Our OSHA Practice Group wrapped up the final full day of the ABA Workplace and Occupational Safety and Health Law Committee’s Midwinter Meeting in San Juan with sessions that took a deep dive into the future of AI in safety, trial advocacy in OSHA litigation, necessary modernization of longstanding OSHA standards, and the ethical landscape surrounding inspections and citations. Here are our key takeaways from Friday’s programming.

AI and Safety: The Good, the Bad, and the Really Ugly

The morning opened with a discussion on the rapid integration of artificial intelligence into workplace safety programs. Panelists explored how employers are experimenting with AI tools for hazard identification, PPE detection and enforcement, real‑time alerts, and even predictive modeling of worker behavior—functions sometimes referred to as agentic AI.

But the enthusiasm for innovation came with caution. Panelists emphasized several legal and practical risks:

  • Discoverability: AI‑analyzed videos and data streams documenting conduct in the workplace may be subject to disclosure in an OSHA inspection or in litigation, raising the risk of OSHA using the data to issue additional citations.
  • Privacy & Employee Relations: Employees increasingly express concerns about over‑surveillance and whether AI, rather than a human, is making decisions that affect safety compliance and discipline.
  • Ethical & Transparency Concerns: Employers should communicate clearly about what data is being collected, how it is being used, and how accuracy will be validated. Over half of U.S. states have biometrics privacy laws, which regulate how biometrics information may be obtained, stored, and used.
  • Regulatory Guardrails: With potential federal and state restrictions on AI use, companies should consider early adoption of internal “guardrails” for responsible implementation.

The overall message: AI can enhance safety but requires careful planning, thoughtful roll‑out, and attention to employee trust and legal exposure.

Tips on Direct and Cross Examinations: Getting Admissions

The next session offered a practical and engaging look at trial techniques through a mock direct and cross examination. Panelists provided a number of takeaways for practitioners preparing witnesses for OSHA‑related proceedings:

Direct Examination

  • Use the “perimeter technique”: outline the story, then fill in the details.
  • Ask open‑ended questions—who, what, where, when, how, and occasionally why.
  • Know your forum: ALJs, juries, and judges respond differently to emotional versus record‑driven presentations.
  • End with a strong point that reinforces your theory of the case.

Cross Examination

  • Begin with clear, foundational facts and build your narrative from there.
  • Recognize your goal—creating a record versus eliciting emotion.
  • Avoid unnecessary aggression. In the OSHRC context, professionalism and respect are especially important.

The session reinforced that preparation, clarity of purpose, and audience awareness remain central to effective advocacy.

Modernization of Standards: LOTO, Machine Guarding, and Fall Protection

As workplaces adopt more advanced automation, this panel highlighted the widening gap between OSHA’s aging standards and today’s technology‑driven operations. Much of the discussion focused on lockout/tagout, where OSHA’s rules still assume a world of simple machinery and fail to reflect cutting edge robotics, modern interlocks, two‑hand controls, and integrated safety control systems.

Panelists also noted the growing divide between federal and state activity. While federal rulemaking inches forward, states continue to move faster on issues like heat illness, ergonomics, and workplace violence, creating a patchwork of expectations for employers.

Technology’s role in enforcement sparked debate as well. Some speakers pointed to the likelihood of OSHA using more electronic injury data and predictive tools, while others questioned how transparent and challenge‑proof such methods would be.

Underlying these topics was a broader tension between prescriptive rules and performance‑based standards. With technology evolving faster than regulation, panelists questioned how long older standards can stretch before they must be rewritten. From a litigation standpoint, several noted that defense counsel may increasingly argue that outdated regulations offer insufficient “fair notice” when applied to modern equipment.

Inspections and Issuing Citations: Ethical Obligations of Inspectors (Ethics)

The final session of the day took a close look at the ethical framework governing OSHA compliance officers (CSHOs) during inspections.

Panelists explained that the OSH Act, OSHA’s regulations, and the Field Operations Manual (FOM) collectively outline how inspectors must plan, conduct, and document inspections. The panelists, who all previously served in government roles, highlighted several important points, from the government’s perspective:

  • Pre‑Inspection Planning remains critical for ensuring both fairness and efficiency.
  • Process Integrity: The FOM and supplemental directives create guardrails for how hazards are documented, how evidence is collected, and how citations are issued.
  • Post‑Inspection Practices: Some attendees noted recent trends, such as closing conferences conducted by email or skipped entirely. Panelists suggested that employers escalate such concerns to the Area Director if necessary.
  • Instance‑by‑Instance Citations: The panel discussed when multiplying violations may be appropriate and when doing so might risk ethical overreach.

This session underscored the importance of understanding the procedural and ethical boundaries that guide enforcement activity.

We appreciated the thoughtful discussion throughout the week and look forward to monitoring how these emerging issues—AI integration, standard modernization, trial techniques, and enforcement ethics—continue to shape OSHA practice in 2026 and beyond.

If you’d like our team’s deeper analysis or help preparing for any of these developing trends, we’re always happy to connect.

We are back in San Juan, Puerto Rico for Day 2 of the American Bar Association’s Workplace and Occupational Safety and Health (WOSH) Committee Midwinter Meeting. Today’s sessions featured a diverse mix of experts—behavioral psychologists, management and employee-side attorneys, consultants, and industry representatives—discussing workplace violence, settlement strategies, drug and alcohol challenges, newly-proposed regulations, and broader organizational issues affecting OSHA practice.

Report from the ABA Section of Labor and Employment Law

The morning opened with remarks from leaders within the ABA Section of Labor and Employment Law, who highlighted the Section’s structure, ongoing initiatives, and opportunities for involvement beyond the WOSH Committee. They emphasized the Section’s inclusive governance model, its student advocacy programs, and its expanded resources—including a growing podcast series and development fund aimed at increasing membership.

