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

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

As the holiday shopping season approaches, OSHA has previously reminded retail and hospitality employers of the importance of taking safety precautions during the holiday season’s major sales events, such as Black Friday.

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

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

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

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 Mark A. Lies, II,  Adam R. Young, and Daniel R. Birnbaum

Seyfarth Synopsis:  The flu and cold season is now approaching. Employers face concerns about how to respond to highly infectious diseases when an employee reports such illness. Seasonal illnesses have the potential to infect employees and shut down operations because of employee absence due to illness. Employers must consider methods to keep their employees healthy and productive while not running into legal pitfalls.

With the return to winter weather, the cold and flu season is once again upon us.  This creates challenges for employers. Seasonal illnesses have the potential to spread throughout the workforce, and negatively impact operations.  Companies should create a plan to respond to infectious diseases, including how to limit the spread of the disease within the workplace without violating any applicable laws or regulations.  Employers should also encourage employees to get flu shots and practice good hygiene at work.  Please click on this article for more detailed guidance for employers on dealing with infectious diseases during flu and cold season.

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 or the Workplace Policies and Handbooks Team.

By Joshua M. Henderson, Ilana R. Morady, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On November 6, 2018, the California Office of Administrative Law approved Cal/OSHA’s emergency regulation for the electronic submission of CY 2017 Form 300A on Occupational Injuries and Illnesses.  Covered employers will be required to submit their Forms to Federal OSHA by December 31, 2018.

As we previously blogged, businesses operating in California that would be required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed in Appendix H of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage). The reporting deadline is December 31, 2018. Beginning in 2019, the reporting deadline would be March 2 of the year after the calendar year covered by the form(s). So, for example, CY 2018 300A Forms will need to be submitted by March 2, 2019.

Covered employers in California should submit their 300A summaries by following the instructions on federal OSHA’s Injury Tracking Application webpage.

Although the formal rulemaking process needs to be finalized before the emergency regulations are permanent, including a public comment period and public hearing, employers should plan to meet the upcoming December 31, 2018 deadline.  See any significant changes to the requirements summarized above.

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 Brent I. Clark, James L. Curtis, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Last month at the 2018 National Safety Council (NSC) Congress the speakers noted that “safety programs shouldn’t end when employees walk out the door and get into a vehicle to drive.”  The session was presented by Karen Puckett, the Director for the Center for Environmental Excellence Division of Enterprise Development at the University of Texas at Arlington, and Lisa Robinson, Senior Program Manager for Employer Transportation Safety, for the NSC. 

National Highway Traffic Safety Administration statistics provided that in 2017 transportation deaths from crashes were the leading cause of workplace deaths in the USA.  These statistics are often lost on safety professionals because OSHA has no jurisdiction over transportation incidents on public roads.  Additionally, 2016 Bureau of Labor Statistics data show that 40% of employment fatalities were due to transportation incidents.

Puckett noted that the goal for the NSC’s program was to have considered the best practices for employees who drive for work.  This employment-based driving included not just fleet trucks and other vehicles, which are normally considered in company employee driving policies and training programs, but also any personally-owned employee vehicles and rental cars, vans, and other trucks that employees may use while doing company business.  Puckett explained that vehicles outside of the regular company fleet are often overlooked.

Puckett’s key takeaway was that the company’s personnel policy on driving and accident prevention and the related training materials and systems need to incorporate a recognition of these powerful statistics.  Employers need to build a workplace that promotes responsible driver behaviors, maintenance procedures and records, and effective training programs.

Robinson noted that the employer may also face considerable liability for any fatalities that come from employees driving on company business, however that is demanded by state law in the many states and localities the company may operate in.  Perhaps common sense behaviors for employee drivers to know are company policies prohibiting driving impaired by drugs or alcohol, driving while using a cellphone such as checking email, texting, or using the phone.  Many company policies do not incorporate these kinds of prohibitions.

Robinson concluded by illustrating numerous multi-million dollar jury verdicts and settlement agreements where employers were held responsible — even some where the employee was involved in activities or behaviors that some might reasonably suggest were not in the line of their employment.

