Introduction

OSHA duty officers around the country routinely field complaints from employees and labor unions alleging workplaces are understaffed and unsafe. Unions often dispute staffing levels, complaining that employers have insufficient bargaining unit members and insufficient members with seniority. Individual complainants allege that they are left to work alone, have no backup in case of emergency, or are at enhanced risk of accident or workplace violence.

OSHA duty officers normally tell complainants that there are no written regulations addressing safe staffing levels, and that it is not unlawful to work alone. But employers would be wise to consider staffing levels to protect employees from recognized hazards. In many situations, appropriate staffing can reduce risks of accidents and slow-developing injuries, and ensure employee safety and emergency response. Accordingly, understanding of issues relating to safe staffing levels can be key to minimizing risks to OSHA citations and other legal liabilities.  

OSHA and Legal Liabilities

Under the OSH Act’s General Duty Clause (section 5(a)(1)), employers must provide a workplace free from any recognized hazard likely to cause death or serious physical harm. For OSHA to cite an employer under the General Duty Clause, the hazard must be recognized by the employer or in the industry. Where insufficient staffing is recognized to expose employees to hazards, employers face liability for Serious or Willful OSHA citations. Recognized hazards principally exist where staffing levels render employees unable to perform critical safety tasks.  Further, injuries to employees resulting from alleged understaffing could result in workers compensation claims. Injuries to non-employee workers could result in tort claims, alleging negligence and a failure to meet the standard of care of a reasonable employer. 

Though there is no criminal liability for a willful violation brought under the General Duty Clause, a willful violation of a specific regulation resulting in a fatality can result in criminal prosecution punishable with six months in federal prison. State governments occasionally also prosecute employers (and managers) for a range of criminal violations relating to deaths in their workplaces.

Emergency Response and PSM Facilities

Complex facilities require minimum staffing levels to ensure appropriate response in the event of natural disasters and major emergencies.  Storms, hurricanes, tornadoes, floods, and earthquakes typically require minimum available staffing to prevent further damage and catastrophes. Implicated OSHA standards include the following:

  1. Under OSHA’s Emergency Action Plan regulations (29 CFR 1910.38(c)), employers are required to have procedures for evacuation and operating critical plant components during an emergency. Employers must have adequate personnel to facilitate an emergency response, as necessary.
  2. Where employers utilize their own team for emergency response, the team must be adequately staffed to perform evacuations, firefighting, or chemical spill responses.
  3. Under the Permit-Required Confined Spaces standard (29 CFR 1910.146), staffing must be adequate for all roles to be present (entrant, attendance, and entry supervisor), and an entry-rescue team (if required).
  4. For facilities governed by the Process Safety Management (PSM) standard (29 CFR 1910.119), the regulations require staffing to perform tasks safely and maintain process safety information, procedures, training, and emergency planning. Insufficient staffing levels can constitute a PSM violation where it creates unsafe conditions that make a chemical release more likely.
  5. After an accident, an employer may need to contact emergency services, immediately investigate the facts of the accident, and provide clear direction to emergency responders to ensure they know where to go and how to protect themselves from any hazards. Insufficient staffing may render the employer unable to provide that assistance.
  6. In addition to staffing levels, employers should take into account the need for adequate supervision for the employees working. Supervision shortages most often occur during off-shifts.

Fatigue, Overwork, and Workplace Violence

Insufficient staffing can result in employees working extended shifts. Overworked employees could lead to wage and hour violations, including under the FLSA and state laws. Extended hours can result in employee fatigue and a declining quality of decision-making that results in greater exposures to hazards.  Employers may also face the following hazards:

  1. Understaffing can contribute to ergonomic hazards, to the extent that employees attempt to lift heavier loads or move heavier equipment that would normally require a team effort.
  2. Employers operating heavy equipment may lack “spotters” and may be unable to complete tasks efficiently or safely.
  3. Lower staffing levels in many environments, such as retail environments and healthcare, can result in increased risks to workplace violence (often addressable with security staffing in particular)
  4. Employers may be choose to address these issues with elimination or engineering strategies, to minimize employee exposure to safety hazards.

Where to Find Staffing Levels

Optimal safe staffing levels and ratios vary significantly based on the industry, the size of a worksite, the complexity of operations, type of equipment, and severity and probability of workplace hazards. Safe staffing levels can be determined in part by a job hazard assessment by a qualified safety professional, in consultation with industry standards and Original Equipment Manufacturer recommendations. Benchmarking is often available from industry organizations and consensus standards. For firefighting, NFPA 1710 staffing standards are generally considered safe and effective, aiming to ensure adequate resources for fire suppression, EMS, and special operations.

Failure to comply with industry consensus standards can create OSHA General Duty Clause liability, as OSHA often relies on industry standards and industry recommendations as bases for an alleged “recognized hazard” in the industry.

Engage Qualified Outside OSHA Counsel

Because of these many legal liabilities, it is essential for employers to engage a qualified attorney experienced in OSHA compliance. If you have an accident or OSHA opens an inspection, experienced OSHA counsel can be integral to defend the employer and conduct proper OSHA inspection management. Improperly managed inspections can result in avoidable civil and criminal liability. Please contact the authors for more information.

About the Authors:

Adam R. Young is partner in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Young focuses his practice in the areas of occupational safety and health, employment law, and associated commercial litigation. Mr. Young can be contacted at ayoung@seyfarth.com (312/460-5538).

Mark A. Lies, II is an attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Lies is a partner who focuses his practice in the areas of products liability, occupational safety and health, workplace violence, construction litigation and related employment litigation. Mr. Lies can be contacted at mlies@seyfarth.com (312/460-5877).