Workplace Violence and Threat Assessment

The first substantive session of the day dove into workplace violence, featuring a detailed Q&A with Dr. Russell Palarea, a threat assessment expert. The discussion explored what factors influence violent behavior—including anger, financial strain, ideology, notoriety, or delusional beliefs—and clarified that behavioral threat assessment is not about “predicting” violence but understanding probabilities along a continuum of escalating stressors.

Dr. Palarea walked through key models such as the Secret Service’s targeted violence principles, the Calhoun & Weston “Path to Violence” model, and his own “Violence Vortex,” which charts how stress may evolve into anger and action. The panel also emphasized the importance of holistic threat assessments—incorporating organizational, social, psychological, physical, and legal factors—and the need for employers to share relevant information when concerns arise. Finally, the panel discussed boundary-setting, the strategic use (or non-use) of restraining orders, and how police presence can either diffuse or escalate a situation depending on context.

Getting to Settlement: Innovative Strategies to Resolve Complex Cases

The next panel examined settlement dynamics in OSHA matters, highlighting OSHRC’s encouragement of mediated resolution and the practical realities of navigating settlement discussions with government agencies. Former agency officials described institutional resistance—particularly among some enforcement personnel—to reducing large penalties, even where employers offer robust enhanced abatement directly (positively) affecting employee safety.

Panelists also noted challenges associated with escalated review by Regional Solicitors, the emotional dynamics that clients bring to settlement, and the impact of “public shaming” through press releases. The discussion underscored the importance of reframing abatement measures in terms of worker safety, building trust between parties, and leveraging soft skills to reach resolution—particularly in the aftermath of tragic incidents where emotions run high.

Breakout Session: Drugs and Alcohol in the Workplace

One of the breakout sessions focused on the complexities employers face balancing workplace safety with ADA considerations when drug and alcohol issues arise. The panel outlined the tension between drug testing programs and legal protections afforded to employees—emphasizing that while the ADA does not protect current illegal drug use, it does protect employees using prescribed medications that may impair function.

Key takeaways included:

  • Positive tests for legal, prescribed drugs may trigger the duty to engage in the interactive process.
  • Employers must maintain confidentiality regarding accommodations.
  • Potential claims arising from drug-use-related issues include ADA discrimination, privacy claims, retaliation, tort liability, and OSHA or PAGA actions.
  • OSHA does not have a general drug/alcohol rule, but General Duty Clause citations remain possible.
  • The unpreventable employee misconduct defense may apply where employers can demonstrate all required elements.

Breakout Session: SVEP and VPP

The SVEP and VPP breakout panel’s takeaway was simple: now is the moment to sit down with OSHA leadership and tune up both SVEP and VPP so they work the way the regulators and employers need them to. On SVEP, the group flagged due‑process issues that stem from the program’s status as an OSHA policy (not statutory or regulatory), the unconstrained agency discretion, and the limited paths to challenge a designation. The panel urged revisiting the triggers so SVEP truly captures chronic bad actors (e.g., egregious or willful/repeat patterns) instead of tagging a company with an otherwise strong safety record after a single bad day. As a reminder, the current instruction keys eligibility to willful/repeat/failure‑to‑abate findings in fatality/catastrophe cases, at least two willful/repeat high‑gravity serious violations in non‑fat/cat cases, or any egregious case. The panel also called for sensible alignment of consequences and “exit ramps” such as mandatory follow‑ups, public posting on OSHA’s SVEP log, and removal that incentivize real programmatic fixes without branding good‑faith employers indefinitely. On VPP, the consensus was a need for modernization and relaunch with clearer, faster on‑ramps for multi‑site employers, stronger verification around SHMS and leading indicators, and a coherent interaction with SVEP so that one serious incident doesn’t automatically upend a robust, top‑tier safety program.

Heat Illness and Air Quality: State-Level Challenges and General Duty Clause Enforcement

The afternoon panel turned to heat illness—a topic that has gained national attention as OSHA continues its long‑running effort to promulgate a federal heat standard—and other unique regulations such as wildfire smoke exposure. Federal OSHA has never issued a heat stress regulation, but on August 30, 2024, the agency published a proposed rule, followed by a notice-and-comment period that closed just before the start of the Trump Administration. The proposal drew significant engagement, including 12 days of public hearings throughout the summer of 2025. The proposed standard would require employers to implement a written heat illness and injury prevention plan, adopt temperature-based triggers for protective measures, and utilize control strategies such as increased rest breaks, a buddy system, work area modifications, and hazard alerts.

OSHA also issued a Heat Illness Prevention National Emphasis Program (NEP) in April 2022, which provides guidance for inspections of indoor and outdoor worksites in high‑risk industries, emphasizing water, rest, shade, training, and acclimatization as core controls. On “heat priority days” (local heat index ≥ 80°F) and during National Weather Service heat advisories, OSHA will ask about employers’ heat programs during inspections and may conduct programmed inspections in targeted sectors. Extended through April 8, 2026, the NEP runs in parallel with OSHA’s heat‑rulemaking efforts and continued use of the General Duty Clause to address serious heat hazards now.

In the absence of a federal rule, state plans have taken the lead. California pioneered both outdoor and indoor heat standards. California’s outdoor heat protections apply year‑round and activate a heightened “high heat” protocol when temperatures become extreme. For indoor heat, the regulation includes clear triggers—82°F for initial protections and 87°F for escalated controls.

Panelists noted, however, that enforcement is challenging. California enforcement data showed that out of roughly 100 indoor heat investigations, only seven resulted in citations, underscoring the difficulty of recreating temperature conditions during an inspection after an employee complaint. Maryland, Minnesota, Nevada, New Mexico, Oregon, Illinois, and Washington, and other states, have enacted or proposed heat rules of their own, but each uses different temperature thresholds and requirements. As a result, compliance in one state—particularly California—does not guarantee compliance elsewhere and the variety of enacted and proposed regulations could pose substantial challenges for employers.