For your further information, we have previously blogged on these related issues, including Drive Much? NIOSH Focus on Workplace Safety for Employees Who Drive for Their Job, President Declares “National Impaired Driving Prevention Month”, Asleep at the Wheel: Trucking Company’s Sleep Apnea Policy and Procedures Reviewed by Federal Courts, Impact of Driver Compensation on Commercial Motor Vehicle Safety, Eleventh Circuit Finds Insurance Carrier Responsible In Georgia For Harm Done by Intoxicated Employee, Employees Driving In Illinois? What Employers Need to Know, and Distracted Driving Leads to Employee Accidents and Fatalities.

Employer Takaway

For employers the key points from this session are that employee behavior on public roadways could have a big impact on the workplace.  The employer should have appropriate policies and training systems in place as part of a comprehensive safety program, with an aim to “improve your workplace driving safety culture.”

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

Seyfarth Synopsis: CalOSHA published a news release TODAY, on a new emergency regulation for the electronic submission of CY 2017 Form 300A on Occupational Injuries and Illnesses.  CalOSHA submitted the rule yesterday, and will allow public comments until Tuesday, October 30th, with the intention of adopting it as final by November 5th!

According to CalOSHA, businesses operating in California that would be required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage). The reporting deadline would be December 31, 2018. Beginning in 2019, the reporting deadline would be March 2 of the year after the calendar year covered by the form(s). So, for example, CY 2018 300A Forms would be submitted by March 2, 2019.

Cal/OSHA submitted the emergency regulation amending recordkeeping sections 14300.35 and 14300.41 of Title 8 of the California Code of Regulations to the Office of Administrative Law (OAL) on October 25.  Interested persons have until “October 30 to submit comments on the proposed emergency regulation.” OAL will have until November 5 to review and adopt or deny the proposed regulation.

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 Jaclyn Gross and Colleen M. Regan

Seyfarth Synopsis: Halloween is lurking just around the corner, and workplace festivities may present unusual challenges. Unsafe or offensive costumes, religious discrimination, and harassment are among the issues potentially facing employers around this time of year. Here are some tips to avoid the tricks and enjoy the treats.

Exorcise Your Right to Have Fun

It’s not uncommon to allow employees to dress up when Halloween falls on a weekday, but without proper guidelines, it can quickly lead to complications. Employers should urge employees to be mindful when choosing costumes that they are still expected to comply with any workplace anti-discrimination and anti-harassment policies. If the workplace typically requires a dress code, employers permitting Halloween costumes should announce that, while employees may dress up, they should utilize sensible judgment.

Employees should be reminded to avoid costumes that poke fun at a particular culture, that are overly sexy, or that relate to a particular religion, as employees with differing backgrounds or beliefs may take offense. Political costumes can be contentious as well, especially when, as is the case this year, Halloween occurs just before Election Day.

There are also special considerations with costumes when it comes to certain environments. For instance, costumes for healthcare professionals working with patients that conjure thoughts of death or injury, and excessively scary costumes in places catering to children, should be reconsidered. These concepts ought to be applied to any guidance pertaining to decorations as well.

If You’ve Got It, Haunt It

Halloween often prompts individuals to dress provocatively, which, in many cases, is probably against the company’s dress code. However, previous sexual harassment cases demonstrate that sometimes a costume doesn’t need to be overtly suggestive to elicit inappropriate comments.

This issue is particularly crucial given the recent spike in #MeToo lawsuits and several incoming California laws aiming to strengthen enforcement of sexual harassment laws and make it easier for victims to pursue civil claims. Therefore, employees should be reminded that, regardless of a coworker’s Halloween attire, there’s no excuse to make statements that would otherwise be unacceptable.