Seyfarth Synopsis: Oregon OSHA institutes program for comprehensive follow-up inspections based on an employer’s violation history, which necessitates employer care during inspections and negotiation of settlements.

Oregon Governor Tina Kotek signed Senate Bill 592 into law in 2023, requiring Oregon OSHA to increase penalties and implement a program for follow-up inspections for significant citations. In response, Oregon OSHA implemented its “Programmed Inspections for Cause” enforcement program designed to prioritize comprehensive inspections against employers with histories of multiple high-classification (Repeat or Willful) citations or citations issued in response to a fatality. 

Comprehensive Follow-up Inspections

A “comprehensive inspection” is a wall-to-wall examination of the worksite to assess compliance with occupational safety and health regulations. Unlike focused inspections, which target specific hazards or complaints, a comprehensive inspection reviews multiple aspects of workplace safety, including:

  • Worksite conditions – Identifying hazards related to equipment, materials, and overall environment.
  • Employee practices – Evaluating whether workers follow safety protocols.
  • Recordkeeping – Checking injury logs, training records, and compliance documentation.
  • Safety programs – Assessing the effectiveness of employer safety initiatives.

Comprehensive (“wall-to-wall”) inspections can be extremely lengthy and onerous, consuming management time and attention better spent on employee safety. A follow-up wall-to-wall inspection is more likely to result in significant OSHA citations and penalties, such as willfuls (maximum of $164,759 per violation, but up to $263,599 per violation if it involves a work-related fatality) or failure to abate (fined at$15,625 per day for each violation).

What Triggers a Programmed Inspection for Cause?

Oregon OSHA mandates a comprehensive inspection when any of the following conditions are met:

  • A work-related fatality is linked to a violation.
  • An employer commits three or more willful violations within a 12-month period.
  • An employer commits three or more repeat violations within a 12-month period.
  • An employer has a history of non-compliance, and the Administrator deems a full inspection necessary for employee protection.

The final trigger is the most legally dubious, as “history of non-compliance” is undefined. Ostensibly intended to enhance accountability and enhance workplace safety across Oregon, the program permits Oregon OSHA’s Administrator to target employers for inspection so long as they are on a “bad history” list.  The Program appears to create a system in which Oregon OSHA can circumvent the legal requirements of probable cause and neutral basis for inspection, violating employers’ constitutional rights under the Due Process Clause to be free from unfair and arbitrary employment actions.

Importantly, employers inspected under this Program must learn the basis for an inspection at an Oregon OSHA opening conference; they may have legal defenses that must be raised at the opening or they will be waived.

Under the Program, these follow-up inspections must be initiated within one year of the closing conference that triggered the follow-up.

Avoiding Getting Placed on the “For Cause” List

Oregon OSHA’s “For Cause” Program further spotlights the importance of employers implementing a quality Safety and Health Management System and analyzing the workplace to reduce hazards to their lowest reasonable levels. In the event Oregon OSHA comes on site, employers must effectively manage the inspection to ensure that only the agency receives only responsive, truthful information.  If an employee experiences a fatality or serious injury that may result in a fatality, employers and management representatives can face criminal charges in addition to inclusion on the “For Cause” list.  In the event that Oregon OSHA issues a citation, it should be resolved in a way that eliminates the employer’s eligibility for a follow-up inspection under the program by ensuring the triggering criteria are not met.  An employer often will be better served by contesting the citations (especially those to which it has strong defenses) and reaching a settlement with exculpatory language that protects the company.

Conclusion

Oregon OSHA’s Programmed Inspection for Cause represents a critical shift in workplace safety enforcement. Employers must stay vigilant and proactively protect workers from safety and health hazards, address violations promptly, and maintain a strong safety culture. Employers who receive Oregon OSHA citations should work closely with qualified OSHA counsel to ensure that they are not subject to preventable comprehensive follow-up inspections.

The Trump Administration’s fiscal year 2026 budget proposal includes big cuts for OSHA.  The Fiscal Year 2026 Congressional Budget Justification is available here.  The plan includes an 8% overall budget cut to the Occupational Safety and Health Administration (OSHA). The proposed budget would reduce OSHA’s funding from $632.3 million in FY 2025 to $582.4 million in FY 2026.  In the context of rising salaries and costs, this represents a significant decrease in funding.

The most significant reduction in absolute terms is to OSHA’s enforcement programs, with the agency expected to spend $23.7 million less than the previous year’s allocation for enforcement. The budget also proposes a reduction in OSHA’s workforce from 1,810 to 1,587 employees, a loss of 223 full-time equivalent positions. This may be the result of buyouts and retirements, rather than layoffs.

With fewer compliance officers and reduced enforcement funding, we expect the agency to deprioritize programmed inspections and send more letters in lieu of onsite inspections relating to complaints and serious injuries.   While already slow to emanate from the agency, new OSHA standards and standard interpretations may become even less common.

Seyfarth Synopsis: On Thursday, June 5, 2025, OSHA Nominee David Keeling testified that he plans to adopt a more cooperative, proactive approach and pursue a new workplace violence regulation.

As we previously blogged, on February 11, 2025, President Trump nominated David Keeling as Assistant Secretary of Labor for OSHA, pending Senate confirmation. In the first Trump Administration, the OSHA nominee was never put to a Senate confirmation vote and the position was left vacant. 

Mr. Keeling has extensive experience in occupational safety from his tenure at two major logistics companies.  If confirmed in the position, we expected Mr. Keeling to adopt pro-employer positions and modernize workplace safety standards and regulations. The Senate has begun to assess Mr. Keeling’s nomination.  On June 5, 2025, Mr. Keeling testified before the Senate Health, Education, Labor and Pensions Committee, outlining his vision for workplace safety.

