By A. Scott Hecker, Benjamin D. Briggs, Adam R. Young, Patrick Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On May 25, 2022, Douglas Parker, Assistant Secretary for the U.S. Department of Labor’s Occupational Safety and Health Administration, testified before the U.S. House Committee on Education and Labor’s Workforce Protections Subcommittee regarding his vision for the Agency and the status of its operations.

Assistant Secretary Parker’s written statement, submitted to the Workforce Protections Subcommittee ahead of his live testimony, asserted that “COVID-19 has been the occupational health issue of our time,” and noted a number of irons OSHA has in the COVID fire, including “working to finalize a permanent COVID-19 standard to ensure health care workers are protected as long as COVID-19 is a threat.”  Even absent a permanent standard, Assistant Secretary Parker trumpeted OSHA’s “1,826 COVID-19 related inspections in health care facilities, with an additional 701 inspections conducted by State Plans,” and cited OSHA’s March launch of “a COVID-19 enforcement initiative focusing on evaluating and ensuring the readiness of hospitals and skilled nursing care facilities to protect workers in the event of surges in COVID-19 patients.”  Employers should stay wary, as OSHA continues to pursue COVID-related enforcement.  See our previous blog, COVID-19 “Endemic” is Not Over: OSHA is Opening New COVID-19 Programmed Inspections, for more on OSHA’s efforts.

During his hearing testimony, Assistant Secretary Parker identified developing an infectious disease standard for high-risk workplaces as a priority, suggesting that had one been in place prior to the pandemic, “OSHA would have been in a better position to address COVID.”  Assistant Secretary Parker, formerly the head of Cal/OSHA, highlighted that State’s regulation addressing Aerosol Transmissible Diseases as resource that helped California implement its pandemic response.  Acknowledging the standard is not perfect, he nonetheless argued that “it certainly put California in a better position to be able to enforce basic infectious disease controls because of the existence of the standard.”  While the Obama Administration proposed an infectious disease standard in 2010, the rulemaking lay fallow throughout President Trump’s term as Commander in Chief.

Speaking of fallow rules, employers may be happy to hear that OSHA is not planning to propose a permanent COVID-19 vaccinate or test regulation similar to the emergency temporary standard stayed by the U.S. Supreme Court on January 13, 2022.

Beyond COVID and other infectious diseases, OSHA anticipates rules concerning, among other issues: workplace violence in health care, heat hazards, and recordkeeping.  We blogged about Vice President Kamala Harris’s April announcement of OSHA’s National Emphasis Program concerning indoor and outdoor heat illness.  OSHA’s rulemakings trundle on in various stages, and some may not see the light of day for years, if ever, but employers should stay aware of where these regulatory processes stand to remain cognizant of potentially-shifting obligations.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

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

Seyfarth Synopsis: Federal OSHA is rolling out an aggressive COVID-19 enforcement program to inspect “high hazard” employers, as well as re-inspect those healthcare employers who have received COVID-19 complaints in the past. 

In March 2022 at the ABA OSHA conference, OSHA enforcement leadership publicly declared the “COVID-19 endemic” to be federal OSHA’s #1 enforcement priority for 2022. We have documented the agency’s continued mission creep to target hospitals and protect healthcare employees during the COVID-19 pandemic. Of course, OSHA cannot lawfully merely select hospitals and open inspections to ensure COVID-19 compliance. The Agency must have a complaint, injury/illness report, or other “neutral” basis upon which to inspect a facility.

OSHA has been rolling out inspections under its National Emphasis Program (NEP) for COVID-19 since July 2021. These inspections target certain “high hazard” industries, including health care, nursing care, manufacturing, warehousing, and meat processing. Each OSHA area office has allegedly dedicated at least 15% of its enforcement resources to programmed COVID-19 inspections. Based on the figures we are hearing at the Area Office level and our clients’ open inspections, we estimate that hundreds of these inspections are being performed by OSHA across the country, on top of the many COVID-19 inspections performed in OSHA state plan states.

