By Jennifer L. Mora and Adam R. Young

Seyfarth Synopsis:  Employers considering a tolerant attitude towards recreational cannabis in the workplace should consider safety hazards and legal liabilities. 

In the heyday of the two-martini lunch, employers regularly tolerated alcohol in the workplace or employees presumably impaired by alcohol returning to work.  Over the succeeding decades, employers began to concentrate on the business and legal liabilities imposed by drug and alcohol use and impairment in the workplace — including increased absenteeism, mistakes, sexual harassment, workplace violence, and accidents/injuries.  Employers also discovered that their insurance companies claimed exemptions for certain claims if the employee that created the issue had been consuming alcohol at work. As a result, employers largely began to adopt policies that prohibited employees from using or being under the influence of alcohol (and drugs) while at work.  Most employers since have prohibited alcohol and drugs entirely or restricted alcohol to occasional company Christmas parties and social functions.

While we have not seen a mainstream resurgence of alcohol consumption in the workplace, we have noticed a distinct trend of some collaborative and creative workplaces, including co-working environments, to expand access to alcohol in the workplace, often with bars and kegs onsite.  Employers who elect to allow “drinking at work” are well-advised to implement policies regarding such use and consider a variety of safety and other issues that could result, including how to handle intoxicated employees, whether to provide transportation for employees to drive home, tracking and limiting consumption, defining the times during the day when drinking is and is not allowed, and handling complaints lodged against employees.  With the legalization of recreational marijuana in many states, some employers with permissive alcohol regimens are confronting whether they will treat marijuana as they treat alcohol.  How will they address workplace use and impairment?

Marijuana is unlawful under federal law and employers have the right to prohibit its possession, use, and impairment by employees in the workplace (or while on company time).  But some employers (often in creative fields) are considering relaxing their prohibitions on cannabis or even allowing cannabis in the workplace.  They often hope to attract newer generations of workers who may have a positive impression of cannabis and its contributions to creative and productive output in the workplace.  Employers must consider — are the liabilities that potentially result when an employee uses cannabis at work the same as or greater than those associated with alcohol use? Can an employer even allow this if it wants to? To what extent “weed at work” starts to become as mainstream as alcohol at work remains to be seen, but there are several considerations that employers might want to ponder.

  • One way in which alcohol and cannabis are the same is in the context of occupational safety hazards. Cannabis is a psychoactive drug that impairs decision-making, motor skills, and response time. As we have previously blogged, according to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are “safety-sensitive,” where an impairment will put the employee, coworkers, clients, or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.
  • Employers subject to the federal Drug-Free Workplace Act cannot allow employees to use any controlled substance in the workplace lest they risk losing their government contract. Although more states are enacting recreational and medical cannabis laws, cannabis still is illegal as a matter of federal law and, thus, employers with government contracts should not consider permitting the use of cannabis or controlled substances at work.
  • Employers may have better control of alcohol consumption at work if they make the alcohol available and have a procedure in place to ensure that only a certain amount of alcohol is consumed. Indeed, some employers use a “kegbot,” which is an app that requires employees to login each time they get a drink, which helps the employer track what and how much the employee drank. Some employers have a bar with a server that tracks and monitors consumption. If an employer allows employees to consume cannabis while at work, there simply is no way for the employer to know the strength of the cannabis being consumed or how much. While well-intentioned, this approach may be inadvisable with cannabis products. The employer providing or dispensing marijuana at work may be committing felonious possession with intent to distribute a Schedule I drug under federal law.
  • Under the Occupational Safety and Health Act’s “general duty clause,” employers must furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.” If an employer knowingly tolerates the use of an illegal and impairing drug, such as cannabis, even for medical purposes, while an employee performs hazardous tasks (e.g., driving a forklift), this might create an impermissibly hazardous environment and potential liability for a General Duty Clause violation. We have not yet seen a similar citation issued by federal OSHA or a state plan.  Some state plans also have regulations that prohibit employees from being under the influence of drugs or alcohol, which could be the basis of a further citation.