1. Modernization of Injury and Illness Prevention

Mr. Keeling outlined an intent to shift the focus at OSHA toward proactive injury prevention (rather than post-accident enforcement). To accomplish this, he advocated “to greatly accelerate the pace of modernization in the area of Regulatory Oversight and Rulemaking” centered on injury prevention and informed design, helping workplaces eliminate hazards before they lead to harm. Mr. Keeling  plans to harness and promote the use of predictive analytics to enhance onsite safety efforts. By utilizing data-driven insights, and moving past OSHA’s existing standards that “have become antiquated or unusable in the face of job modernization or technological advancements,” OSHA and employers could anticipate risks, prevent incidents, and tailor safety measures more effectively.

2. Collaboration and Cooperation within the Industry

Mr. Keeling emphasized expanded collaboration with employers, including with OSHA cooperative programs and industry alliances, to achieve employee safety. “We must move beyond existing silos and self-imposed barriers to achieve real improvement.”  Another priority is to “modernize and update existing Voluntary Protection Programs,” as the current programs provide a platform to work off of but are not enough to obtain successful outcomes in employee safety.

3. OSHA’s Enforcement Transformation

Mr. Keeling again displayed his intention towards relying on technology and data that exist today, which were not available when most OSHA standards were promulgated.  Mr. Keeling wants to enhance areas of workplace safety by harnessing existing data “to greatly enhance onsite safety efforts through predictive analytics.”  Mr. Keeling further stated that OSHA must engage “at-risk employers and employees through proactive risk mitigation and reduction programs before a worksite tragedy has taken place or a fatality has occurred.”

4. Workplace Violence Standard

Mr. Keeling also displayed a commitment towards continuity and proactive regulation of developing areas of workplace safety and health law.  Mr. Keeling committed to issuing a standard aimed at addressing workplace violence, a hazard currently addressed through OSHA’s use of the General Duty Clause (particularly in health care), and highlights OSHA’s growing concerns about exposures to workplace violence and gun violence.

As Mr. Keeling’s nomination progresses, these priorities will shape discussions on the future of workplace safety regulations and enforcement. If confirmed, his leadership could mark a significant shift in OSHA’s approach—moving beyond traditional enforcement into a more modern, dynamic, and prevention-driven era.

By: Adam R. Young, Mark A. Lies, II, and Bret W.Vetter

1. Introduction 

The ubiquity of smartphones and sensitive security cameras have made audio recording in the workplace more common.  Some may be accidental, while other recordings may be intentional attempts document workplace conversations in secret. Both types of recordings can constitute felony violations of state criminal laws, unfair labor practices, and sources of civil liabilities.  State laws on recording conversations — often addressed as criminal eavesdropping and wiretapping— vary significantly. Employers must understand this legal landscape when assessing a range of recoding issues.  

2. One-Party vs. Two-Party Consent States

State laws are divided into one-party and two-party (or “all-party”) consent. 

  • One-party consent states allow a person to record a conversation as long as one party to the conversation (typically the person recording) consents to the recording. Most states (e.g. NY and TX) follow this rule.
  • Two-party (all-party) consent states require that all parties to a private conversation must give their consent for a recording. Failure to have all parties consent to a recording violates the laws.  States like California, Florida, Pennsylvania, and Illinois are two party consent states.

Recording someone without the necessary consent in a two-party state can result in criminal penalties, including fines or imprisonment. In Illinois, eavesdropping is at least a Class 4 felony. Recording can further expose the recorder to civil liability.  In two party consent states, employers generally do not use recording devices in the workplace, such as audio components of security cameras.

3. What Employers Should Do if an Employee Secretly Records Conversations in the Workplace

A. In a Two-Party Consent State:

If an employee secretly records conversations without consent from all participants:

  1. Legal Exposure: The employee may be in violation of the state’s criminal eavesdropping or wiretapping laws, as well as Company policy prohibiting surreptitious recording.
  2. Employer Options
    • Conduct an internal investigation.
    • Take appropriate disciplinary action if allowed by company policy.
    • Consider contacting legal counsel to evaluate civil or criminal action
  3. Limitations:
    • If the recording relates to protected concerted activity under the NLRA (discussed below), employers must tread carefully before taking disciplinary action.

B. In a One-Party Consent State:

If the recording employee is a participant in the conversation, the act is generally legal—even if the other party is unaware. Note that:

  • Workplace policies can prohibit recording of meetings, surreptitious or open. Employers may discipline employees for violating internal rules about recording, especially where confidentiality is at issue.
  • Again, if the conversation relates to protected activity under the NLRA, employers must approach discipline with caution.

4. NLRA Restrictions and Covert Recordings

The National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activities for mutual aid or protection, including discussing wages, working conditions, or unionizing efforts. 

A. When Covert Recordings Are Protected:

Decisions from the National Labor Relations Board have protected employees who secretly record conversations when the employees are “acting in concert for their mutual aid and protection” , particularly when:

  • The employee is gathering evidence of unlawful conduct, such as harassment, discrimination, or interference with labor rights;
  • The recording is part of a broader effort to address or publicize workplace conditions; or
  • The employee is recording conversations about terms and conditions of employment.
  • The NLRB has upheld disciplinary actions where employees are not acting in concert for their mutual aid and protection or the employer has an “overriding interest” to restrict the recording, for example:
    • The recording violates clearly communicated and lawful company policies.
    • The recording invades significant privacy interests such as recording confidential company information or trade secrets or recording private personal information.

