By Bernard Olshansky and Patrick D. Joyce

Seyfarth Synopsis: Expanding a law enacted in 2022, New York’s legislature passed another bill that seeks to limit warehouse-related injuries by requiring employers to establish and implement an injury reduction program, evaluate certain jobs for ergonomic injury risks, correct risk factors, and provide injury reduction training.

Background: New York State’s Commitment to Warehouse Worker Protection

In 2022, New York State passed the Warehouse Worker Protection Act (2022 WWPA). The 2022 WWPA requires covered companies to disclose production quotas to warehouse workers. It also prohibits companies from adopting quotas that would prevent employees from taking legally protected breaks, and prohibits retaliation against employees who do not meet an undisclosed quota. The 2022 WWPA contains a provision allowing employees to request quota-related information without fear of retaliation.

Warehouse Worker Injury Reduction Program: Status and Overview

Passed by both houses of New York’s legislature (Senate and Assembly) but not yet delivered to the Governor for signature, the Warehouse Worker Injury Reduction Program (S5081 A8907) requires employers to establish an injury reduction program designed to identify and minimize the risks of musculoskeletal injuries and disorders (a/k/a ergonomics injuries) among workers involved in performing manual materials handling tasks.

Citing injury statistics, the bill states that “the warehouse industry in New York state reports a rate of the most serious work-related injuries involving lost time or restricted duty (7.8 cases/100 full-time workers) that is more than five times the average rates of these types of injuries for all private industry in New York state (1.5 cases/100 full-time workers).”

Key Definitions, Coverage, and Effective Date

If signed into law in its current form by the Governor, the bill has an effective date of January 1, 2025.

The bill defines several key terms:

  • “Musculoskeletal injuries and disorders” means work related injuries, or disorders, of the muscles, nerves, tendons, ligaments, joints, cartilage of the upper and lower limbs, neck and lower back (including spinal discs) that: (a) are caused by sudden or sustained physical exertion; or (b) are not the result of any instantaneous non-exertion event, such as slips, trips, or falls.
  • “Qualified ergonomist” means an ergonomist who can demonstrate proficiency in the core, minimum competencies of ergonomics and injury prevention, as defined by the commissioner. Until the commissioner defines such competencies and approves ergonomists in accordance with such competencies, consultants approved by the commissioner under 12 NYCRR 59 and 60 with a credential as a certified safety professional or certified industrial hygienist shall be deemed to qualify as an ergonomist.

As to coverage, the bill applies to the same “Warehouse Distribution Centers” covered by the 2022 WWPA, but also amends certain portions of Section 780 of the New York Labor Law, which defines covered employers and employees:

  • “Employer” means a person who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary services, or staffing agency, independent contractor, or any similar entity, employs or exercises control over the wages, hours, or working conditions of one hundred or more employees at a single warehouse distribution center or one thousand or more employees at one or more warehouse distribution centers in the state.
  • “Employee” means an employee who is not exempt from the minimum
    wage and any overtime compensation provisions of this chapter and any
    applicable minimum wage orders and who works at a warehouse distribution center and is subject to a quota as defined in this section; provided, however, that “employee” does not include a driver or courier to or from a warehouse distribution center.

Requirements: Program, Evaluation, Training, Consultation

The law imposes several key requirements on employers, effective January 1, 2025 if the Governor signs the bill without altering it.  Each is outlined below.

  • Injury Reduction Program. Covered employers must establish and implement an injury reduction program designed to identify and minimize the risks of musculoskeletal injuries and disorders among workers involved in performing manual materials handling tasks. The program must include:
    • worksite evaluation;
    • control of exposures, including pace, which have caused or have the potential to cause musculoskeletal injuries and disorders;
    • employee training;
    • on-site medical and first aid practices; and
    • employee involvement.
  • Written Work Site Evaluation. Covered employers must ensure that each job, process, or operation of work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall have a written work site evaluation by a qualified ergonomist for risk factors which have or are likely to cause musculoskeletal injuries and disorders. Such risk factors shall include but are not limited to:
    • rapid pace,
    • forceful exertions,
    • repetitive motions,
    • twisting,
    • bending, and
    • awkward postures and combinations thereof that caused or are likely to cause musculoskeletal injuries and disorders.

