fall-related hazards in all industries that can result in serious injuries and deaths. OSHA’s goal will be accomplished by a combination of enforcement), outreach to employers, and compliance assistance. OSHA anticipates that most of the inspections will occur in construction because the majority of the fatal falls to lower levels each year occur on construction worksites.

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

Seyfarth Synopsis: On April 14, 2023, we attended a webinar presented by U.S. DOL Solicitor Seema Nanda, DOL Wage and Hour Division Principal Deputy Jessica Looman, DOL Occupational Safety and Health Administration Assistant Secretary Doug Parker, National Labor Relations Board General Counsel Jennifer Abruzzo, and U.S. Equal Employment Opportunity Commission Chair Charlotte Burrows.  The webinar addressed 1) what retaliation is and how each agency addresses it, 2) best practices for prevention, 3) best practices to respond to instances of retaliation, and 4) available resources.

Solicitor Nanda explained, despite nuances among the laws and standards enforced by the participating agencies, retaliation generally encompasses an employee’s engaging in protected activity, which results in an adverse action.  Adverse actions can include termination, confiscating immigration documents, threats, shift changes, reducing hours or responsibilities, blacklisting, demotion, isolation, and ostracizing – effectively any action dissuading an employee from raising a concern about a possible violation or engaging in other protected activity.  Protected activity may involve filing a complaint, planning or joining a lawsuit, complaining to a supervisor, or refusing to work.  Solicitor Nanda also represented that the Solicitor’s Office aims to engage with its agencies early in retaliation claims to seek, e.g., temporary restraining orders and to ensure every worker can exercise rights and participate in investigations.

Each participant described the laws they enforce and the circumstances they encounter when working through retaliation claims.  Specifically, OSHA’s Doug Parker explained the agency’s whistleblower program covers not only the OSH Act, but also 24 other laws covering product and food safety, fraud and financial issues, and transportation.

Solicitor Nanda labeled addressing retaliation in the workplace as a win-win.  Because it is illegal, it is a critical part of employer compliance, and by instituting anti-retaliation programs, employers can help employers avoid increased penalties and bad publicity.  Addressing retaliation can also improve the work environment, as employers who take retaliation prevention and response seriously can identify shortcomings and encourage employee engagement by reducing or eliminating fear of retribution for reporting issues.  The government takes retaliation so seriously because without employee participation in the enforcement process, agencies cannot effectively execute their missions.  Indeed, these agencies’ view retaliation as:

one of the greatest threats to workers being able to exercise the rights guaranteed to them under the law, and to the ability of agencies to protect the exercise of those rights and ensure compliance with our laws. As a result, preventing and addressing retaliation is a top priority across agencies

The presenters next shared recommendations for employers to implement best practices concerning prevention and response to retaliation.  They represented the recommendations are general, not mandatory, and do not interpret or create legal obligations.  But many derived from the work of the Whistleblower Protection Advisory Committee.

Assistant Secretary Parker kicked off a discussion concerning developing anti-retaliation programs and policies, identifying components of effective protocols to both prevent and respond to retaliation.

To prevent retaliation, employers should:

  • Provide training in plain, comprehensible language that employees can understand on: relevant laws and regulations; types of retaliatory acts; employees’ rights and obligations; and elements of the employer’s retaliation program.  Managers and supervisors should understand – and be provided examples of – what constitutes retaliation; how to deal with reports of retaliation and harassment; strengthen skills regarding de-escalation, conflict resolution, effective communication, and problem solving; and the consequences of retaliation.
  • Ensure accountability by having management take a leadership role in preventing and addressing retaliation.  Managers should set the tone, lead by example, hold themselves accountable, and empower workers.
  • Develop a complaint process that provides avenues for employees to raise concerns.  The process should provide for transparent evaluation, as well as fair, effective, and timely resolution of complaints.  Assistant Secretary Parker suggested employers should want robust anti-retaliation prevention and response programs in place because these policies are closely intertwined with substantive compliance with applicable laws and regulations.  Put another way, employees’ sharing concerns may facilitate employers’ ability to address potential safety and health shortcomings in their workplaces.
  • Maintain program oversight through ongoing monitoring of, e.g., the efficacy of anti-retaliation training, trends in complaints and subsequent resolutions, compliance with anti-retaliation policies, and numbers of worker reports to evaluate whether employees are coming forward with concerns.  Internal audits can be beneficial as well.
  • Evaluate policy and culture, including transparency surrounding working conditions and pay; potential chilling effects of safety incentive programs and employee monitoring; communications regarding the value of employees’ raising concerns; and no retaliation for employees who report alleged violations to the government.