We are in San Juan, Puerto Rico for the American Bar Association’s Workplace Occupational Safety and Health committee’s midwinter meeting. Today’s sessions featured panels of employer and defense attorneys, representatives from various non-profit organizations dedicated to workers safety, and state regulatory agencies discussing the impact of recent deregulation, discrepancy in inspections and enforcement, and the evolution of state plans.

Less Enforcement in 2025/Deregulation

The day’s first panel discussed deregulation and enforcement trends by federal OSHA across the country, with some (disputed) data showing a drop in enforcement. The panel first focused on deregulation by the federal government. The panel highlighted the current administration’s well-publicized 10-to-1 deregulation approach. For those unfamiliar, the President signed an executive order that requires an agency to identify at least 10 existing rules, regulations, or guidance documents to be repealed each time it promulgates a single new rule, regulation or guidance. The panel stated that the methodology in deciding what is actually repealed is unknown, but suspect that deregulation may be a contributor to less enforcement from federal OSHA.

The panel also discussed the government shutdown in 2025 and the slowdown it created on federal OSHA. The panel noted that even in the present, many federal OSHA staff have not been able to catch up from the backlog they face from the shutdown. Some members of the panel noted that companies have not expressed or observed a slowdown. This is a trend that should be closely monitored in 2026.

There are proposals to deregulate some long-standing OSHA regulations and initiatives. For example, there is a proposal to no longer have the General Duty Clause apply in certain sectors, such as sports, entertainment, and hazard-based journalism. The panel believes this proposal is intended to clarify when the General Duty Clause applies but does not remove an employer’s duty to provide a safe workplace. Rather, it seeks to stop OSHA from citing hazards that cannot be eliminated without destroying the activity’s purpose.

Inconsistencies in Inspection Documentation and Witness Testimony

The panel highlighted a key issue that has persisted in many OSHA inspections and hearings: inconsistency in the CHSO’s notes from the inspection contradicting what a witness testifies at a hearing. The panel highlighted how in one recent case, the CSHO’s notes were not reflective of the witness’s testimony. The Administrative Law Judge ended up giving more weight to the witness’s testimony than the CSHO’s notes because the training records supported what the witness was saying. This is a good reminder for employers to identify whether what the CSHO summarizes in their notes accurately reflets employee interviews.

State Plans

State plans are moving to mirror federal OSHA’s position on important issues. Federal OSHA renewed its National Emphasis Program on heat injury and illness prevention in the Spring of 2025. Maryland is now the first state on the East Coast with a heat standard, enacted in 2024. California, Nevada, Oregon, and Washington have heat-related provisions on the West Coast. Virginia introduced legislation to have a heat standard by 2027. Regarding workplace violence, Maryland now requires public sector employers to have workplace violence policies by 2026.

Operationally, the panel noted there are challenges for state plan states related to investigations and enforcement. A major issue, which has been an issue for some time now, is staffing. In California, a consequence of the shortage issue is that Cal OSHA has not met their citation benchmark per federal OSHA’s audit of the state plan. The audit also found that Cal OSHA has poor documentation of hazard abatement. Something big to expect in the future for California is their version of the Worker Walkaround Rule. California’s goal is to mirror federal OSHA, but their current proposal to allow third parties in the inspection so long as they are deemed “reasonably necessary.” “Reasonably necessary” is based on relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills, and exceeds the equivalent federal provision.

We will continue to provide updates throughout the week.

The March 1st deadline for OSHA online reporting is approaching. Many employers are required to submit workplace injury and illness information electronically. Now is a great time to confirm whether your business needs to report.

Which Employers Are Required to Report?

You are required to complete OSHA online reporting if any of the following apply:

1. Establishments with 250 or More Employees

Establishments that had 250 or more employees at any time during the previous calendar year and is not in an industry listed in the Exempt Industries list in Appendix A to Subpart B of OSHA’s recordkeeping regulation and are required to keep OSHA injury and illness records must submit information from OSHA Form 300A electronically.

2. Establishments with at least 20 to 249 Employees in Designated Industries

Establishments with at least 20 employees at any time during the previous calendar year must report if they operate in industries that OSHA has identified as having higher rates of occupational injuries and illnesses. Employers must submit information from OSHA Form 300A electronically. These industries include, but are not limited to:

  • Manufacturing
  • Construction
  • Healthcare and social assistance
  • Warehousing and transportation
  • Agriculture, forestry, fishing, and hunting

Something important to note—part time employees and seasonal employees are considered a whole employee and taken into consideration when reviewing your company’s records to determine whether at least 20 employees worked at the facility/establishment at some point in the previous calendar year.

3. Employers With 100 or More Employees

Employers must also submit Form 300 Log and Form 301 Incident Report data for an establishment if it has 100 or more employees and is in an industry listed in Appendix B to Subpart E.

4. State Plans

Certain State Plans (e.g. Minnesota) require additional private sector establishments to submit 300A and 300/301 data. Employers should contact their State Plan for guidance about what is required to be submitted.

Important Reminders

  • Reporting must be completed online; paper submissions are not accepted.
  • The ITA system is available 24/7, linked here.
  • Employers should submit early to avoid technical issues or delays.
  • Failure to comply with OSHA reporting requirements may result in citations or penalties.

Employers who are unsure whether they are required to report should review OSHA’s recordkeeping requirements and consult with Seyfarth’s workplace safety attorneys.

Seyfarth Synopsis: Employers often fail to appreciate the ramifications of industrial hygiene data and medical records. Even non-detect records must be maintained for 30+ years and provided to employees or representatives upon request.