Accordingly, employers are struggling to address the new hazards of widespread use of recreational cannabis and its many risks to the workplace.  While not all employers are continuing drug testing for cannabis, employers would be wise to consider the many legal liabilities associated with permitting cannabis in the workplace.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Cannabis Law Practice or Workplace Policies and Handbooks Team.

By Jeryl L. Olson, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Chemical Safety and Hazard Investigation Board (CSB) has proposed new accidental chemical release reporting requirements that are broad in scope and would cover additional chemicals, lower threshold quantities, and more areas within a stationary source than existing regulatory release reporting requirements already facing industry.

The CSB proposed rules on Accidental Release Reporting last month which impose on industry new reporting requirements in addition to existing reporting requirements under CERCLA, EPCRA, SPCC, CAA, CWA, RMP, PSM and OPA in the event of an accidental chemical release.  84 Fed. Reg. 67899 (Dec. 12, 2019).  The proposed rule is confusing in that it utilizes different definitions than used under other EPA release reporting rules and requires facilities to undertake a new analysis of the type of chemical release that would fall under the scope of the CSB’s reporting requirements.

The rule is proposed pursuant to 42 U.S.C. 7412(r)(6)(C)(iii), which specifies that the CSB “shall establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigative jurisdiction.”  The proposal comes after a U.S. District Court ordered the CSB to issue a rule by February 2020 requiring the reporting of accidental chemical releases to the CSB.  See Air Alliance of Houston, et al. v. U.S. Chemical Safety and Hazard Investigation Board, 365 F. Supp. 3d 118 (D.D.C. 2019).

The proposed rule requires owners or operators of a stationary air emissions source to report to the CSB (in addition to all other reporting obligations to various regulatory authorities under other reporting requirements) any accidental release resulting in a fatality, “serious injury,” or “substantial property damage.”  In addition to basic contact and location information, the report must include a brief description of the accidental release; approximate time of the release; an indication of whether the release involved fire, explosion, death, serious injury or property damage; the material involved in the release and appropriate identifiers; evacuation efforts and scope of impact to the general public; and if known, the amount of the release, number of fatalities, serious injuries, and estimated property damage.

According to the CSB, “the purpose of the proposed rule is to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”  However, the rule is troubling because it imposes requirements that are overly burdensome and confusing in light of existing EPA rules, definitions and policies, and existing regulatory spill and release reporting requirements.  Below are six important distinctions about the CSB release reporting rule that industry members should take note of when considering the impacts of the required chemical release notifications:

First, the CSB has chosen to define “ambient air” differently and more broadly than EPA has under the Clean Air Act.  Specifically, ambient air under the proposed CSB rule means any portion of the atmosphere inside, adjacent to, or outside a stationary source.  Existing EPA air quality standards limit the definition of ambient air to the portion of the atmosphere that is external to buildings, to which the general public has access.  By defining ambient air differently than under the CAA, CSB’s intent is to “protect workers inside structures at a stationary source,” (as if existing OSHA regulations do not already do so).

Second, the CSB defines an “accidental release” to mean an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.  The term “extremely hazardous substance” in turn is very broadly defined to include any substance that alone, or in combination with other substances or factors, causes death, serious injury, or substantial property damages.  Not only are the conflicting definitions confusing, the CSB definition is different from the definition of “extremely hazardous substance” under CERCLA, which is defined based on lists of chemicals and their threshold quantities under Appendices A and B of 40 CFR Part 355.  The CSB definition on the other hand, does not apply only to existing regulated substances or threshold quantities of a hazardous substance; instead, it focuses on the consequences of the substance in the event of a release.  To highlight the broad scope of its applicability, the CSB definition of “extremely hazardous substance” includes the phrase “including but not limited to any ‘regulated substance’ at or below any threshold quantity set by the EPA Administrator. (emphasis added).”  Thus, industry cannot rely on existing laws and rules to guide the analysis of what constitutes an “extremely hazardous substance” that would require reporting to the CSB in addition to reporting under EPCRA.