To address incidents of retaliation, employers should

  • Implement a system, which workers trust, to receive and address complaints. 
  • Authorize appropriate personnel to respond to complaints, including providing remedies to employees. 
  • Establish independent reporting channels and ensure the confidentiality of reports to the extent practical, but do not impede government investigations or prevent employees from seeking other support or assistance
  • Investigate reports of retaliation promptly and thoroughly, ensuring reports are taken seriously and investigations are not tainted by preconceptions
  • Make sure the investigatory process is clear and is explained to the reporting employee.  Both the employee and management should be kept informed throughout investigation. 
  • Close the investigation respectfully and properly
  • Follow up, as needed, to maintain continued anti-retaliation protection for reporting employees.

When providing remedies to employees who report workplace concerns, employers should consider how to make employees whole, e.g., through reinstatement, by providing lost wages or other damages, and through disciplining supervisors who failed to follow retaliation policies.

All the participating government entities represented additional resources are available on their respective websites.  OSHA’s Assistant Secretary Parker referenced not only www.whisteblowers.gov, but also the agency’s materials on health and safety management programs and its safe and sound campaigns.

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 Ilana R. Morady, Adam R. Young, and Patrick D. Joyce

Seyfarth Synopsis: After a lengthy delay due in part to the COVID-19 pandemic, Cal/OSHA has published its proposed indoor heat illness prevention standard. After the publication, there is a 45-day comment period, ending at the Standards Board May 18, 2023 meeting. The Standards Board has one year from publication date to take action on the proposed standard.

Background

For almost 20 years, Cal/OSHA has distinguished itself from Federal OSHA by, among other things, its heat illness prevention standard that applies to employers with employees working outdoors. Taking it up a notch, in 2016, SB 1167 was signed into law, which required Cal/OSHA to submit a proposal to the Standards Board on employee protection from indoor heat hazards. Thus began Cal/OSHA’s work on an indoor heat illness prevention standard, starting first with several advisory meetings, and several draft standards. On April 22, 2019, Cal/OSHA published what was then its latest draft standard, which we blogged about previously. However the normally slow standards-making process was slowed down even more when the COVID-19 pandemic hit. Nothing has happened on Cal/OSHA’s proposed indoor heat standard for the past few years. Until now…

What’s Required Under The Proposed Standard

Key requirements of the proposed indoor heat standard are:

  • Applies to all indoor work areas where the temperature equals or exceeds 82 degrees Fahrenheit when employees are present.
  • Enhanced requirements for indoor work areas where the temperature or heat index equals or exceeds 87 degrees Fahrenheit when employees are present; employees wear clothes that restrict heat removal and temperature equals or exceeds 82 degrees Fahrenheit; or employees work in a high radiant heat area and the temperature equals or exceeds 82 degrees Fahrenheit. One such requirement is to measure and record the temperature or heat index (which is greater) in these hot areas where employees work, and implement various controls measures, for example engineering controls to reduce the temperature or heat index or both. In lieu of measuring and recording, an employer can opt to simply assume a work area is subject the enhanced requirements.  
  • Allows compliance to be part of employer Injury Illness Prevention Programs, though employers can also choose to have a stand-alone written heat illness prevention program.
  • Employees must have access to fresh, pure, suitably cool, and free water as close as practicable to working areas and in cool down areas.
  • Employers must establish and maintain one or more cool down areas at all times, and encourage preventive cool-down breaks when employees feel the need.
  • Employers must use control measures to minimize the risk of heat illness, such as personal heat-protective equipment, administrative controls, and engineering controls.
  • Employers must have effective emergency response procedures.
  • Employers must have close monitoring of newly assigned employees and during a heat wave.
  • Employees must be trained on indoor heat illness prevention.

What’s Next

The Standards Board has one year from publication date to take action on the proposed standard. The soonest the Board could adopt the standard is likely sometime in the summer or fall of 2023, though the regulatory process typically takes longer. While a formal codified heat illness standard may be months to (possibly) years away, California employers should keep in mind that in the absence of a heat illness standard, Cal/OSHA can and does enforce indoor heat hazards under the IIPP standard, under which employers must evaluate site-specific hazards at their workplace.

Workplace Solutions

Employers should stay on the lookout for updates to the indoor heat prevention rulemaking process, and in the interim, employers with hot indoor work areas should review their worksite hazard analyses and ensure that any indoor heat hazards are being controlled. Seyfarth’s Workplace Safety group can assist you.