Notably, in an aggressive decision from the National Labor Relations Board during the Biden Administration, the Board determined that the National Labor Relations Act preempts state consent-to-record laws when employees are engaged in protected activity, meaning that an employee’s covert recording in a two-party consent state is protected when “acting in concert for their mutual aid and protection.”

Thus, while the NLRA provides some cover, it does not give a free license to record illegally or in violation of legitimate and lawful workplace rules, Employers must tread lightly with regard to employee discipline for secret recordings about protected activity, particularly with regard to occupational safety and health.

5. Interviewees’ Rights During an OSHA Inspection or Other Government Investigation.

During inspections or investigations by government agencies such as OSHA, EEOC, or the Department of Labor, employees have certain rights, including to refuse participation in interviews and have a representative of their choice present.  Employees have the right to object to audio and video recording of their interviews.  Their only obligation is to provide honest answers.  When employees (or their representatives) object to recording, government investigators typically relent and instead take notes.

But do interviewees and employer representatives have the right to record interviews and interactions with government investigators?

  • In one-party consent states, a person can typically record their conversation with an investigator without disclosing it.
  • In two-party consent states, the investigator sometimes must consent to be recorded. 
  • Recording without consent in a two-party state could expose you to criminal liability—even if the conversation is with a government official.
  • In some states such as Illinois, courts have created an exception to record police and some government investigators. 
  • We generally do not recommend that anyone record government interviews, and instead provide only honest answers to questions within the reasonable scope of the inspection.
  •  Management may take notes on what their interview or comments by an investigator.  Management notes over a more predictable and controlled format to document a conversation.

6. Best Practices for Employers

  1. In two-party consent states, utilize security equipment that does not audio record automatically.
    • Any recordings of videoconferences should be made clear and explicit.
  2. Establish Clear Policies Relating to Audio and Video Recording in the Workplace:
    • Adopt policies that prohibit unauthorized audio or video recording in the workplace.
    • Provide clear and compelling reasons for the policy and include a carve-out for employee rights under the National Labor Relations Act.
    • Communicate these policies through a written handbook and training.
  3. Stay Informed About State Law:
    • Know whether your worksite is in a one-party or two-party consent jurisdiction.
    • You may also need to understand the law where employees travel and record conversations.
  4. Respond Appropriately to Suspected Workplace Recordings:
    • Avoid unlawful retaliation if recordings relate to protected activity.
    • Consult qualified counsel before disciplining employees.
  5. Train Management on NLRA and OSHA Rights:
    • Supervisors should understand employee protections under labor law and during investigations.

7. Conclusion

The recording of workplace conversations—whether by employees, employers, or government agents—implicates a web of state laws and federal protections. Employers must address the issue with sensitivity and awareness of the risks. When in doubt, seek legal guidance to avoid missteps that could lead to criminal liability, civil suits, OSHA violations, and unfair labor practice charges.

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 Team.

On May 13, 2025, Cal/OSHA released a new discussion draft of its proposed regulation on Workplace Violence Prevention in General Industry. This latest version updates the July 15, 2024 draft we previously blogged about, and reflects stakeholder input gathered through the advisory committee process.

Key Proposed Revisions

Confronting Suspected Criminals

One of the most significant changes is the removal of the provision that prohibited employers from requiring employees to confront individuals suspected of committing a crime or engaging in workplace violence. In the July 15 draft, section (c)(10)(B) had stated:

“Employers shall not require or encourage employees to confront persons suspected of committing a criminal act or persons suspected of engaging in workplace violence.”

This entire subsection has been struck from the May 13 draft, signaling a shift away from what some stakeholders viewed as an overly restrictive operational mandate. The exception for dedicated security personnel, which had preserved confrontation authority for trained individuals, is no longer relevant.

Clarified Scope and Exemptions

Cal/OSHA has revised several exemptions to provide clearer applicability thresholds:

  • Employer size for exemption from the regulation is now based on total headcount, not fluctuating staffing “at any given time,” addressing concerns about regulatory uncertainty.
  • Certain industries, including security, janitorial, and domestic work, are covered by the regulation, even if the workplaces are open to the public.

Clarified and Expanded Definitions

In response to concerns that the definitions of “engineering controls” and “work practice controls” in the earlier draft could be enforced as mandates, the definitions now include language to emphasize that not all listed controls are required.

However, the updated definition of “workplace violence hazards” creates new concerns for employers. The draft still includes examples of working conditions that Cal/OSHA would presumptively consider hazardous, such as “frequent or regular contact with the public,” “entries to places of employment where unauthorized access can occur,” and adds conditions that are based entirely on subjective determinations, such as “hostile work environments” and “inadequate staffing.”

The new draft also adds a definition of authorized employee representative for purposes of the regulation only, which means “an organization that has a collective bargaining relationship with an employer or an organization acknowledged by a public agency as representing its employees.” Similar to employees, authorized employee representatives are permitted to request records related to hazard identification, evaluation and correction, training, and violent incident logs.

Employee Reporting

The May 13 draft adds a provision that requires employers to provide a non-supervisory reporting channel for concerns about “types 3” workplace violence, violence by an employee against another employee, supervisor, or manager.  Cal/OSHA made this change in response to stakeholder comments that expressed concern about potential suppression of reporting violent incidents when they involved an employee’s supervisor.

Record Retention Rules

Cal/OSHA’s advisory committee reorganized the Recordkeeping section, attempting to simplify the draft rule.  Notably, the May 13 draft clarifies that all records required under the rule, except training records, must be kept for five years. Training records must be kept for at least one year.

Next Steps

The draft will likely continue evolving through Cal/OSHA’s advisory committee process before moving into formal rulemaking. In the meantime, employers should continue to implement their existing Workplace Violence Prevention Programs but be mindful that updates will likely be required when Cal/OSHA’s Workplace Violence Prevention regulation is finalized.