Third, the CSB’s reporting requirement is tied to a fatality, serious injury, or “substantial property damage.”  The CSB has based its definition of “serious injury” on OSHA’s definition of the term, to include any injury resulting in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness, as well as any injury or illness diagnosed by a physician. This definition, coupled with the lack of a trigger threshold quantity of a chemical, increases the number of chemical releases that facilities would otherwise be required to report under EPCRA, whether or not such releases have the potential to have a significant impact.

Fourth, the CSB defines “general public” as any person except for workers, employees, or contractors working for (or on behalf of) the owner or operator of a stationary source from which an accidental release has occurred and any person acting in the capacity of an emergency responder to an accidental release from a stationary source.  The CSB acknowledges that EPA has longstanding policies and guidance documents limiting the scope of general public access to mean those areas where the general public does not have access to property, through implementation of a fence, physical barrier, or, based on December 2019 EPA guidance, other measures that would limit access to the land by the general public.  The CSB is purposefully expanding on the definition of “general public” to include individuals who may be within the boundaries of a property.

Fifth, the CSB requires reporting within four hours after an accidental release has occurred, whereas CERCLA and EPCRA reporting is required within 15 minutes of a release.  It has long been argued by industry that in the aftermath of a release, facilities are focused on managing response activities and ensuring employees and the public are safe.  Amidst ongoing emergency response activities, coordination with local responders, and notifications to a multitude of existing regulatory authorities who must already be contacted, facilities must also provide a separate report by e-mail or telephone to the CSB.

Finally, the CSB clarifies that notifications made to the National Response Center (NRC) will not suffice under its proposed rule.  The facility must take the additional step of submitting the NRC identification number to the CSB if it has not yet submitted a report directly to the CSB within four hours of the accidental release.  Enforcement for failing to timely report accidental releases will be delayed for one year after the effective date of the rule.

Facilities impacted by this proposed rule should stay abreast of any developments regarding when the rule goes into effect and the impacts of the language in the final rule.

For more information on how to comply with existing accidental release reporting requirements or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.

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

Seyfarth Synopsis:  First American case reported of deadly new Chinese coronavirus.

The Centers for Disease Control and Prevention (CDC) has indicated that it is closely monitoring an outbreak caused by a new 2019 Novel Coronavirus (2019-nCoV) (coronavirus) first identified in Wuhan, Hubei Province China.

Reuters reports that the virus has claimed nine lives and infected at least 470 people in China. The South China Morning Post reports that the “National Health Commission of China confirmed 900 people are still under medical observation.”  “The outbreak has been linked to Wuhan’s Huanan Wholesale Seafood Market, which has since been closed. Weeks after the market in the city in central China became ‘ground zero’, the authorities said human-to-human transmission played a role in the outbreak.”  The CDC indicates that human-to-human transmissions is likely, but the precise method and likelihood of transmission is unclear.

The CDC announced the first case in the United States in Washington State on January 21, 2020.  The patient travelled to the United States from Wuhan on January 15, 2020.  The patient sought care at a medical facility, where the suspected coronavirus was identified.

As widely publicized, on January 17, 2020, the CDC began implementing public health entry screening at San Francisco (SFO), New York (JFK), and Los Angeles (LAX) airports.  It later added entry health screening at Atlanta (ATL) and Chicago (ORD).  The CDC has also activated its Emergency Operations Center to better provide ongoing support to the coronavirus response.  The CDC is working closely with Washington State and local partners.  A CDC team has been deployed to support the ongoing investigation in Washington State, including potentially tracing close contacts to determine if anyone else has become ill.

The CDC warns travelers in an “Alert – Level 2, Practice Enhanced Precautions,” that:

  • Person-to-person transmission of coronavirus is occurring.
  • Preliminary information suggests that older adults and people with underlying health conditions may be at increased risk of severe disease from this virus.
  • Travelers to Wuhan, China, should avoid contact with sick people, animals (alive or dead), and animal markets.
  • Travelers from Wuhan to the United States, and other countries, may be asked questions about their health and travel history upon arrival.

Employers would be wise to keep abreast of the CDC website updates on this outbreak.  Employers whose employees travel to China for work should take action to notify employees of the health risks, including the latest information from the CDC.  Health services employers who potentially encounter the coronavirus should work with legal counsel to ensure that they have made proper notifications to public health authorities and have appropriately trained and protected their employees from occupational exposures.  If employees are exposed there may be legal implications under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and state workers compensation laws.