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

Seyfarth Synopsis: Highlighting the current administration’s focus on using press releases to assure workplace health and safety regulations are being followed, OSHA announced that a major retailer who has allegedly continued to expose workers to blocked exit routes is being cited for hundreds of thousands of dollars of fines, and over $15 million in fines since 2017.

In a national news release issued earlier this month, OSHA highlighted the OSHA history of a major retailer, including alleged deficiencies related to blocked exit routes.  OSHA announced that “since 2017, OSHA has issued more than $15 million in fines and cited Dollar General Corp. for numerous willful, repeat and serious workplace safety violations related to unsafe conditions in facilities nationwide.”

In its press release, OSHA Regional Administrator Kurt Petermeyer in Atlanta accused the Company of putting profits before people, noting that “these violations are preventable, and failing to prevent them shows a blatant disregard for the workers on whom they depend to keep their stores operating.”

OSHA’s recent actions indicate three significant takeaways for employers.  First, OSHA has revitalized its use of press releases to bring public awareness of significant citations issued to employers, impacting customer relations, employee relations, and painting a target for aggressive third-party litigators, union organizers, and others with a litigious interest in a Company’s record of workplace safety.  Second, OSHA will continue to target employers with wide operations who may become repeat offenders.  As the cases demonstrate, such employers can quickly accumulate significant OSHA fines in a short period if OSHA believes a Company’s safety culture is deficient.  Finally, with regard to retailers who generally are in a less hazardous industry than other employers subject to OSHA inspections, OSHA will aggressively investigate and cite safety hazards such as blocked exit routes. 

To develop a strategy that reduces the risk of harmful press releases, potential repeat liability, and significant OSHA fines, employers should consult experienced OSHA counsel.

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.

Image From OSHA

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

Seyfarth Synopsis: OSHA is promoting grain safety and compliance with the Grain Handling Facilities Standard on it’s website and links to additional information about Stand Up for Grain Safety Week, which takes place March 27-31, 2023.

Each year, dozens of workers become entrapped in confined spaces at grain handling facility worksites.  Further, according to researchers from Purdue University, there have been more than 900 cases of reported grain engulfment in the last five decades, with a fatality rate of 62 percent. As we noted in our October 8, 2019 blog concerning OSHA’s Grain Handling Facilities Standard, 29 C.F.R. § 1910.272, OSHA maintains an aggressive enforcement focus on grain handling facilities.  OSHA regularly pings the regulated community on grain handling facility compliance.  OSHA maintains regional and local emphasis programs for Grain Handling Facilities in Region V (IL, OH, WI), Region VIII (CO, MT, ND, SD), and the state of Idaho.

OSHA’s Grain Handling Facilities Standard applies broadly to facilities that “may receive, handle, store, process and ship bulk raw agricultural commodities such as … corn, wheat, oats, barley, sunflower seeds, and soybeans.”  The facilities include grain elevators, feed mills, flour mills, rice mills, dust pelletizing plants, dry corn mills, soybean flaking operations, and dry grinding operations of soycake.

With its most recent press release, OSHA explains that it continues to place an enforcement emphasis on grain handling facilities because the “grain handling industry is a high hazard industry where workers can be exposed to numerous serious and life threatening hazards.” The hazards include: fires and explosions from grain dust accumulation, suffocation from engulfment and entrapment in grain bins, falls from heights and crushing injuries, and amputations from grain handling equipment.

Engulfment and confined spaces are a primary concern of the Agency. “Suffocation can occur when a worker becomes buried (engulfed) by grain as they walk on moving grain or attempt to clear grain build up on the inside of a bin. Moving grain acts like “quicksand” and can bury a worker in seconds.”  It is estimated that about 400 pounds of pulling force is required to extract a body out of waist deep grain.  Accordingly, it is typically impossible for one employee to pull out by hand another employee engulfed in grain.  The regulations provide for grain bin entry procedures, with attendants and rescue plans.

In addition, grain dust explosions can be severe.  According to OSHA, over the last 35 years, there have been over 500 explosions in grain handling facilities across the United States, which have killed more than 180 people and injured more than 675.  OSHA has used at least one national industry consensus standard in enforcement activities concerning grain handling facilities.  We previously blogged on Updated Combustible Dust NFPA Industry Consensus Standard Gives OSHA New Tool to Cite Employers: Does Your Facility Comply?  In the blog, we noted that compliance with the industry standard for combustible dust was set for September 2020.  But we suggested that industry not delay its compliance efforts, as OSHA was already citing employers using the not-yet-effective NFPA 652, Standard on the Fundamentals of Combustible Dust.