On March 2, 2022, OSHA issued a COVID-19 Focused Inspection Initiative in Healthcare to supplement its COVID-19 NEP inspections. The memorandum provides instructions to Federal OSHA Area Offices for a focused, short-term inspection initiative directed at hospitals and skilled nursing care facilities that treat COVID-19 patients. OSHA’s stated goal in the Initiative is to mitigate the spread of COVID-19 and future variants, and ensure the health and safety of healthcare workers at heightened risk for contracting the virus. Through the Initiative, OSHA plans to assess employer compliance efforts, including the readiness of hospitals and skilled nursing care employers to address any ongoing or future COVID-19 surges.

For this initiative, federal OSHA assembled a list of every healthcare and nursing establishment that has received a complaint letter since March 2020. OSHA then has been using an algorithm to randomly select employers from this list.  Employers have been surprised to have OSHA CSHOs opening inspections and explaining that the inspections are occurring based on allegations closed out more than two years ago! Employers should be aware that these inspections may be opened under the OSHA COVID-19 NEP and Focused Inspection Initiative, and they may need to take action to consult with counsel to ensure that the inspection is proceeding lawfully.

Employers always have the option of requiring OSHA to seek a search warrant and then enforce the warrant in federal court. In a warrant action, Tenet Healthcare challenged the enforceability of the COVID-19 NEP in federal court in Lubbock.  The Court did not grant a Temporary Restraining Order against the OSHA inspection and Tenet later withdrew its complaint. Accordingly, the limited case law demonstrates the challenges with an aggressive litigation strategy.

Employers, particularly in health care, should prepare for ongoing OSHA inspections relating to COVID-19. For employers preparing to defend OSHA inspections, we recommend reviewing compliance with record-keeping obligations, including OSHA Form 300 logs and COVID-19 logs where applicable.  If OSHA does come onsite, a designated point person should be professional when OSHA arrives, sit the OSHA compliance officer down in a conference room, and learn the scope of the inspection. Employers should confirm that OSHA has a lawful, neutral basis for the inspection, and consult with outside counsel to ensure the employer’s company is protected. OSHA inspection management is about focus and control, and keeping the inspection limited in scope. Consult qualified outside counsel if there are any questions relating to the OSHA inspection.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

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

Seyfarth Synopsis: A manufacturer was issued a “willful citation” for failure to correct a machine guarding deficiency identified in a previous audit.

After the amputation, OSHA conducted an injury investigation into the Pennsylvania company’s industrial facility. OSHA uncovered that the Company had previously identified a machine guarding deficiency, but kept the machine operational and did not repair the deficiency prior to the amputation incident.

According to its press releases, OSHA determined that the “injured worker’s left hand and arm were caught and pulled into the rotating drums of the machine while loading brick pieces into it. OSHA found the company failed to provide guarding to prevent employees from having any part of their body in the danger zone during operation.” Additionally, OSHA found, the hazard was identified during previous periodic inspections of the machine by the employer, but repairs were never made.

The company was cited for 11 safety violations – including one willful and eight serious – following an investigation. OSHA proposed $108,769 in penalties for the violations.

As a reminder to employers, this case provides three lessons to employers —

  1. Take prompt action to address safety and health issues identified during internal audits and inspections.
  2. Consider conducting safety audits and inspections under attorney client privilege to protect audits from production to OSHA in a subsequent inspection.
  3. OSHA issued an accusatory and damaging press release, Be ready to respond to OSHA’s press releases with your own, to strategically rebut unfounded allegations. Please see our article on responding to OSHA press releases.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Rebecca A. Davis, Patrick D. Joyce, Scott T. Fenton, Jose Almanzar, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: United States Environmental Protection Agency (USEPA) Administrator Michael S. Regan and Attorney General Merrick B. Garland announced the Department of Justice’s (DOJ) comprehensive enforcement strategy to advance environmental justice. USEPA and DOJ believe they have developed a strategy that positions the Biden Administration to leverage all available legal tools to secure protections for communities that have been negatively affected by pollution and environmental injustices. The Administration is restoring Supplemental Environmental Projects (SEPs), which EPA’s enforcement program previously used to provide environmental and/or public health benefits to communities harmed by environmental violations. 