Seyfarth Synopsis: On May 7, 2025, Cal/OSHA released a draft proposal to revise the outdoor and indoor heat illness prevention regulations (8 CCR Sections 3395 and 3396), aiming to implement requirements from AB 2243, signed by Governor Newsom at the conclusion of the 2021-22 legislative session. These proposed changes alter how employers must respond to heat hazards, and introduce new requirements for acclimatization, training, and plan distribution. Public comments are due by July 7, 2025.

Background

Signed into law in 2022, Assembly Bill 2243 directed Cal/OSHA to strengthen protections for outdoor workers exposed to heat and wildfire smoke. AB 2243 originally proposed an “ultrahigh heat” standard but was ultimately revised to focus on two main objectives for outdoor heat:

  1. Requiring Cal/OSHA to consider updates related to acclimatization and the distribution of Heat Illness Prevention Plans (HIPPs).
  2. Updating wildfire smoke protections for farmworkers, particularly the AQI threshold for mandatory respiratory protection. Cal/OSHA has yet to propose draft changes addressing this.

The proposed rulemaking released on May 7, 2025, reflects Cal/OSHA’s efforts to fulfill—and exceed—the bill’s first mandate: updating heat illness prevention standards. Notably, the proposed rulemaking includes changes to both outdoor and indoor requirements (T8 CCR §§ 3395 & 3396, respectively), even though AB 2234 only directed Cal/OSHA to update the outdoor requirements found in §3395.

Key Proposed Changes

Distribution of the HIPP – indoor and outdoor

Employers would be required to distribute their HIPP upon hire, during heat illness prevention training, and at least once a year to every covered employee. However, the draft language limits required distribution to no more than twice annually per employee.

Acclimatization – outdoor

    Current regulations require close observation of employees newly assigned to a “high heat area.” The proposed rule updates that language to specify “high heat area” to mean any area where the temperature equals or exceeds 95°F, aligning it with the existing “high heat” threshold in subsection (e).

    The proposal also introduces new acclimatization requirements for employees assigned to areas with temperatures of 80°F or higher. Employers would be required to either:

    • Implement high-heat procedures found in §3395(e) for five days, or
    • Adopt a phased acclimatization schedule for new employees, modeled after Fed-OSHA’s proposed heat rule:
      • Day 1: 20% exposure
      • Day 2: 40%
      • Day 3: 60%
      • Day 4: 80%
      • Day 5: 100%
    • For current employees returning after a break of more than 14 days, acclimatization would be limited to:
      • Day 1: 50%
      • Day 2: 60%
      • Day 3: 80%

    This phased requirement would not apply if the employer can demonstrate that the employee had consistently worked under similar heat conditions within the past 14 days.

    Acclimatization – indoor

      For indoor environments, employers would have two options for new or returning employees in a work area where: (A) the temperature or heat index, whichever is greater, equals or exceeds 87 degrees Fahrenheit, (B) the temperature equals or exceeds 82 degrees Fahrenheit for employees who wear clothing that restricts heat removal, or (C) the temperature equals or exceeds 82 degrees Fahrenheit:

      1. Apply the “assessment and control measures” section of the indoor heat standard found in §3396(e)(2) (excluding engineering controls found in §3396(e)(2)(A)) for five days, or
      2. Follow the same phased acclimatization schedules described above.

      The same exception applies indoors as outdoors: employers can opt out of acclimatization if the employee consistently worked under comparable heat conditions during the prior 14 days.

      What’s Next?

      Comments on the draft proposal are due by July 7, 2025, and can be submitted to:

      • eberg@dir.ca.gov
      • jlandaverde@dir.ca.gov

      An advisory committee meeting will be scheduled by Cal/OSHA at a later date. AB 2243 requires the Cal/OSHA standards board to “consider” adopting revised rules by December 31, 2025, but does not contain a deadline for the Board to adopt the rules.

      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 Team.

      Nevada’s sunny and hot summers pose hazards of heat-related illnesses to outdoor workers and non-climate-controlled indoor workers. April 29, 2025 marks a significant milestone for workplace safety in Nevada as the Nevada Occupational Safety and Health Administration (NV OSHA) begins enforcement of its newly adopted heat illness prevention regulation. The regulation, found in Section 618 of the Nevada Administrative Code and approved in November 2024, aims to protect workers from the dangers of heat-related illnesses.

      Background

      Federal OSHA, which regulates private employers in 27 states, has no heat illness regulations. In the absence of a federal standard, many state plans and state legislatures have issued their own regulations. Starting in the mid-2000s, states began regulating heat illness hazards, focusing mostly on outdoor and agricultural workers. California’s § 3395—Heat Illness Prevention in Outdoor Places of Employment—effective in 2005 as an emergency rule, was one of the first regulatory efforts to protect employees from heat-related illnesses, such as heat cramps, heat exhaustion, and heat stroke. Federal OSHA issued guidance and joined the discussion in 2011, such as through its “Water. Rest. Shade.” Heat illness prevention campaign. Since that time, several other states have implemented regulations addressed at outdoor and indoor heat illness:

      • California (§3396) – effective 2024, regulating indoor worksites.
      • Colorado – effective 2022, regulating agricultural workers.
      • Maryland – effective 2024, regulating indoor and outdoor worksites.
      • Minnesota – effective 2014, regulating indoor worksites.
      • Oregon – effective 2022, regulating indoor and outdoor worksites.
      • Washington – effective 2023, regulating outdoor worksites.