Since that time, federal OSHA has continued its enforcement emphasis on employers who operate grain handling facilities, and those employers should ensure they remain in full compliance.

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 Adam R. Young, Patrick D. Joyce, James L. Curtis, Daniel R. Birnbaum, Melissa A. Ortega and Craig B. Simonsen

Seyfarth Synopsis: The Biden Administration is seeking a 17% funding increase for OSHA under the Department of Labor’s fiscal year 2024 budget request.

The FY 2024 budget request for OSHA is approximately $738.7 million, an increase of more than $106.3 million from FY 2023. The upcoming fiscal year begins Oct. 1. Released on March 9, the proposal includes increases of 16.3% for federal enforcement (up roughly $40 million for FY 2023), 30% for federal compliance assistance (+$23.3 million), and 26.3% for safety and health standards (+$11.1 million).

During the Trump Administration, OSHA faced years of flat budgets and OSHA had a difficult time competing for safety professionals with private industry when trying to hire compliance officers. This created staffing challenges at OSHA’s area offices. With this new budget request, USDOL intends to add 432 full-time equivalent employees (“FTEs”), including 250 additional enforcement staff “to rebuild and strengthen OSHA’s enforcement program.” The 250 new enforcement FTEs would include 142 OSHA compliance safety and health officers.

A divided Congress, however, will have the final say. A hearing before the House Labor, Health and Human Services, Education, and Related Agencies Subcommittee was previously scheduled for March 9, 2023, but was postponed due to the departure of outgoing Labor Secretary Marty Walsh.

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, Rebecca A. Davis, Patrick D. Joyce, Scott T. Fenton, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency’s (EPA) has announced that it is proposing the first-ever national drinking water standard for six per- and polyfluoroalkyl substances (PFAS) in the latest action under President Biden’s plan to combat PFAS pollution and the EPA PFAS Strategic Roadmap. 

Through its proposed rule, EPA seeks to establish legally enforceable levels for six PFAS in drinking water.  The proposed rule follows EPA’s prior proposals to designate two PFAS as hazardous substances under CERCLA and to use the Clean Water Act permitting and regulatory programs to enforce cleanup of PFAS pollution in the drinking water.  The proposal however is fraught with issues.

While according to the Biden Administration, the proposal is intended to be another step in “EPA’s Strategic Roadmap”, and EPA Administrator Michael S. Regan is touting the proposal as a means to “…provide states with the guidance they need to make decisions that best protect their communities…”, some states have already introduced measures to limit PFAS (at more reasonable levels than proposed by EPA) and while EPA’s proposal ostensibly is intended to build on such existing state initiatives, it is more likely, in current form, to merely stall such initiatives as states struggle to determine how to conform their programs to meet EPA’s new limits.  

The proposed new rule creates significant concerns for public water supplies (at present it does not apply to private water supplies or residential wells) as it would mean that if a public water system determines that PFAS exist in drinking water at or above the proposed levels, the existing drinking water system would need to be retrofitted, or alternatively a new drinking water system will need to be installed.  Some communities would need to consider switching to a different water source.  All options are costly and create challenges for communities already struggling to meet federal drinking water limits. (Note,  there are limited funds and grants available to communities under the Infrastructure Law for disadvantaged communities and small communities of less than 25,000 people, but it is unclear how and when those funds may be allocated.) For these reasons, the levels set by EPA will be critically challenged, and are unlikely to survive public notice and comment in their current form because of the cost.

If finalized, the proposal, as detailed in EPA’s FAQs, would regulate PFOA and PFOS as individual contaminants, and will regulate four other PFAS – PFNA, PFHxS, PFBS, and GenX Chemicals – as a mixture. A hearing is to be held on the rulemaking at www.regulations.gov, identified by Docket ID Number: EPA-HQ-OW-2022-0114, on May 4, 2023, at which the public will be invited to provide EPA with verbal comments. For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.