OSHA’s Access to Employee Exposure and Medical Records standard, 29 CFR § 1910.1020, is one of the most frequently misunderstood — and quietly enforced — provisions in the OSHA regulations. Although it does not impose exposure limits or medical surveillance obligations, it creates independent recordkeeping, retention, and access duties that often trip up employers during inspections, litigation, and employee requests.

Purpose of § 1910.1020

OSHA promulgated § 1910.1020 to ensure employees and their representatives have access to information necessary to understand workplace exposures and make informed medical decisions. The standard operates independently of whether another OSHA standard was violated about a substantive safety condition.

29 CFR § 1926.33 applies the requirements of  §1910.1020 to construction employers.

What Is an Employee Exposure Record?

Under § 1910.1020(c)(5), an employee exposure record includes any record containing information concerning exposure to toxic substances or harmful physical agents, including environmental monitoring, biological monitoring, and records reflecting the presence or use of hazardous substances.

Importantly, OSHA has confirmed through multiple standard interpretation letters that exposure records do NOT need to show exposure above a PEL or action level. See: https://www.osha.gov/laws-regs/standardinterpretations/1983-03-01.  A record is still an employee exposure for retention and access purposes, if it shows exposure at or above an occupational exposure limit (OEL), exposure below an OEL, exposure to an unregulated chemical, or a non-detect of chemicals.

What Is an Employee Medical Record?

An employee medical record includes records concerning an employee’s health status created or maintained by a health care professional, such as medical histories, exam results, and laboratory findings. 

But to be medical records, they must be created or maintained by medical professionals. Historical COVID screenings, incident reports, first reports of injury typically are not prepared by medical professionals and do not constitute medical records.

Retention Requirements

Exposure records must be retained for at least 30 years. Medical records must be retained for the duration of employment plus 30 years. These requirements apply even if operations cease.

Employee and Representative Access Rights

Section 1910.1020 grants employees and their authorized representatives a substantive right of access to existing medical and exposure records, not merely a right to inspect summaries or conclusions. Upon request, employers must provide copies of relevant records or make them available for examination and copying, generally within 15 working days. For exposure records, this right extends beyond an individual employee’s personal monitoring data to include records that reasonably indicate the employee’s exposure based on job classification, work area, or task. Authorized representatives, including unions and attorneys, may obtain exposure records without individual employee consent, while access to medical records requires the employee’s specific written authorization. Importantly, employers may not delay or deny access by asserting confidentiality concerns, acceptable exposure levels, or the absence of a regulatory exceedance; the standard focuses on transparency and informed decision-making, not compliance outcomes.

OSHA Enforcement and Compliance Risk Under § 1910.1020

Failure to comply with 1910.1020 and give employees access to applicable records can result in complaints to OSHA agencies and probable cause for OSHA agencies to inspect. This risk is heightened in unionized workplaces and workplaces with active union organizing campaigns. A single non-serious citation could come with a penalty of more than $15,000.  OSHA’s enforcement directives provide that an employer’s failure to provide access to employee exposure and medical records may be cited on a per-record basis whenever they are discovered during an inspection or complaint investigation. This means that for each record withheld, OSHA could issue a separate citation and penalty of more than $15,000. And unions proactively request and review records as part of health and safety advocacy or grievances — raising the stakes for employers who might otherwise treat exposure records as a low-priority administrative matter.

Employer Game Plan for Records Moving Forward

  • Notify employees of existence of exposure records through hazard communication program (provided in applicable training at the time of initial on-boarding).
  • Create separate medical file for employee medical records, created and maintained for length of employment +30 years, separate from other human resources file.
  • Engage onsite safety consultants through counsel to maintain privilege over conclusions and analysis, understanding that raw data is an employee exposure record.
  • Segregate industrial hygiene data from analysis, including for new reports and third-party analysis.
  • Provide employees and representatives with timely access to data, noting that employees can only get access to data potentially applicable to them in terms of time frame and portions of the facility in which they worked.  

Importance of Records to Liability for Worker’s Compensation and Personal Injury

These occupational exposure records and medical records may be critically important and the only evidence available in defending against current or future 1) worker’s compensation claims by employees and/or 2) third party personal injury claims by non-employees such as outside contractors or employees of staffing companies who may be on site in a “multi employer.”  Through these records, the employer may be able to dispute alleged occupational exposures that did not occur in fact, or was not sufficient to cause the complained-about disease.  

These records can also be helpful in defending lawsuits by employees who want to file tort actions outside of the Worker’s Compensation Act (and avoid the statutory exclusive remedy provision) by claiming that because of the work environment there was a “substantial probability” of developing an occupational health disease, for example, a respiratory disease. Also, noise monitoring records can be useful in defending future hearing loss claims many years after the employee’s retirement.

Americans With Disabilities Act (ADA) Compliance

Employee exposure records can also be used in the context of the ADA when an employee claims to have a “disability” and seeks a reasonable accommodation. If the monitoring shows that a respirator is required to perform the job and the employee cannot do so because of their disability, the employee may not be “qualified” to perform the work. In a potentially hazardous atmosphere, an employer cannot permit the employee to work without a respirator. An accommodation is not reasonable if it would expose the employee to illness or otherwise violate an OSHA standard.

By: Adam R. Young, Jennifer L. Mora, and Frederick T. Smith

Seyfarth Synopsis: President Trump’s December 2025 Executive Order signals a possible shift in federal marijuana policy, but many employers still have a lawful and legitimate basis to prohibit impairment at work. Employers that test for marijuana should continue to monitor legal developments and evolving legal risk. Moreover, because employees may not fully understand the implications of the Executive Order, employers should remind employees of their policy expectations.