      In 2021, federal OSHA initiated a rulemaking to develop an indoor and outdoor heat illness standard. Federal OSHA published draft regulatory language in the Federal Register on August 30, 2024. As of the publication of this Alert, the federal OSHA heat illness prevention rulemaking is still ongoing.

      NV OSHA started its own rulemaking in 2023, finding that heat illness poses serious risks to workers in the State, especially those in outdoor and non-climate-controlled indoor environments. According to NV OSHA, the state developed its heat illness regulations in response to a dramatic increase in heat-related complaints, with 467 complaints filed through September 2024, compared to 344 in 2021.

      Nevada’s new rules were approved by the Legislative Commission on November 15, 2024. Nevada OSHA issued guidance on January 29, 2025, indicating it would begin enforcement on April 29, 2025.

      Key Requirements for Nevada Businesses

      The regulation applies to businesses with more than 10 employees in the State of Nevada and includes several critical measures:

      1. Job Hazard Analysis (JHA): Employers must prepare a one-time JHA to identify job classifications and tasks where employees are exposed to heat for more than 30 minutes in any 60-minute period, excluding breaks.

      • The JHA should include measures to mitigate or eliminate the identified heat illness hazard, which can be done through engineering controls, administrative controls, and/or personal protective equipment.
      • NV OSHA encourages employers to adopt acclimatization protocols for new or returning workers, but acclimatization is not required.
      • The employer must update its JHA if the job duties materially change or if there is a heat-related incident at the worksite.

      2. Written Safety Program: If the JHA identifies heat-related risks, employers must develop a written safety program that includes:

      • Provision of potable water
      • Rest breaks for employees showing signs of heat illness
      • Means of cooling for employees, including air conditioning, increased ventilation, cooling fans, shields for radiant heat, shade, etc.
      • Monitoring of working conditions by a designated person
      • Identification and mitigation of processes generating additional heat or humidity
      • Training for employees on recognizing and minimizing heat illness hazards
      • Emergency procedures for contacting medical services

      3. Training: Employers must train employees on how to recognize heat illness hazards and the procedures to minimize risks. Employers should also inform employees about the health risk factors that could exacerbate heat illness, such as certain health conditions, medications, and drug or alcohol use.

      4. Emergency Procedures: Designation of an individual responsible for contacting emergency services if an employee exhibits signs of heat illness.

      Exemptions

      The regulation does not apply to employers with 10 or fewer employees in the State unless the employer is engaged in the manufacture of explosives. The regulation also does not apply to employees working in climate-controlled environments, including vehicles with functioning air conditioning. However, if the climate control system fails, employers must make a good faith effort to restore it as soon as practicable.

      Collective Bargaining Agreements

      Employers can exceed the requirements of the regulation on their own or through collective bargaining agreements. Collective bargaining agreements cannot waive or reduce the requirements of the regulation.

      Other States Propose Regulations

      While the 2024-2025 legislative session has provided more than a dozen proposed heat illness-related laws and regulations that employers should keep an eye on, many of them have stalled-out or failed to meet internal legislative deadlines. New laws or regulations have been proposed in:

      • Arizona (stalled)
      • Colorado (failed)
      • Connecticut
      • Florida (stalled)
      • Georgia (stalled)
      • Illinois
      • Kentucky (stalled)
      • Massachusetts (2 proposals)
      • North Carolina (stalled)
      • New Jersey (stalled)
      • New Mexico
      • New York (stalled)
      • Rhode Island
      • Texas (stalled)
      • Virginia (failed)

      Even though many of these proposed laws and regulations have stalled or failed, the large number of proposals is a marked change from prior legislative sessions, indicating the willingness of individual states to go above and beyond federal OSHA requirements. Feel free to reach out if you need further details or assistance with specific aspects of the current heat illness prevention landscape.

      The final day of the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting began with a panel discussion on mental health, behavioral issues, and workplace violence. Many employers and practitioners have observed state plans making significant efforts to develop and implement workplace violence prevention plans. For example, California’s prevention plan requirements for general industry went into effect on July 1, 2024. Other states, like New Jersey with its panic device laws and New York with its Retail Worker Safety Act, are developing new laws for workplace violence safety in specific areas, industries, or workplaces.

      With acts of violence being the third highest form of occupational workplace injuries, the crux of the panel’s discussion centered on workplace behavior and how employer and employee training can further develop a safe workplace culture. The panel discussed an interesting case involving a mall shooting by a patron in an open-carry state. The mall prohibited firearms, mall security informed the patron multiple times that he could not carry the weapon within the mall, and, after being asked to leave, he left without issue or threat each time. Unfortunately, the final time, he engaged in a violent act. Ultimately, the ALJ found that a shooting by the patron could not be cited as a workplace violence hazard under the general duty clause. A key point in this case involved foreseeability, which the ALJ determined was not truly present with respect to the employer’s liability. Thus, according to the ALJ, citing an employer for the hazard posed by a mass shooter is beyond the scope of the agency’s authority under the OSH Act.

      Although the ALJ’s decision is favorable for employers, providing support against citations for unforeseeable and criminal acts, this case raises some hypotheticals for employers to consider, such as the interplay and balance with potential discrimination lawsuits. The panel highlighted that while risk management groups should proactively identify and develop steps to address potential violence within the workplace, they must carefully implement any plans in a non-discriminatory manner to avoid transitioning from an OSHA citation to civil litigation.

      After the panel concluded its discussion on workplace violence issues, we took a trip down memory lane to our law school days. However, instead of a mock trial, we observed a mock inspection featuring a non-employee third party attempting to gain access to a worksite on behalf of a union. This demonstration showcased the benefits, strategies, and concerns related to the new walkaround rule.