Oh My Gourd

While Halloween is largely celebrated as a secular holiday, religious discrimination can still be a concern, and employees should not be penalized for opting out of the festivities. This has been a common issue for the EEOC with respect to Jehovah’s Witnesses, who do not observe certain holidays. For example, this was previously addressed when an employee was fired for refusing to participate in a workplace Halloween party, after notifying her employer that it was against her religious beliefs to do so. Additionally, due to its pagan roots, some employees may believe Halloween to be a celebration of death or the occult, and take offense to any pressure to join in.

The Fair Employment and Housing Act and the California Workplace Religious Freedom Act both prohibit discrimination on the basis of religion, and require employers to accommodate employees’ religious practices and observances. Some employees (such as those who practice Wicca, for example) might consider Halloween to be a religious holiday, and request time off from work. Notably, FEHA protections apply to more than just the traditional, more commonly recognized religions, so long as the employee’s beliefs are “sincerely held.” To avoid running afoul of these regulations, employers should have a plan for responding to such requests.

Let’s Get This Party Startled

An important, but easy to overlook, concern is the potential for costumes to create a safety hazard. Loose-fitting costumes or those with pieces that hang away from the body can be dangerous to employees working with heavy machinery or driving a vehicle. And, even employees’ innocent attempts to frighten coworkers can end in injury. Employers who wish to avoid workers’ compensation claims and complaints filed with CAL/OSHA should remind employees to dress with safety in mind.

Finally, there is also a risk that certain costume pieces will result in employees feeling threatened. A realistic replica of a weapon can cause panic and accessories that can be used as a weapon may cause fear and actual harm. In order to protect the physical and mental safety of all employees, employers should discourage costumes involving weapons.

Workplace Solutions: Employers should feel free to allow some Halloween fun at work, as long as employees are made aware of expectations to comply with company policies, respect their colleagues, and maintain safe working conditions.

Edited By: Coby Turner

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

Seyfarth Synopsis: This week at the 2018 National Safety Council (NSC) Congress the speakers on this Executive Forum noted that “automation, wearables, augmented reality, virtual reality, drones, big data, machine learning, the Internet of Things – emerging technologies are now almost too numerous to keep track of.”  This Executive Forum offered an in-depth look at the tools and trends that organizations are beginning to adopt and provided some practical comments for EHS professionals who need to prepare themselves for a changing safety environment.  The session was presented by Michelle Garner-Janna, CSP, CPE, Executive Director – Corporate Health & Safety, at Cummins, and Lydia Boyd Campbell, MD, MPH, Chief Medical Officer, at IBM.

In her presentation Garner-Janna noted that Cummins is a global power leader with 60,000 employees spread around the world in 190 countries.  The company has worked to develop its health and safety programs for what she deemed “Industry 4.0”, advanced systems which incorporate (1) a secure network; (2) standard safety core systems; (3) Internet of Things (IoT) connectivity; (4) advanced technology mobile virtual reality (VR)/augmented reality (AR); and (5) big data advanced analytical systems.  An example of the Industry 4.0 at work is the company’s Powered Industrial Vehicle Positioning System, known as Essensium.  The Essensium System is an automated and augmented reality system used to move unmanned powered industrial trucks through warehouses in materials handling and storage functions.

Garner-Janna explained the Industry 4.0 systems being explored are exoskeletons and wearable technology.  The company is also currently trying out a VR system to provide health and safety training at a facility in China.

Campbell indicated that IBM has 380,000 employees.  Health and Safety personnel represent less than 6% of those employees onsite, and there is one H&S employee for every 1000 employees.  To compensate for reduced safety staffing, IBM’s H&S services group has been developing an integrated artificial intelligence system based on its “Watson” application.  With this system, the company has set-up a World-wide H&S call center in India that receives telephone calls and emails relating to safety and health concerns, translates the many languages, and routes the issues to “the right people” to work on resolution.  The Watson based system is also analysing the “tone” of callers’ voices to make sure that potentially high level of stress or problems are escalated appropriately.  The system is also now being reprogrammed to flag and handle personally sensitive data that employees may try to submit.

The emerging technologies and issues raised by speakers from Cummins and IBM demonstrate the changing nature of the safety environment and opportunities for safety professionals and employers to incorporate changing technology and big data into their approaches to protect employees.  These developments should be closely monitored by employers.