The new enforcement strategy arises out of President Biden’s “Executive Order on Tackling the Climate Crisis at Home and Abroad,” which sets out the Administration’s priorities regarding securing environmental justice and spurring economic opportunity. The Executive Order also creates a “White House Environmental Justice Interagency Council” that is tasked with developing a “strategy to address current and historic environmental injustice by consulting with” the “White House Environmental Justice Advisory Council,” which was created through the same Executive Order, and with local environmental justice leaders.” Development of a comprehensive environmental justice enforcement strategy is another priority set out in the Executive Order.

USEPA and the DOJ engaged in listening sessions with impacted communities and other stakeholders to develop the strategy. In the past, SEPs were used in USEPA settlements to support projects that designed to bring benefits to environmental justice communities, including:

(i) projects to abate lead paint hazards in housing or provide blood lead level analyzers to community health clinics;

(ii) installation of enhanced air filtration systems at schools in heavily industrialized areas;

(iii) projects to enhance the emergency response capabilities of local fire departments or hazardous emergency response teams, and

(iv) installation and operation of a fence line monitoring system.

SEPs are considered in accordance with USEPA’s SEP Policy, which ensures there is a sufficient connection between the SEP and the actual or alleged violation. The SEP Policy allows USEPA to provide monetary penalty relief, just as USEPA has discretion to consider a defendant’s good faith and cooperation when deciding on a penalty and other terms of a settlement.

USEPA and the DOJ will use SEPs as a case settlement tool at the discretion of the Attorney General and subject to guidelines and limitations set forth in a memorandum released earlier this week. The Attorney General notes in the memorandum that, when used appropriately, SEPs “allow the government to more fully compensate victims, remedy harm, and punish and deter future violations,” particularly in cases involving harms to communities affected by environmental crimes. The DOJ’s Environment and Natural Resources Division (ENRD) is being asked by the Attorney General to employ the following non-exhaustive list of guidelines and limitations for settlement agreements involving SEPs :

  • Settlement agreements must define – with particularity – the nature and scope of the projects that a defendant has agreed to fund;
  • Any SEPs must have a “strong connection” to the federal law violation at issue, the project(s) “must be consistent with the underlying statute being enforced” and should “advance at least one of the objectives of that statute”;
  • To the extent feasible, the SEP “should be designed to reduce the detrimental effects of the underlying violation” and discourage recidivism;
  • The DOJ or its client federal agencies will not provide recommendations for third-party non-governmental organizations to receive payments to implement any particular project and will not propose specific entities to be beneficiaries of any such project. However, the DOJ and its client agencies can specify the “type of entity” to benefit from a SEP; and
  • Settlements involving SEPs cannot provide the DOJ or any federal agency with additional resources to perform activities for which appropriations have been made.

The DOJ also announced the creation of the first-ever Office of Environmental Justice within ENRD, which will be used to implement the new comprehensive enforcement strategy.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.

By David Malter, CIH, CSP, CPEA, ROH (Guest Author), Adam R. Young, Mark A. Lies, and Craig B. Simonsen

Seyfarth Synopsis: In a new journal article from the Centers for Disease Control and Prevention’s (CDC), National Institute for Occupational Safety and Health (NIOSH), and the Bacterial Special Pathogens Branch, researchers have identified specific cases of  a deadly occupational disease, welder’s anthrax.

According to CDC, welder’s anthrax is a bacterial infection that results in severe pneumonia.  The disease was caused by bacteria within the B. cereus group that produces anthrax toxin; these bacteria thrive in lungs affected by welding fumes and iron deposits.  The disease has been identified in welders and metalworkers, all of whom were men with a median age of 39 years. The majority of cases have been identified in southern states.  As a percentage of welders, the number of identified cases is still rare.