      As many are now familiar, OSHA’s walkaround rule expands the definition of “authorized representatives” to specifically include non-employee third parties, such as union organizers, if good cause can be shown for their necessity in conducting a thorough and effective workplace inspection. Despite ongoing litigation challenging the rule as arbitrary, capricious, and unconstitutional, it remains the law for employers.

      As we’ve emphasized from Day 1, with the shift in presidential administrations, there is a possibility the walkaround rule could change, potentially being stripped away. However, for all intents and purposes, the rule is currently in place and enforceable.

      The mock inspection, although comedic, emphasized some unique considerations, including potential impermissible advance notice to non-employee third parties, as well as strategic decisions on whether to proceed with the inspection or require the agency to seek a warrant. While no one is sure whether this rule may be subjected to a federal rollback, until that day comes, employers and practitioners have a lot to consider while it remains effective.

      After a short break, we reconvened for another panel discussion on employee complaints, injuries, and return to work. This discussion focused on avoiding discrimination, particularly concerning workers’ compensation claims and disabilities in the context of workplace injuries. The panel highlighted that both employers and employees benefit from extensive documentation. Several examples of documentation were noted during the discussion, such as workers’ compensation forms be provided immediately upon notice of a potential workplace injury, as well as documents reflecting the interactive process for employees seeking to return to work or obtain accommodations for a workplace injury.

      From an employer’s perspective, the big picture question was, “How do we make the carrot more approachable than the stick?” There is no question that employers want employees to come forward with concerns over workplace safety, but realistically, not every employee may feel comfortable or trustful when approaching management. More specifically, some employees may have the belief that they may face potential consequences for reporting an issue. The consensus of the panel was that the relationship between employers and employees is a foundational building block for promoting safety policies. This relationship encourages continual reporting to management and fosters an ongoing dialogue on ways to improve the workplace.

      The conference’s final session of the day concluded with a panel discussion on the challenges associated with attorney-client privilege and risk assessments. Employers and practitioners recognize the ongoing need to conduct internal audits and risk assessments to promote and develop safe workplaces. While there are several benefits to conducting internal safety and health audits and risk assessments, the documentation associated with these efforts could also serve as a potential roadmap for OSHA citations.

      From a benefits perspective, aside from the obvious identification of hazards and risks to protect employees, there is the ability to promptly address and mitigate these hazards before they result in injury or citation. Additionally, these audits can be used proactively to demonstrate to OSHA that the company addresses safety issues and has effective safety programs. Lastly, should a citation arise, the audits can support defenses, such as the lack of employer knowledge, by showing that ample steps were taken to identify all cognizable hazards.

      However, with every benefit, there are associated risks. For example, if audit recommendations have not been addressed when an incident or inspection occurs, the audit could be used as a roadmap, highlighting knowledge of a hazard that was not addressed. Furthermore, statements made in the audit or risk assessment reports could be used as admissions in litigation.

      Thus, the panel’s discussion emphasized the importance of considering performing these types of assessments under attorney-client privilege, particularly while efforts to address findings are underway. The key takeaway from a privileged assessment is its purpose: providing legal advice. From an ethical standpoint, attorneys for the employer, whether in-house or outside counsel, need to be mindful of applicable ethical rules, such as confidentiality. While a privileged assessment will need to be implemented and some degree of information will need to be shared with the company at large, the panel recommends clearly separating confidential documents, being specific with the information conveyed to the company, and securing a system and process to maintain documents and information shared under the applicable privileges.

      The decision to conduct these assessments under privilege is a critical consideration for any employer. It is vital to ensure that everyone involved understands how the audit process, its findings, and, most importantly, the legal advice are shared and the manner in which they are shared. We thank the ABA for hosting another great conference and we look forward to returning to next year’s Midwinter Meeting in 2026.

      Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Rancho Mirage, California. The meeting includes representatives from management, labor, and safety professionals, some who previously worked in government.

      We are attending the ABA Occupational Safety and Health Law Meeting this week in Rancho Mirage, California. On Thursday, March 6, the conference focused on current hot topics, discovery issues during litigation, jurisdictional issues, and ergonomic compliance.

      Day two kicked off with a panel discussion on current hot topics related to workplace hazards, rulemaking, and Executive Orders. The panel also took a deep dive into the current state of the proposed federal heat regulation.

      The discussion began with recent nominations and Executive Orders, including the current regulatory freeze pending review. This directive instructs agencies to halt the proposal or issuance of any new rules until they can be reviewed and approved by a department or agency head appointed or designated by the President. As noted in our blog post yesterday, the reasonable expectation of this administration is that far less rulemaking will occur. The recent Executive Order reinforces this expectation, and, with OSHRC not being a notable priority, it is anticipated that OSHA’s and MSHA’s rulemaking may face setbacks. One interesting and important rule in the spotlight is OSHA’s heat regulation. Notably, OSHA’s National Emphasis Program was set to expire next month, April 2025, but has been extended for an additional year. This extension comes as questions still arise about the future of the current proposed rule.

      Regarding the proposed heat regulation itself, many California employers and practitioners have compared the federal draft standard’s requirements to Cal/OSHA’s mandate for Injury and Illness Prevention Programs (IIPP). As many have observed, citations based on missing elements in IIPPs are the number one cited violation by Cal/OSHA. The federal standard’s requirements may also likely lead to frequent citations. Moreover, the federal draft standard mandates employee consultation. This, in conjunction with the walkaround rule, is a ripe area for interference from labor. As it stands, little guidance has been provided on how employers can satisfy the consultation prong of the proposed standard. Lastly, the proposed requirement of “heat safety coordinators” is likely to place a significant burden on employers, especially smaller companies, as the rule does not clarify whether a coordinator can perform other jobs or must solely fulfill the coordinator role. This may necessitate further hiring to ensure compliance with the rule.