We have previously blogged on automation and issues related to the future of safety technology, including Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry, A Global Perspective on the Future of Wearable Technology, An Aging America and the Future of Paid Family Leave, and Robotics, Automation, and Employee Safety for the Future Employer.

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: Brent I. Clark, James L. Curtis, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  The Occupational Safety and Health Administration (OSHA) has initiated a Site-Specific Targeting 2016 (SST-16) Program using the injury and illness information electronically submitted by employers to initiate OSHA inspections.  OSHA Directive No. 18-01, CPL 02, effective October 16, 2018.

In its news release about the Site-Specific Targeting 2016 Program, OSHA indicated that it “will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection.”  The agency will then perform comprehensive inspections of employers who are selected for Program.  For CY 2016, OSHA required employers to electronically submit Form 300A (Summary of Work-Related Injuries and Illnesses) by December 15, 2017. The deadline for submitting the 300A data for CY 2017 was July 1, 2018, though OSHA indicted that employers may still provide this information to the database.

The SST-16 indicates that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.”  The inspection cycles are generated using software that randomly selects the establishments from among those that fall into the categories above. According to OSHA, the purpose of including non-responding employers on the inspection list is to deter employers from failing to report their injury and illness information in order to avoid inspection.  Similarly, OSHA will select a sample of low DART rate establishments to verify the reliability of the 300A data being submitted to the agency.  The scope of the inspection will be comprehensive, and not simply limited to recordkeeping practices or potentially hazardous areas or operations that caused an elevated DART rate.  Employers who have received a comprehensive safety or health inspection within 36 months of the creation of the SST-16 inspection list will not be inspected again.

Going forward, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses, will be required to electronically submit their 300A forms to OSHA each year by March 2.

In the SST-16, OSHA clearly lays out how the agency plans to use the injury and illness data it now electronically collects from employers.  Given the tangible impact the data will have on programmed OSHA inspections, employers are advised to take a proactive approach to monitor and address patterns in their injury and illness rates and should take care to ensure they are submitting accurate records to OSHA.

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 Mark A. Lies, II,  Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing;  “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”  The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.  The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs.  Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested.  OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

  1. OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs.  With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.”  The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month.  OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party.  The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting.  According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.  Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace.  A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires.  The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses.  Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team, Labor & Employment, or the Workplace Policies and Handbooks Teams.

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

Seyfarth Synopsis:  Last week, Governor Brown signed into law Assembly Bill No. 2334, Occupational Injuries and Illness, Employer Reporting Requirements, and Electronic Submission.

A six-month statute of limitations period currently applies to all citations issued under Cal/OSHA. Assembly Bill 2334 will allow the California Division of Occupational Safety and Health (Cal/OSHA), starting January 1, 2019, to cite employers for injury and illness record-keeping violations “until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist.” In theory, the six-month limitation period could, depending on the circumstances, extend up to the five years that employers must maintain injury and illness records.  The limit firmly remains six months for federal OSHA.  See OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years.

The new law also may require the state to establish an advisory committee to determine whether employers should be required to file copies of their workplace injury and illness (WII) records with the state.

The law’s provisions leave many questions to be determined.  For example, if federal OSHA drops the requirement for employers to electronically file summaries of each injury with the Agency, would the committee recommend Cal/OSHA require employers to file with the state, instead?  It may well be quite a while before the committee is even created, much less makes recommendations to Cal/OSHA because the committee would conceptually be formed after federal OSHA loosens current filing requirements.

The bill appears to be a direct reaction to the Trump administration’s efforts to roll back record-keeping mandates set during the previous administration. Under the Obama administration, federal OSHA established a 5-year limit for record-keeping violations, however that limit was set aside by a congressional resolution signed by President Trump. The Trump Administration also substantially diminished employer obligations to electronically submit injury and illness data to federal OSHA.

We have frequently blogged on the contentious federal WII Rule.  See Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting Requirements, All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

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.