The CDC suggests, as with all other safety and health hazards, employers should use the standard hierarchy of controls to prevent workplace exposure to welding fumes and gases and soils that may be contaminated with B. cereus group bacteria producing anthrax toxins.  This would include elimination of exposure to welding fumes where possible, then employing respiratory protection for employees welding.

Federal OSHA does not have an enforcement position yet requiring N95 or better masks for all employees performing welding tasks.  However, with this new study, we may see OSHA define all iron welding to create a hazardous atmosphere, for which employees performing welding or working the vicinity would be required to both wear N95 or better masks and be part of a respiratory protection program, which would include medical evaluations, fit tests, PPE training.  Seyfarth attorneys will be tracking OSHA publications to learn if the enforcement position changes.

Image from CDC.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Ilana Morady, Patrick D. Joyce, and Coby Turner

Seyfarth Synopsis: On April 21, 2022, the Cal/OSHA Standards Board (“Board”) voted 6-1 to approve a third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”). The revised ETS will likely go into effect the first week of May and will expire on December 31, 2022.

Background

As we previously blogged, the first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption, which is currently in effect is set to expire on May 6, 2022. Normally, an emergency regulation can only be readopted twice, but by Executive Order, a third readoption of the COVID-19 ETS is permitted so long as it does not extend beyond December 31, 2022.

Now that the Board has voted to approve the third readoption, which is substantively identical to the proposed rule Cal/OSHA published several weeks ago, the revised ETS will go into effect once the Office of Administrative Law completes its review and files with the Secretary of State, likely by the first week in May.

Highlights of the Revised ETS

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and remove some requirements. Cal/OSHA has said that updated guidance in the form of FAQs is forthcoming. In the meantime, highlights of the revised ETS include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employee recently recovered from COVID-19 (see below).
    • Providing Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees (regardless of vaccination status) are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required, but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts(note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

Workplace Solutions

Stay tuned for updated guidance and developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

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

Seyfarth Synopsis: OSHA has developed a new Regional Emphasis Program (REP) to identify and reduce hazards in the cut stone and stone products industry, which OSHA alleges to have the highest documented overexposures to respirable crystalline silica in the Denver region over the past 10 years.

Crystalline silica is a common mineral found in sand, concrete, natural stone, artificial stone, mortar and other materials, and generates respirable dust – dust that can be inhaled – during cutting, grinding and polishing. Exposures to crystalline silica are common in both construction and general industry, and OSHA has been targeting silica enforcement in the Biden administration. OSHA has a respirable crystalline silica standard for construction (29 CFR 1926.1153) and general industry (29 CFR 1910.1053).

In the past decade, OSHA found 30 percent of the documented overexposures to crystalline silica in Region 8 (CO, MT, ND, SD, UT, WY) occurred in the cut stone and stone products industry.  OSHA Regional Administrator Jennifer Rous said “this Regional Emphasis Program on silica addresses serious health and safety hazards and enhances our focus on ensuring that industry employers comply with OSHA requirements,” and that “inhaling elevated levels of respirable crystalline silica without proper protection increases the risk of contracting multiple diseases, including silicosis, an incurable lung disease that can lead to disabling or fatal injuries.”

Focused on getting industry employers to follow required safety standards and alert workers to silica hazards, OSHA’s emphasis program also addresses struck-by and crushing hazards for handling of granite, marble, limestone, slate and other stone slabs.

We have blogged previously on this topic. See for instance OSHA Issues FAQs for General Industry for Crystalline Silica Standard, OSHA Enforcement Memo for Crystalline Silica Standard in General Industry and Maritime, OSHA Publishes Crystalline Silica Standards Rule Fact Sheets for Construction, Circuit Court Finds OSHA Failed to Adequately Explain the Crystalline Silica Standards Rule, and OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards.

Enforcement will begin on May 17, 2022.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

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

Seyfarth Synopsis: On April 20, 2022, the U.S. Department of Labor (DOL) announced a proposal to reconsider or revoke Arizona’s State OSHA plan, which may lead to federal OSHA takeover regulation of private employers in the state. 87 FR 23783 (4/21/22).