Since 1970, marijuana has been classified as a Schedule I controlled substance, defined as having no currently accepted medical use and a high potential for abuse. Over the years, presidents have floated the idea of reclassifying marijuana but not taken steps to do so. In 2023, the Food and Drug Administration and the Department of Health and Human Services (DHHS) determined that marijuana has a currently accepted medical use, and DHHS recommended to the Drug Enforcement Agency that marijuana be classified as a Schedule III drug.   In May 2024 the United States Department of Justice (DOJ) published a formal proposal to reschedule marijuana from a Schedule I to a Schedule III drug. Schedule III drugs are defined as drugs with a moderate to low potential for physical and psychological dependence. Schedule III drugs are regulated by the Food and Drug Administration and the Drug Enforcement Agency, and they include acetaminophen (Tylenol) with codeine, ketamine, anabolic steroids, and testosterone. The slow rescheduling process is currently in process and awaiting an administrative law hearing.

On December 18, 2025, President Trump signed an Executive Order, “Increasing Medical Marijuana and Cannabidiol Research.” In it, he directed the DOJ to expedite the process of rescheduling marijuana from Schedule I to Schedule III. While this EO perhaps signals an intent to expedite and take political credit for the rulemaking process, rescheduling timeline remains uncertain..

This rescheduling marks a significant policy change and the practical implications for employers—particularly those with safety-sensitive workforces—remain complex. However, the proposed rescheduling of marijuana will not result in the  legalization of  recreational use.

The EO also tasked White House staff and Congress with “updat[ing] the statutory definition of final hemp-derived cannabinoid products to allow Americans to benefit from access to appropriate full-spectrum CBD products while preserving the Congress’s intent to restrict the sale of products that pose serious health risks.” Moreover, the EO tasked certain agencies with developing guidelines for hemp-derived cannabinoids, including specific limits on THC milligrams per serving and container, as well as required CBD-to-THC ratios.

Workplace Implications

Many states and several localities have laws regulating drug policies and drug testing and providing protections to recreational and medicinal marijuana users. Accordingly, employers must be cognizant of the specific landscape for their work forces. Even after rescheduling, employers will still be able to prohibit marijuana use and impairment in the workplace. Employers with drug testing programs who test for marijuana (THC metabolites) will not be prohibited from doing so by the rescheduling (but must remain mindful of restrictions and other limitations per applicable state and local law).

For many employers, the risks of impairment remain unchanged. The National Safety Council has long endorsed a zero-tolerance policy, emphasizing that no level of cannabis use is safe for employees, especially those working in roles where safety is paramount. That said, because no drug test can prove time of impairment, employers in states with overly restrictive marijuana testing laws will continue to grapple with balancing the risk of an employment claim against the risk of a workplace injuries due to drug use.

Legal Risks and ADA Considerations

Rescheduling may open the door to new challenges by applicants and employee s under the Americans with Disabilities Act (ADA). Historically, courts have consistently rejected ADA accommodation claims tied to individuals’ medical marijuana use because marijuana is an illegal drug under federal law. Once marijuana is classified as a Schedule III drug, employees may argue for ADA protections, creating potential litigation risk for employers. To date, most failure to accommodate marijuana claims have been brought under state disability discrimination statutes and other laws, so it remains to be seen whether reclassifying marijuana will lead to a significant increase in such claims.

Practical Steps for Employers

To prepare for this evolving regulatory and legal environment, employers should consider the following:

  • Review and update drug testing policies to ensure they address marijuana impairment if appropriate.
  • Reconsider policies for safety-sensitive positions, consistent with industry recommendations.
  • Train supervisors and human resources staff on recognizing and responding to impairment and handling accommodation requests.
  • Consult legal counsel regarding ADA risks and potential state-law claims tied to medical marijuana use.
  • Communicate clearly with employees about company expectations and the continued prohibition of use and impairment at work.
  • Monitor DOJ rulemaking and state-level developments to stay ahead of compliance requirements.
  • Educate employees to ensure they understand the implications of the EO.

For additional questions on this topic or any other workplace safety inquiry, please contact your Seyfarth attorney.

Under OSHA’s General Duty Clause, employers must provide a workplace free from recognized hazards likely to cause serious injury or death. OSHA regulations require PPE and respiratory protection where necessitated by the hazards at the workplace. Infectious diseases represent a recognized hazard at many workplaces across the United States (particularly in healthcare) and employers must implement appropriate procedures to protect employees.

For the past 50 years, employers have leaned heavily on guidance from the federal Centers for Disease Control and Prevention (“CDC”) to ensure that they had sufficient means of abatement in place.  Federal OSHA has long deferred to CDC recommendations when it comes to workplace health protocols—from COVID-19 to tuberculosis to seasonal flu. Employers across industries have looked to guidance from the National Institute of Occupational Safety and Health, a division of the CDC, as a resource for occupational safety and health best practices and recommended exposure levels for chemicals.   

Under the Trump Administration, the NIOSH workforce has been mostly eliminated. NIOSH may lack capacity to conduct research and make chemical exposure recommendations in the future.  HHS director Robert F. Kennedy Jr.  further has made public efforts to intervene in the CDC’s scientific recommendations, particularly with regard to virology and the efficacy of vaccines and treatments.

Important Questions on the Horizon

Whether it is COVID, tuberculosis, monkeypox, or a new global pandemic, employers will need to move forward in a new environment.

  • In light of recent developments at the CDC and dismantling of NIOSH, how do employers respond to an infectious disease outbreak at work? 
  • Should employers treat the CDC as a reliable partner for employee health and compliance purposes?
  • Will following CDC recommendations protect employees and ensure OSHA compliance?
  • Should employers rely on NIOSH for occupational health levels going forward?

CDC: Concerns as to Staffing, Science, and Stability

The CDC has shed nearly one-quarter of its workforce since early 2025, with thousands of employees laid off or having resigned. Sources report that up to 85% of NIOSH employees have left the agency in 2025.  The agency has been rocked by internal turmoil, including the ouster of Director Susan Monarez and a wave of policy reversals. The CDC has published guidance that has raised questions in the scientific community, though the agency has focused on childhood vaccines and over-the-counter medications with unproven links to autism. With this new focus, scientific projects on potential occupational exposures to infectious disease may have been disrupted or abandoned. Notably, the CDC reversed its COVID-19 vaccine guidance in October 2025 and general vaccine guidance in December 2025, shifting from universal recommendations to “consult your provider” language.