By Brent I. Clark, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, Daniel R. Birnbaum, and Melissa A. Ortega

Seyfarth Synopsis: This week we are attending the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting in San Diego, California. The meeting includes representatives from the U.S. Department of Labor, including the Occupational Safety and Health Review Commission, the Mine Safety and Health Review Commission, Administrative Law Judges, and the Solicitor’s Office, as well as management, labor, and safety attorneys and 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, the Honorable Amanda Wood Laihow, 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 95% for federal OSHA cases. For settlement conferences, the data indicated a shift towards in person meetings. Trials appeared to maintain a 50/50 split between in-person and virtual. Of the hundreds of COVID citations OSHA has issued, Chief Judge Rooney only identified one that has proceeded to hearing. Chief Judge Rooney expressed a preference for in-person hearings as a Judge, but gratitude for the potential for remote hearings where necessary and also explained the changes to the procedural rules and preference for rule compliance.

At the Review Commission level, in Fiscal Year 2022, the Review Commission directed 14 of 24 petitions for discretionary review, and decided 12 cases. The oldest case on the docket has been limited to 21 months, meaning that there are far fewer pending cases that in past years. The Review Commission received its full budget request from Congress, and is seeking to bring in additional employees, including the appointment of a third Commissioner. The Review Commission offered an explanation of when it will permit oral argument, which they were open to in a future with three sitting Commissioners 

The second panel was a mock mandatory settlement mediation conference, mediated by the Honorable William Coleman, Administrative Law Judge with the Review Commission. The panel first discussed mandatory settlement proceedings under 29 CFR 2200.120, and Judge Coleman shared his preferences. Administrative Law Judges can exercise their discretion and conduct the proceedings as they prefer, but within the guidelines in the rules. For example, Judge Coleman prefers to hold the proceedings remotely and will regularly do so if the parties agree. Judge Coleman also prefers to have the company representative with final settlement authority in the room during the proceeding.

The panel then went through a mock mediation for a hypothetical where an employer was cited for a willful violation of the machine guarding standard and a serious violation of the powered industrial truck standard with a penalty totaling over $200,000. This qualified the case for mandatory settlement mediation. Judge Coleman prefers to first hold ex parte conversations with the parties before the settlement proceedings officially begin. Judge Coleman then holds a mandatory settlement opening conference and requests written statements from the parties. Judge Coleman then holds a private caucus session with the parties.

The third panel was a discussion on automation, artificial intelligence (“AI”), and privacy. For OSHA, Rachel Graeber, Counsel, Office of the Solicitor presented. The panel discussed ways in which automation may create jobs, assist workers with their tasks, or change performance of the same. The panel also discussed different ways to think about AI from a workplace safety perspective. For example, smart powered industrial trucks may be able to prevent collisions. The panel discussed interplay with the NLRA and automation and how it affects employee labor rights. Employer representatives raised concerns with expectations as to industry consensus standards and whether OSHA had a duty to notify the regulated community regarding the applicability of those consensus standards. Finally, there were issues raised with regard to protections on employee biometric information and protection from medical inquiries under the Americans with Disabilities Act, and how advanced smart technologies may infringe on those rights.

The final panel addressed ethical issues and ethics opinions from state courts, as well as issues relating to attorney discipline, civil liability, and malpractice liability. Model professional conduct rules include prohibitions on harassment and discrimination, which is being rolled out in most states. The panel addressed implicit bias, explicit bias, and ethical considerations in conducting OSHA practice and safety management. Speakers provided suggestions and tools to address implicit bias in management and the legal profession. These implicit biases could be important to understand and improve both internal safety investigations and OSHA inspections. For example, the panel suggested a potential inaccurate conclusion based on bias, on issues like whether Spanish-speaking employee had understood training, or whether a recovering addict was impaired at the time of the accident. The panel stressed neutral evaluations and a consciousness of potential biases in making the determinations.

We look forward to returning to next year’s Midwinter Meeting in early 2024.

By Brent I. Clark, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, Daniel R. Birnbaum, and Melissa A. Ortega

Seyfarth Synopsis: This week we are attending the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting in San Diego, California. The meeting includes representatives from the U.S. Department of Labor, including the Occupational Safety and Health Review Commission, the Mine Safety and Health Review Commission, Administrative Law Judges, and the Solicitor’s Office, as well as management, labor, and safety attorneys and professionals.