23 states operate OSHA state plan agencies that regulate private employers. Under the OSH Act, those state plans must adopt and enforce standards that are at least as strict as the federal standards. The federal government maintains oversight over those states.

Where OSHA determines that a state plan is failing to issue regulations and pursue enforcement at a level that is at least as effective as federal OSHA’s, the agency may initiate proceedings to revoke final approval, and reinstate federal concurrent authority over occupational safety and health issues covered by the state plan. With regard to the Arizona state plan, DOL’s new press release explains:

OSHA has grown increasingly concerned that actions by the Arizona State OSHA Plan suggest the state is either unable or unwilling to maintain its commitment to provide a program for worker safety and health protection as the OSH Act requires. OSHA indicate that Arizona has failed to adopt adequate maximum penalty levels, occupational safety and health standards, National Emphasis Programs and – most recently – the COVID-19 Healthcare Emergency Temporary Standard.

The agency asserts that Arizona has engaged in a “nearly a decade-long pattern of failures to adopt and enforce standards and enforcement policies at least as effective as” federal OSHA’s.  The last straw may have been Arizona’s lack of response to OSHA’s October 19, 2021 “courtesy letter” concerning the State’s failure to adopt OSHA’s COVID-19 healthcare emergency temporary standard (ETS) within 30 days of its June 21, 2021 publication in the Federal Register. South Carolina and Utah also received such letters, but those States subsequently issued ETSs  Arizona did not.

OSHA’s proposal on Arizona decertification is available for public inspection in the Federal Register and will be published on April 21, 2022; publication starts the revocation process. The public can comment on the proposal until May 26, 2022, and an online hearing may be held on August 16, 2022. After considering comments, testimony, and other evidence, OSHA will announce its reconsideration and revocation decision on the final approval of Arizona’s State plan through another Federal Register notice.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By: Adam R. Young, Patrick D. Joyce, James L. Curtis, Mark A. Lies, II, and Craig B. Simonsen

Seyfarth Synopsis: The federal Occupational Safety and Health Administration has launched a National Emphasis Program to protect “millions of workers from heat illness and injuries. Through the program, OSHA will conduct heat-related workplace inspections before workers suffer completely preventable injuries, illnesses or, even worse, fatalities.”

Heat illness at the workplace has been growing as a target issue for federal OSHA for several years. Under the Biden Administration, a shift in federal OSHA’s focus to vulnerable worker populations and the effects of climate change has further highlighted occupational heat illness as a primary enforcement focus. As we previously blogged, the Agency is developing a heat illness standard applicable to General Industry and Construction, which the Agency anticipates will take months, if not years, to finalize. In the interim, OSHA continues to aggressively enforce indoor and outdoor heat illness hazards through the OSH Act’s General Duty Clause. On April 8, 2022 OSHA released a National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, which provides the Agency’s policies and procedures with respect to targeted enforcement of heat hazards.

On April 12, 2022, Secretary Marty Walsh joined Vice President Kamala Harris in Philadelphia to announce a new enforcement program related to indoor and outdoor heat illness which, according to OSHA, affects thousands of indoor and outdoor workers each year. According to Walsh, reducing workplace heat-related illnesses and injuries is a “top priority for the Department of Labor, and this National Emphasis Program is a way to immediately improve enforcement and compliance efforts, while continuing long-term work to establish a heat illness prevention rule.”

Heat stress occurs when the human body is no longer able to control its internal temperature. Heat stress may lead to heat exhaustion and heat stroke. Symptoms of heat exhaustion include dizziness, headache, rapid pulse, nausea, and vomiting. The symptoms of heat stroke include high body temperature, confusion, and convulsions. Heat stroke can be fatal.

Heat stress may be avoided when working in a hot environment by drinking cool water frequently (whether thirsty or not), resting in the shade when cool down is needed, and by wearing a hat and light-colored clothing.