OSHA’s Position: CDC as a Reference, Not a Rule

OSHA does not mandate adherence to CDC guidance, but it often uses the CDC or NIOSH as a benchmark for what constitutes “reasonable” or “recognized” safety controls to protect employees from hazards, particularly in health care. In enforcement actions, CDC recommendations can serve as evidence of industry standards and recognized hazards to support a General Duty Clause Violations. But if those recommendations are unstable, politically influenced, or scientifically questionable, their value in employee health and OSHA compliance defense diminishes. Employers are ultimately accountable for protecting workers and must decide how much faith to place in these recommendations going forward.

What Should Employers Do?

On infectious diseases, employers will need to track guidance on pressing issues, as guidance and alternative source guidance may change abruptly. They should also track alternative sources of information. Four Western states formed the West Coast Health Alliance, focusing on providing evidence-based recommendations, initially regarding immunizations. This may be a helpful resource in the event of a controversial infectious disease issue.  The New England Journal of Medicine (NEJM) is partnering with the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota to create an alternative to the CDC’s Morbidity and Mortality Weekly Report (MMWR). The new initiative will involve a rapid digital alert system, published for free through a new section of NEJM Evidence, to disseminate essential public health data on outbreaks and other critical issues. This may provide additional data and information in the future.

NIOSH has been at the cutting edge of industrial hygiene research and recommendations for occupational exposure limits that may be lower than those covered by the OSHA standards. In the absence of NIOSH recommendations, employers would be wise to track developments from American Conference of Governmental Industrial Hygienists (ACGIH) TLVs, in the absence of future NIOSH guidance.

Document the Rationale

If you follow CDC or NIOSH guidance, you should make an effort to inquire whether it is consistent with scientific and guidance and document why the guidance should be valid in your context. If you deviate, show that what alternative authoritative source you are relying on, and why it is evidence-based.

For OSHA compliance, employers must treat CDC guidance treat as one input—not necessarily the final word. The burden of proof is shifting: it may no longer be enough to say, “we followed CDC guidance.” You must ensure that your infectious disease protocols are defensible and effective.

Seyfarth Synopsis: New York requires hospitals and nursing home employers to implement written workplace violence prevention plans, including hazard assessments, training, and incident logging within the year.

Health care employers have long faced liabilities relating to workplace violence, most commonly from patients and visitors.  Although no federal OSHA standards currently provide requirements for workplace violence in health care (though regulations are in development), federal OSHA aggressively regulates workplace violence hazards under its General Duty Clause, creating liability for health care employers who fail to proactively address hazards of workplace violence. OSHA provides a range of non-mandatory guidance on workplace violence prevention, but some states have begun issuing their own laws to specify requirements for safety programs and security personnel in health care, including onerous logging and notification requirements. California OSHA issued a workplace violence prevention standard applicable to health care in 2018. Connecticut, Illinois, Maine, Maryland, Minnesota, New Jersey, Oregon, and Washington have enacted other requirements.  Other states have pending requirements, including Massachusetts, Pennsylvania, and Virginia.

New York State has followed suit and has mandated new workplace violence compliance standards. Governor Hochul recently signed Senate Bill S5294A into law, requiring hospitals and nursing homes to implement comprehensive workplace violence prevention plans (WPVPP).

Workplace Violence Prevention Plan Requirements

The new law applies to general hospitals and nursing homes regulated under New York’s Public Health Law.  Employers must implement written WPVPPs. Hospitals and nursing homes must integrate WPVPPs into existing safety and accreditation frameworks. The WPVPP must include an initial and then a yearly hazard assessment to identify workplace violence threats and hazards.  The assessment requirement is a performance standard, meaning that employers will need to employ qualified persons to conduct comprehensive workplace violence hazards assessments (though the annual reassessment could be more circumscribed). The employer then must then use their expertise with their facilities and industry knowledge to customize and update the WPVPP, as well as implement enhanced safety controls to address the hazards observed.  The assessment should inform the employer of appropriate security measures and engineering controls required by the Act (e.g., barriers, alarms, communication systems). 

The WPVPP must include employee training to identify, prevent, and mitigate workplace violence. This will include de-escalation training for disruptive patients and visitors. Emergency rooms are required to have security personnel onsite, with specific requirements for off-duty law enforcement or specially trained security staff.  Smaller hospitals face less stringent security staffing standards, with exemptions for rural and critical access hospitals.

The law finally requires employers to maintain incident logs and share data with safety committees and employee representatives. 

Employer Action Plan

The law takes effect 280 days after enactment, giving facilities less than a year to establish programs. Likely reflecting the political impetus for this statute, the law mandates robust employee participation in the WPVPP: union representatives must be included in its development and implementation.  Compliance, including the detailed hazard assessments, will require significant resources.  Facilities may need to budget for enhanced security personnel, training, and infrastructure improvements.

Takeaway

This legislation underscores New York’s growing focus on workplace violence prevention expanding into healthcare. Hospitals and nursing homes should act quickly to align policies, staffing, and training with the new mandates.

Seyfarth Synopsis: In MFA Enterprises, Inc. v. OSHRC, No. 24-3107 (8th Cir. 2025), the Eighth Circuit Court of Appeals vacated OSHA citations related to hazards faced by employees working on top of rail cars, finding these hazards outside of OSHA’s statutory jurisdiction.