Today’s session started with a panel discussing recent significant caselaw affecting workplace safety.  The panelists talked about whistleblower related litigation and a recent case that affirmed that unpalatable or unwelcome job changes are not necessarily considered adverse employment actions for retaliation purposes.  The case is currently pending at the United States Supreme Court, who could potentially issue a decision that significantly impacts whistleblower cases moving forward.  The panel also discussed a recent case involving HAZWOPER citations that were vacated by the Review Commission and appeals court when a release of ammonia was not “uncontrolled” and the standard did not apply.  A note was made that a similar argument could extend to the lockout / tagout standard when equipment is designed to not result in “unexpected energization.”  A case involving a general duty clause violation that is currently on appeal to an appeals court was also discussed.  The heart of the conversation focused on whether an employer’s reliance on a specialty contractor to perform work was an affirmative defense that must be proven by an employer or a part of the government’s case to prove employer knowledge.  A decision by the appeals court could impact how employers plead affirmative defenses and clarify who has the burden of proof in specialty contractor cases.  Finally, continuing on the theme of discussing heat illness issues from the previous day, the panel spoke on a recent heat illness case where the Review Commission reinstated numerous citations that were previously vacated.  The Review Commission acknowledged that heat was a recognized hazard and there are ways to protect employees from the hazard that includes work or rest cycles, reducing time outdoors, and acclimatizing employees.

The next panel discussed COVID-19, and its impact on both the structure of the workplace and OSHA regulatory efforts.  The panel discussed the legal and business challenges faced by the workplace during the pandemic and reminded the attendees that there remains a high potential for a future pandemic down the road.  To that end, the panelists discussed that employers need to be prepared to respond quickly through remote work practices, use of PPE and other recognized practices for handling infectious diseases.  The panel also acknowledged that the COVID-19 pandemic has led to a more informed workplace with regard to what safety and health standards exist in the workplace.  Further, employees have become more aware of OSHA’s retaliatory provisions and their 11(c) rights.  The panelists also tied in the COVID-19 pandemic to concerns about mental health issues in the workplace, and the increased potential for workplace violence cases that may result.

The conference then split into break-out sessions.  During a session on discrimination, a panel looked at how issues such as bullying could be addressed by workplace safety laws, including as a workplace violence incident under the general duty clause, or whistleblower statutes.  The panel also observed that a bullying issue that leads to employee mental health issues that are work related could result in a recordable incident on an OSHA 300 form.

We also attended a breakout session regarding updates on OSHA enforcement in the Construction industry.  OSHA Directorate of Construction Director Scott Ketcham addressed major concerns and emphases with regard to construction.  He noted data that showed a fatality rate three times higher in construction.  With less than 8% of workers in the construction industry, OSHA conducts more than 50% of its inspections against construction employers.  He discussed recent examples of bridge collapses and truss construction collapses, indicating major alleged safety shortcomings. He discussed falls and the risks posed by falls at great length, as one in ten worker deaths (in all industries) is due to fall.  He explained the agency’s focus on fall hazards for its inspections and citations, and a pending National Emphasis Program relating to fall hazards. 

OSHA CSHOs are already instructed to stop any time they see employees working at height (or in a trench) and ensure that appropriate safeguards are in place.  He also discussed current regulatory activity, including new design requirements for Powered Industrial Trucks (replacing the 1969 standards), pending revisions to the lead regulations, and a Worker Walk Around Representation Notice of Proposal Rule Making.  OSHA plans to clarify the definition of construction further, including a new definition of “heavy maintenance” as a type of construction.  The regulated community often continues to grapple with the issue and complying with detailed different regulations as to General Industry and Construction regulations.

USDOL Staff Attorney Juan Lopez discussed examples of aggressive enforcement actions.  He gave examples of willful-egregious citations, in which OSHA was highly motivated to issue citations based on prior fall fatalities at other worksites for the same employer.  He discussed how, in that case, the agency also coordinated with local authorities to have the employer’s license revoked.  He discussed violation by violation citations, including a recent citation where OSHA issued thirteen separate citations based on 13 employees not wearing fall protection.  Notably, he repeatedly referred to admissions supervisors made during management interviews as the key evidence in each case.  He also discussed USDOL’s efforts to pierce the corporate veil as to OSHA penalties, to create individual responsibility for OSHA violations for ownership. 

At a separate Cal/OSHA breakout discussion, panelists discussed some of the unique challenges, opportunities, and regulatory approaches to administering and operating under the country’s largest OSHA state plan.  The discussion focused on wildfires and air quality (including the importance of the Air Quality Index, or AQI), outdoor heat and its potential risks, and H-2A agricultural employees.

Finally, a panel discussed whistleblower laws, including both the statutes that protect employees from retaliation and those that provide rewards, such as the False Claims Act.  The panel focused on the best practices employers can take when responding to such claims to reduce liability.

More to come from the conference tomorrow.