The National Emphasis Program (NEP) targets employers in certain “high hazard” heat illness industries based on NAICS code, including many outdoor services industries, indoor manufacturing environments, warehousing, and nursing care facilities. Using the enforcement guidance provided in the NEP, OSHA compliance officers will be expected to review certain key facets of an employer’s heat illness program to determine whether there may be a violation of OSHA’s General Duty Clause —

  • Is there a written program?
  • How did the employer monitor ambient temperature(s) and levels of work exertion at the worksite?
  • Was there unlimited cool water that was easily accessible to the employees?
  • Did the employer require additional breaks for hydration?
  • Were there scheduled rest breaks?
  • Was there access to a shaded area?
  • Did the employer provide time for acclimatization of new and returning workers?
  • Was a “buddy” system in place on hot days?
  • Were administrative controls used (earlier start times, and employee/job rotation) to limit heat exposures?
  • Did the employer provide training on heat illness signs in a language they understand, how to report signs and symptoms, first aid, how to contact emergency personnel, prevention, and the importance of hydration?

Employers would be wise to review this list, analyze their jobs for outdoor and indoor heat illness hazards, and develop a program to protect employees and address heat hazards.

The NEP also instructs compliance officers to interview workers on-site for subjective symptoms of heat illness such as headache, dizziness, fainting, or dehydration and to conduct personal observations looking for signs of heat illness at the jobsite. The NEP instructs compliance officers to conduct subjective observations of an employee’s “workload,” which, combined with the NEP’s heat index “trigger” of 80ºF, provides information as to the likelihood of employee exposure to the “hazard” of high ambient heat.

The NEP still leaves many unanswered questions as to what enforcement position OSHA will take when evaluating employer heat illness programs:

  • How should employers analyze and quantify different heat hazards posed by exposure to sunlight (solar radiation) and hard physical labor (metabolic heat)?
  • What is the proper schedule for rest breaks and how is that affected by work being outdoors or indoors?
  • What is the proper acclimatization schedule and how is OSHA/NIOSH’s proposed acclimatization affected by non-standard shift schedules (i.e., on for 10 days, off for 10 days), worker vacations, or even long holiday weekends?
  • Is access to cool water sufficient or will OSHA expect employers to provide access to electrolyte replacement beverages, tablets, or powders?
  • Will OSHA expect employers to provide employees with access to air conditioned or artificially cooled buildings or vehicles?
  • How should employers address hazards faced by high risk employees, given the medical inquiries that are prohibited by the Americans with Disabilities Act (ADA)?
  • What training will be provided to compliance officers to be able to determine the proper “workload” for each particular employee and job task?
  • On a multi-employer worksite, is the controlling employer required to confirm that its subcontractors have a heat illness prevention plan or that temporary workers have received the heat illness training from their staffing company? If so, what level of confirmation or follow up is necessary?

Several states have regulations or proposed regulations relating to heat illness or workplace temperature: California, Colorado, Maryland, Minnesota, Nevada, Oregon, and Washington. In Oregon, the Agency recently adopted Proposed Rules to Address Employee and Labor Housing Occupant Exposure to High Ambient Temperatures and Proposed Rules to Address Employee Exposure to Wildfire Smoke.

At federal OSHA there is also a Heat Illness Prevention campaign, launched in 2011, which educates employers and workers on the dangers of working in the heat. Through training sessions, outreach events, informational sessions, publications, social media messaging and media appearances, workers and employers learn how to protect workers from heat. Its safety message comes down to three key words: Water. Rest. Shade.

We have previously blogged on heat stress in the workplace. See OSHA Begins the Process to Issue Heat Illness Standard for Indoor and Outdoor Workplaces, “Water. Rest. Shade.” OSHA Campaign to Prevent Heat Illness in Outdoor Workers, Cool For the Summer, Avoid the Summer Heat! Sweat the Details of California’s “Cool-Down” Periods and Avoid the Burn of Wage and Hour Class Litigation, and Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, Bradley D. Doucette, Bailey G. Green, and Craig B. Simonsen

Seyfarth Synopsis: According to the Centers for Disease Control and Prevention (CDC), drowsy driving is not just a major problem in the United States, it is a public health crisis. “Drowsy driving is the dangerous combination of driving and sleepiness or fatigue. This usually happens when a driver has not slept enough, but it can also happen because of untreated sleep disorders, medications, drinking alcohol, or shift work.”