      This leaves us and many others likely wondering, “What’s next?” Currently, informal public hearings will commence on June 16, 2025, with additional days as needed. This includes and requires a Notice of Intent to Appear to be submitted by May 5, 2025, and if testimony will exceed 10 minutes, commentators must provide written testimony plus any documents to be used by May 23, 2025. Once the hearing has concluded, employers and practitioners can still submit post-hearing written comments and legal briefs. We will be keeping an eye on this proposed regulation and continue to provide updates as the rulemaking process continues.

      After the first panel concluded detailing what lies ahead for federal heat regulation, a separate panel took the stage to address discovery in OSHA matters. A common theme observed by the panel was OSHA’s use of subpoenas. From a government perspective, OSHA’s increased use of subpoenas is designed to quickly obtain relevant documents related to inspections, even for matters that may not appear complex at first glance. While the increased use of subpoenas may become a new standard procedure, it does not seem that OSHA is taking an adversarial approach. The emphasis appears to be on expeditiously gathering information for a swift resolution.

      Another notable discovery mechanism discussed was shadowing and videotaping practices and procedures. While the panel noted significant benefits, such as creating testimony of adherence and displaying proper safety procedures, there were also concerns. For example, employers would need to ensure that all safety measures implemented for their employees are also provided to OSHA representatives engaging in shadowing and videotaping (e.g., wearing a hardhat or PPE, watching safety videos prior to entry, etc.). Additionally, the panel noted that shadowing and videotaping could make employees nervous, potentially affecting their usual work environment during these activities.  In a lighthearted moment during this discussion, our group lead, Brent Clark, reconnected with a panelist and his former advisee, former Seyfarth attorney Margaret Sewell, across the conference room.

      We also attended a breakout session on who to contact when reporting a workplace safety issue, focusing on jurisdictional issues for employers across various industries, including railways, airspace, and nonemployee injuries. This session highlighted key reporting procedures and timing issues, as well as notable gray areas for employers and practitioners. For example, OSHA applies in rail offices, maintenance shops, and warehouses, but not on-track activities, which fall under the jurisdiction of the Federal Railroad Administration (FRA). Thus, certain questions need to be addressed to determine jurisdiction for proper reporting, such as, “Was the worker engaged in rail operations?” This is crucial as agencies may not fully understand another’s regulatory scope. This may require working closely with an agency like OSHA to ensure it understands how the FRA’s regulatory scheme works and how jurisdiction should be handled.

      Similarly, there is a gray area between the Federal Aviation Administration (FAA) and OSHA. While it is understood that accidents in an airport, such as a slip and fall in the terminal or a lockout/tagout issue with baggage machinery, fall under OSHA, a major question is whether the activity constitutes in-flight working conditions. FAA safety rules preempt OSHA for in-flight working conditions, but determining when in-flight working conditions begin can be challenging. This panel discussion served as an important reminder to fully assess workplace injuries and issues to ensure proper reporting procedures are followed, avoiding jurisdictional and timeliness issues.

      In a separate breakout session, another panel focused on federal and state changes in the construction industry. The construction-related breakout session discussed unique and upcoming construction-specific regulations in federal OSHA and OSHA state-plans. After a brief discussion of strategies for dealing with the patchwork of construction-related regulations in state-plans—for example, California’s fall protection regulations differ from federal OSHA—a panelist presented the perspective of plaintiff’s counsel with respect to using Cal/OSHA inspection documentation, witnesses, and citations in a personal injury wrongful injury or wrongful death lawsuit.

      The second day concluded with a panel discussion on industry-specific ergonomic compliance, including logistics, hospitality, and healthcare. As many are aware, there is currently no national OSHA standard on ergonomics, only the general duty clause. The panel examined state plans that have implemented ergonomic standards to show how certain states have adopted such rules and how these rules may be on the horizon in other states and even at the federal level.

      The panel focused on and examined Washington state’s ergonomics legislation, which allows the state plan to implement and conduct rulemaking for one industry each year. Washington’s process for identifying industries to target first was based on the highest injury rates, which for Washington is baggage handlers in the airline industry. A new rule for baggage handlers is anticipated in 2026, with warehouses following the next year. Despite Washington beginning with the airline industry, panelist Elliot Furst, Senior Counsel, Attorney General of Washington Labor and Industries Division, Seattle, WA, noted that the general principles and definitions section should be the same for all future ergonomics rules, irrespective of industry or injury. This suggests that the first set of rules will have ample carryover effects into other industries likely to be subjected to ergonomic rules. If other states follow this rulemaking process, employers in all industries should pay close attention to the first industry targeted and provide comments to preserve their industry-specific interests.

      Of significant note, the panel discussed a Washington Industrial Safety and Health Act case in which the Board vacated all four citations, stating that the Department had failed to demonstrate that the hazard was present in any cited work process under the general duty clause, as it relates to ergonomics. The belief is that this matter will eventually reach the Washington Supreme Court, potentially involving a deference issue as discussed in yesterday’s blog post. This case exemplifies the burden of proof required in a general duty clause ergonomics case, further emphasizing the importance and value of rule making in litigation.

      With ergonomic regulations either in place or on the horizon, best practices recommend that employers adopt proactive approaches to ergonomics. This includes ongoing training, early reporting and assessment of ergonomics-related injuries, and continuous revisions and improvements tailored to specific industries or work activities. With day two now complete, we look forward to the final day of the conference tomorrow and will provide another update upon the conference’s conclusion.