Such evaluations must be conducted initially and “reviewed and updated” at least annually.  Further, employers must provide copies of the evaluations to employees upon request, within one business day.

Fix Risk Factors. Covered employers must correct, in a timely manner, any risk factors identified as having caused or being likely to cause musculoskeletal injuries and disorders. For any corrections which require more than thirty days to complete, the employer shall revise, as needed, and provide a schedule for such proposed corrections. The schedule shall be included in the evaluations provided to workers and their representatives.

Injury Reduction Training. Covered employers must provide injury reduction training to all employees involved in performing manual materials handling jobs and tasks at the warehouse during normal work hours and without suffering a loss of pay. Such training shall be provided in a language and vocabulary that the workers understand and shall be repeated annually. The training shall also be provided to the workers’ supervisors.  The training must include:

(a) The early symptoms of musculoskeletal injuries and disorders and the importance of early detection;

(b) Musculoskeletal injury and disorder risk factors and exposures at work, including the hazards posed by excessive rates of work;

(c) Methods to reduce risk factors for musculoskeletal injuries and disorders, including both engineering controls and administrative controls, such as limitations on work pace and increased scheduled and unscheduled breaks;

(d) The employer’s program to identify risk factors as required under this section and prevent musculoskeletal injuries and disorders, including the summary protocols for medical treatment approved by the employer’s medical consultant;

(e) The rights and function of workplace safety committees established under section twenty-seven-d of this chapter and the rights of employees to report any risk factors, other hazards, injuries or health and safety concerns; and

(f) Training on the unlawful retaliation of any provision in this section, including the disciplinary actions required when supervisors or managers violate the law or policy, as well as the employer’s policy prohibiting any workplace discrimination.

Medical Office/First Aid Staffing. Any on-site medical office or first aid station in covered warehouses that sees workers with symptoms of musculoskeletal injuries and disorders shall be staffed with medical professionals operating within their legal scope of practice.

Consultation with Employees. Covered employers must ensure that employees and their designated representatives are consulted both before and during the development and implementation of all aspects of the program.

**

Please reach out to the authors of this alert or another Seyfarth contact if you wish to discuss these developments.

By Jacob RoesPatrick Joyce, Ilana Morady, and Adam Young

Seyfarth Synopsis: The Cal/OSHA Standards Board unanimously voted to approve Cal/OSHA’s indoor heat rule at the June 20, 2024 Standards Board meeting. Employers should be prepared to comply within the next 30-60 days.

Originally expected to be approved at the Standards Board’s March 21, 2024, meeting, the Cal/OSHA indoor heat rule underwent minor revisions before it was reintroduced to the Board for adoption at the June 20, 2024, meeting. The Board unanimously adopted the rule.

As detailed in our prior blog post, the indoor heat rule was rejected in March due to the state Department of Finance withdrawing a portion of its Standardized Regulatory Impact Assessment (SRIA) on the eve of the scheduled vote.

Between the March and June meetings, the Standards Board issued a slightly modified draft exempting correctional facilities, clarifying use of the “heat index” chart, and making other minor revisions. The approved draft rule maintains previous requirements for heat illness prevention plans, training, temperature trigger points of 82°F and 87°F, temperature monitoring, administrative and engineering controls, water provision, access to cool-down areas, acclimatization procedures, and emergency response protocols.

What’s Next

The indoor heat rule will now be sent to the Office of Administrative Law (OAL), which will review it for compliance with the California Administrative Procedure Act and integrate it into the administrative rules. The OAL has 30 days to approve or disapprove the indoor heat rule. The Board Chair informally requested the OAL to expedite finalization of the regulation. The Cal/OSHA Deputy Chief noted that he will request immediate enactment of the regulation upon OAL approval, though immediate enactment is not guaranteed.