As the country re-enters the workplace and re-incorporates a daily commute into its routine, and for workers who travel long distances as part of their employment, it is important to revisit the topic of sleep and occupational safety.

The Dangers of Drowsy Driving

The National Safety Council (NSC) notes that about 1 in 25 adult drivers report having fallen asleep while driving in the previous 30 days, and many more admit to driving when they were sleep-deprived. What drivers may not realize is how much drowsy driving puts themselves – and others – at risk. In fact, in recent years an estimated 6,400 people died annually in crashes involving drowsy driving, according to the National Sleep Foundation. The National Highway Traffic Safety Administration (NHTSA) estimates that drowsy-driving crashes approach nearly 100,000 each year per its most recent census.

Work needs and requirements may cause us to override those natural sleep patterns, often resulting in dramatic consequences on safety and productivity. The following list by the NSC illustrates a few facts for employers:

  • Safety performance decreases as employees become tired
  • Over 60% of night shift workers complain about sleep loss
  • Fatigued worker productivity costs employers $1,200 to $3,100 per employee annually
  • Employees on rotating shifts are particularly vulnerable because they cannot adapt their “body clocks” to an alternative sleep pattern

The NSC, NHTSA, and other traffic safety agencies such as the California Office of Traffic Safety (OTS) find that the drivers most at risk are commercial drivers (such as long-haul drivers, tow truck drivers, and bus drivers), graveyard shift workers, and employees on rotating or long shifts as well as drivers under the age of 25. In fact, studies show that driving drowsy is similar — in terms of slowed response time and judgment errors — to driving intoxicated, with 24 hours without sleep being roughly equivalent to having a blood alcohol content of .10%.

Some agencies have taken steps to limit drowsy driving, as well as the amount of hours employees can work. For example, the Federal Motor Carrier Safety Administration limits property-carrying drivers to a maximum of 11 hours after 10 consecutive hours off duty, and requires at least a 40-minute break every 8 hours. Passenger-carrying drivers have a stricter maximum of 10 hours after 8 consecutive hours of duty. These rules also take into consideration whether there are adverse driving conditions, and whether the driver has a sleeping berth.

Seyfarth has previously blogged on this topic as well. See DOT Publishes Proposed Changes to Hours of Service Regulations for Commercial Motor Vehicle Drivers, National Safety Council Congress Session on Driving Safety – The Missing Link in Your Company Safety and Health Management Systems, Asleep at the Wheel: Trucking Company’s Sleep Apnea Policy and Procedures Reviewed by Federal Courts, and DOT Proposes Rulemaking on “Safety Sensitive Positions” in Highway and Rail Transportation.

Federal OSHA maintains a guidance page relating to worker safety, sleep and fatigue.  While federal OSHA has no regulations relating to sleep deprivation and driving, the  agency enforces its General Duty Clause to maintain a safe workplace, and has issued citations to companies “when they ignored the human factor of employee fatigue from excessive overtime.”

What Employers Can Do

Besides adhering to Federal and state guidelines limiting the hours employees can work, there are a few steps which employers can implement to help curb drowsy driving and ensure employees are rested and driving safe behind the wheel. For workers who must drive as part of their job, OSHA recommends setting up a Safe Driving Program to keep employees safe on the road that includes formulating written policies and procures, driver agreements including seatbelt requirements and regular vehicle maintenance and inspection, and establishing regular driver training and communication. For all drivers, NIOSH recommends using a fatigue risk management system as well as setting policies for maximum numbers of overtime hours and consecutive shifts.

Employer Takeaway

Employee behavior on public roadways can have a big impact in terms of employee safety, public safety, and negative publicity for the employer. Employers should do an analysis of risks of drowsy driving and develop appropriate programs and training to develop a strong safety culture. Doing so will help employees stay awake, alert, and safe on the roads.

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