The Federal Railroad Administration (“FRA”) and federal Occupational Safety and Health Administration (“OSHA”) traditionally split jurisdiction over working conditions on rail equipment. Pursuant to a 1978 Policy Statement, OSHA confusingly exercised jurisdiction over conditions “not rooted in railroad operations.” In effect, this meant that OSHA enforced safety standards for rail operations at worksites otherwise owned and managed by General Industry employers, while the FRA inspected and enforced its regulations on railroad worksites, such as property and easements owned by rail companies.

As a result, OSHA has issued fall protection violations for employees working at heights above four feet on rail cars under its walking working surfaces standard, and has enforced citations relating to rail movements (e.g., “fouling” the tracks) under the OSH Act’s General Duty Clause.

Now, a federal court has turned OSHA’s approach on its head, finding that OSHA lacks statutory jurisdiction to regulate and enforce fall hazards atop rail cars, regardless of where the rail cars are staged. The U.S. Court of Appeals for the Eighth Circuit recently vacated an OSHA citation against MFA Enterprises, Inc. (“MFA”) for failing to ensure employees wore fall protection while working atop railcars. The court held that the Federal Railroad Act preempts OSHA’s jurisdiction over working conditions on railcars, reversing a prior decision that imposed a $122,878 penalty including willful violations.

Key Employer Takeaways and Recommendations

The Eighth Circuit oversees federal courts in seven central states: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. The Court’s opinion is not binding over courts in other states, but it is unambiguous and likely to be persuasive in other jurisdictions – both state and federal. Therefore, employers who receive OSHA citations related to work on top of rail cars should raise jurisdiction and preemption as defenses. Other citations relating to rail cars, rail car movement, and work around railroad properties should be similarly defensible. Jurisdiction can be raised at any time, and jurisdictional and preemption defenses can be raised for citations already under contest.

While OSHA’s jurisdiction was preempted, FRA rules still prescribe measures to protect employees, and employers still face the risk of FRA enforcement for rail accidents. The FRA’s railway safety regulations outline minimum federal safety standards for railroad inspection, maintenance, and construction activities, though the FRA’s fall protection requirements notably only apply to railway bridge workers. These standards aim to prevent accidents and casualties during rail operations.

Like OSHA violations, employers should note that FRA violations carry significant consequences, including civil penalties. 

Why Employers Should Still Act

Legal preemption does not eliminate the existence of hazard or the legal risk for unsafe work conditions. Falls from railcars or elevated surfaces can cause severe injuries or fatalities—risks that increase during winter when surfaces are icy and visibility is reduced.

Best Practices for Employers:

  • Maintain and enforce OSHA-compliant and FRA-compliant fall protection systems wherever feasible.
  • Conduct hazard assessments for tasks involving elevated work.
  • Provide regular training emphasizing FRA requirements and safe work practices.
  • Monitor winter conditions and implement additional precautions, such as de-icing and slip-resistant footwear.
  • Continue to report and/or record injuries relating to work on a rail car. We recommend that employers record and report rail-related incidents. However, we recommend framing any railcar incident as one outside of OSHA’s jurisdiction during the report. While the FRA has its own reporting obligation, it only applies to railroad employees.
  • Initiate and enforce employee compliance through periodic supervisor walkarounds of the rail yard during each shift to observe whether employees are utilizing the employer’s fall protection devices and practices.
  • When the supervisor observes instances of non-compliance during the walkarounds, take immediate action to correct the employee’s behavior through counseling or other forms of appropriate disciplinary action, with documentation of such action where necessary.

Proactive compliance with OSHA standards, FRA regulations, and American Associate of Railroads (AAR) industry standards not only avoid penalties, but also protects workers and demonstrates a strong safety culture.

Employers should assert appropriate defenses to OSHA inspections and citations.  The jurisdictional argument raised by MFA and blessed by the Eight Circuit likely can be raised in other cases where non-OSHA federal agencies could take jurisdiction over occupational safety, including rail cars, locomotives, yard dogs, over-the-road tractors and trailers, boats, and barges.

For more information, contact your Seyfarth attorney.

Employers with sophisticated safety programs implement overarching Safety and Health Management Systems (“SHMS”, also called Injury and Illness Prevention Plans and Accident Prevention Plans) to ensure that they properly assess hazards, select appropriate safety controls, evaluate safety performance, and engage employees. Federal OSHA recommends an SHMS and routinely demands the development of an SHMS to settle OSHA cases involving serious litigation. According to a 2012 federal OSHA white paper, 34 states require or encourage SHMSs, and some high-profile state plans have detailed requirements (e.g., CA, WA).

A critical component of a safety program is employee participation in hazard identification, training, compliance with safety rules, and enforcement. Employers increasingly recognize that the most sophisticated programs can falter when workers do not feel safe to speak. The strength of a safety program depends not only on written procedures, training, and audits—but also on an underlying culture where employees can raise concerns, report hazards, and suggest improvements without fear of embarrassment or reprisal. Psychological safety can help maximize the effectiveness of safety programs and minimize OSHA liabilities.

1. What is Psychological Safety?

This climate of openness, acceptance, and encouragement creates an environment where employees feel they will not be punished or humiliated for speaking up with safety ideas, questions, concerns, or mistakes—this is known as psychological safety. While the term that has gained traction in management research and organizational development but is equally relevant to occupational safety and health (OSH). OSHA standards require employee involvement in hazard identification, safety committees, and incident investigations, those mechanisms depend on employees’ willingness to engage. When workers hesitate to speak, participation erodes, and even well-designed systems fail to detect risks early. Further, the safety controls further down the NIOSH pyramid—administrative controls and personal protective equipment (PPE)—require employees to follow the rules or wear the PPE.

2. The Link Between Psychological Safety and Occupational Safety 

NIOSH’s Total Worker Health® framework recognizes that worker well-being is an integrated concept. Mental and social conditions in the workplace can directly influence the physical environment. If employees fear that reporting an unsafe condition will lead to blame or retaliation, that silence may enable an injury that was preventable.