If the OAL approves the rule but does not make it effective immediately, employers can expect an effective date of October 1, 2024. If OAL makes it effective immediately, employers can expect an effective date as early as August 1, 2024. The final approved text of the indoor hear rule can be found here https://www.dir.ca.gov/oshsb/documents/Indoor-Heat-updated-txtbrdconsider.pdf.

Workplace Solutions and Implementation

With the rule approved by the Standards Board, employers should be prepared to comply within the next 30-60 days. For a detailed analysis of the rule and its background, refer to our prior blog post.

While the rule has gone through minor revisions since the March 2024 meeting, key requirements remain for a written policy, training, temperature trigger points, temperature monitoring and logging, administrative and engineering controls, water provision, cool-down areas, acclimatization, and emergency response.

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. YoungDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration’s (“OSHA”) Hazard Communications (“HazCom”) Standard was the most frequently cited general industry standard in the past fiscal year.  OSHA recently announced a final rule that will update the current HazCom Standard to require new information on Safety Data Sheets and labels. The updated standard takes effect on July 19.

Image from OSHA.

OSHA’s HazCom Standard, the most frequently cited general industry standard, is being updated to align with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals.  The updated standard includes revised criteria for classification of certain health and physical hazards, revised provisions for updating labels, new labeling provisions for small containers, new provisions related to trade secrets, technical amendments related to the contents of safety data sheets (SDSs), and related revisions to definitions of terms used in the standard.

Chemical manufacturers, importers and distributors have until January 19, 2026 or July 19, 2027 to comply with the new rules.  The compliance deadline will depend on whether they are evaluating substances or mixtures.

Employers who use products that fall under the standard must revise their HazCom programs, labels and training by July 20, 2026 or January 19, 2028, subject to whether they are using substances or mixtures.

Given the prevalence of products that fall under this standard and the frequency of HazCom citations, employers should use this announcement as an opportunity to review their HazCom programs and develop a plan to ensure compliance by the respective deadline.  Employers should consult experienced OSHA counsel to help review their HazCom program and limit their exposure.

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

Seyfarth Synopsis: Numerous business groups led by the U.S. Chamber of Commerce sued the Occupational Safety and Health Administration over the Agency’s new walkaround rule. The suit, Civil Action No. 24-271, was filed last week in federal court in the Western District of Texas, challenging the legality of the recent regulation that expanded workers’ rights to bring in outside representatives during OSHA safety and health inspections.

The new OSHA walkaround rule expands the scope of who may lawfully participate in an OSHA walkaround inspection at a private employer. We previously blogged on the new rule here.  Under existing law, employees can designate authorized representatives to join OSHA inspections.  The general rule is that those representatives “shall be an employee of the employer.”  Existing regulations provide for exceptions where the presence and assistance of the third party is “reasonably necessary” to conduct an effective inspection, with examples of an “industrial hygienist or a safety engineer.” 

By contrast, the new rule taking effect May 31, 2024 would change the default to allow employees and third parties representatives not affiliated with the employer, such as non-employee union organizers.  The new rule further expands who may qualify as “reasonably necessary” to assist the OSHA inspection, expanding the scope to include individuals with skills and knowledge who are not safety professionals. Critics of the new rule argue that it is intended to allow unions access to non-union workplaces for the purpose of union organizing activities.  The presence of third parties on site may also jeopardize the confidentiality of trade secrets and commercial information.

This new OSHA walkaround rule reflects a long-standing effort to allow more third parties into OSHA inspections. The Courts struck down a prior attempt to permit more third party walkarounds. In NFIB v. Dougherty, No. 3:16-CV-2568-D, 2017 WL 1194666 (N.D. Tex. Feb. 3, 2017), a Texas federal court blocked the Obama-era regulation on procedural grounds, for failure to fulfill notice and comment requirements.  Though the new Biden-era rule went through a notice and comment period, the Chamber’s Complaint for Declaratory and Injunctive Relief argues that the new rule violates the Administrative Procedures Act, as well as the Fifth Amendment, Regulatory Flexibility Act, and the limitations of OSHA’s statutory authority under the OSH Act.

As the new rule is scheduled to take effect May 31, 2024, we are closely watching the litigation and tracking whether the new rule will been enjoined. 

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, 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.