In psychologically unsafe cultures, hazard reporting rates drop, near-miss reporting evaporates, and minor incidents go unexamined. Supervisors may interpret this quiet as compliance, when in fact it signals disengagement. By contrast, psychologically safe teams tend to identify hazards earlier, communicate concerns clearly, and cooperate in corrective action—hallmarks of a mature SHMS.

3. Employee Involvement as a Core System Element

OSHA’s Recommended Practices for Safety and Health Programs (2016) outline seven core elements of an effective SHMS, one of which is Worker Participation. The guidance notes that workers “often know the most about potential hazards” and that their involvement is essential in “developing, implementing, evaluating, and improving the program.”

However, participation cannot be compelled—it must be invited and sustained by trust. A worker who doubts management’s response, fears discipline or feels that their input will be ignored is unlikely to report unsafe conditions or volunteer solutions. In this respect, psychological safety is not a soft concept—it is the enabling condition for compliance-driven participation.

4. Leadership Behaviors That Reinforce Psychological Safety

Employers can foster this environment through deliberate management practices:

  • Model openness and humility. Supervisors who acknowledge uncertainty or mistakes signal that imperfection is acceptable, reducing the fear of speaking up.
  • Respond constructively to reports. When an employee raises a safety issue, the first response should be gratitude and follow-up, not defensiveness.
  • Integrate participation into recognition systems. Acknowledge employees who contribute to hazard identification, root cause analysis, or process improvement.
  • Protect against retaliation. Reinforce anti-retaliation policies and ensure consistent handling of reports to maintain credibility.
  • Train leaders in listening. Supervisors should learn to distinguish between complaints and contributions—both often sound alike in the early stages of a problem.

These behaviors not only improve morale but also fulfill the employer’s General Duty Clause obligation to provide a safe and healthful workplace by removing organizational barriers to hazard reporting.

5. Psychological Safety as a Leading Indicator

Traditional safety metrics focus on lagging indicators—injury rates, citations, workers’ compensation costs. But modern safety management emphasizes leading indicators that reveal whether systems are functioning proactively. Levels of employee voice, survey measures of trust, and frequency of near-miss reporting are all valuable leading indicators that correlate with psychological safety.

Employers who measure and manage these cultural factors gain early visibility into risk trends that might otherwise appear only after an incident. In this sense, psychological safety is not a “wellness” issue—it is a measurable risk management variable.

6. Building the Business Case

From an employer’s perspective, investing in psychological safety is not merely about compliance or compassion. It yields operational and legal benefits:

  • Reduced incident rates and lower workers’ compensation costs through earlier hazard identification.
  • Improved regulatory posture, as OSHA increasingly examines organizational factors during incident investigations.
  • Enhanced retention and recruitment, particularly among younger workers who value open, participatory cultures.
  • Better crisis response, since teams accustomed to honest dialogue can adapt faster during emergencies.

In short, psychological safety enhances every element of a safety and health management system—policy development, hazard analysis, corrective action, and performance evaluation—by ensuring that employee involvement is genuine rather than procedural.

7. Overcoming Employee Skepticism

As is the case in many workplaces, employees are skeptical of employer policies that announce that there is an “open door” policy for employees to voice concerns regarding workplace issues, including reporting workplace hazards which could be:

(1) physical hazards (e.g., the equipment itself or presence of toxic materials)

(2) workplace policies (e.g., employer workplace practices, such as productivity goals, exposure to repetitive tasks that might cause muscular injuries), or

(3) management practices (e.g., means of employee training, supervision of necessary work that exposes employees to hazards or silence by management regarding employee complaints).

When the employer’s workplace environment exhibits any of factors (1) – (3) employees may feel that they have no recourse at work to address them so they file anonymous complaints that can result in OSHA inspections. While employees have the right to file these complaints, resorting to OSHA and inspections can often be a cumbersome and inefficient manner to address factors (1) – (3), it is much less likely if employees genuinely feel that they are protected against retaliation and could timely address them with management.

In addition, if employees are encouraged to report hazards to the employer without fear of real or perceived retaliation, the employer can avoid having to respond to OSHA whistleblower retaliation liability under Section 11(c) of the Act. Such complaints can have a negative impact on the employer/employee relationship and can also create disruption and, in some cases, significant monetary expense to the employer to defend.

8. The Path Forward

Employers committed to continuous improvement should assess their current culture with the same rigor applied to other safety audits. Anonymous employee surveys, focus groups, and structured interviews can reveal whether workers feel comfortable raising safety concerns. Corrective actions may include leadership coaching, revising reporting procedures, or integrating safety feedback into performance evaluations.

The employer should consider tangible objective means and methods to encourage employee participation including:

  • financial incentives such as nominal monetary payments or gift cards to employees who report workplace hazards, submit recommendations to reduce or eliminate hazards or to improve safety and health policies
  • physical awards, such as articles of clothing, perhaps with company logos, that employees can use offsite
  • award ceremonies where employees are recognized for participating on a safety committee, conducting workplace inspections, submitting recommendations

The ultimate goal is a workplace where every employee, from the newest hire to the most seasoned manager, believes that raising a concern is not only safe but expected. When that belief takes hold, the organization’s safety and health management system becomes fully functional—because it is fully human.

9. Minimizing OSHA Liabilities

The most effective strategy to reduce workplace liabilities from occupational safety and health is to focus on key hazards and minimize the occurrence of accidents. Psychological safety, integrated into a mature safety culture and effective safety and health management system, can help eliminate mistake and injuries. OSHA agencies look favorably at a sophisticated employer who is focused on these issues. This program could help aid the employer in typical OSHA defenses, including lack of employer knowledge and employee misconduct. Further, addressing safety issues through programs can be a defense to allegations of willful violations.