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

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

Seyfarth Synopsis: The Federal Occupational Safety and Health Administration (OSHA) has cited Florida Roofing Experts Inc. – a Jacksonville, Florida, roofing contractor, for failing to protect workers from falls at two work sites, with proposed penalties totaling $1,007,717.00.

OSHA initiated the inspections after receiving complaints of employees performing residential re-roofing activities without fall protection.  “Given the employer’s extensive history of violations, pursuant to OSHA’s egregious citation policy, the agency issued eight willful citations for failing to protect employees from fall hazards.”  OSHA Regional Administrator Kurt Petermeyer explained that “the employer continues to allow employees to work without fall protection, and has made no reasonable effort to eliminate the risk.”  “This employer has an extensive OSHA history with willful, serious, and repeat violations that has demonstrated an egregious disregard for the safety of their workers.”

In addition to the egregious citations, OSHA has placed the company on the Agency’s Severe Violator Enforcement Program list, due to high-gravity willful, egregious violations related to fall hazards.  For instance, OSHA had investigated the company and its predecessor, “19 times within the last seven years, resulting in 42 citations related to improper fall protection, ladder use, and eye protection.”

This case illustrates the need for employers to maintain and enforce safety programs, particularly with regard to key safety hazards and frequently cited regulations like fall protection in construction.  Employers should appeal defensible citations to minimize repeat liabilities and the potential for severe reputational harm.

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 Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Ilana R. Morady, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  On December 20, 2019, the National Defense Authorization Act for Fiscal Year 2020 (NDAA) was signed into law, including provisions for adding certain per- and polyfluoroalkyl substances (PFAS) to the EPA’s Toxic Release Inventory (TRI) list of reportable chemicals under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and Section 6607 of the Pollution Prevention Act (PPA).

Per- and polyfluoroalkyl substances are a group of synthetic chemicals that have commonly been used in manufacturing since the 1940s and can be found ubiquitously in food, commercial and household products, the workplace, drinking water, and in living organisms, including fish, animals, and humans. These chemicals are believed by EPA to be persistent in the environment, that is, they bioaccumulate and are believed to cause adverse health effects.

The TRI requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels, to report their environmental releases, waste management activities, uses and handling of such chemicals annually. EPA bases listing decisions on the chemical’s hazard (i.e., toxicity), not the risk (i.e., toxicity plus potential exposures).  The TRI listing provisions are significant for industry because they will generate new information about where PFAS are manufactured, stored and used, all of which will identify regulatory gaps and potential enforcement targets and inform future legislative and regulatory efforts to address PFAS.

There are approximately 600 PFAS manufactured and/or used in the U.S. The NDAA added several PFAS to the TRI program. Section 7321 of the NDAA, which provides an initial list of the newly affected chemicals, includes perfluorooctanoic acid (PFOA), perfluorooctane sulphonate (PFOS), perfluorononanoic acid (PFNA), perfluorohexyl sulfonate (PFHxS), GenX (CAS No. 62037-80-3 as ammonium salt; CAS No. 13252-13-6 as acid), and others. Facilities in industries regulated under the TRI framework, generally mining, various manufacturing, utilities, publishing, and hazardous waste sectors (see covered industry sectors), must begin tracking and collecting data on the usage of the affected chemicals in Calendar Year 2020, with reporting due by July 1, 2021.

Additionally, EPA is considering proposing a future TRI rule on certain other PFAS with a lower threshold quantity than the standard reporting thresholds (25,000 pounds for manufacturing or processing of a listed chemical and 10,000 pounds for “otherwise using” listed chemicals) due to the chemicals’ persistent and bioaccumulation potential. The Advance Notice of Proposed Rulemaking (ANPRM) that would include more PFAS compounds to be considered for reporting under the TRI program is open for comment through February 3, 2020. See EPA Advance Notice of Proposed Rulemaking on Per- and Polyfluoroalkyl Chemicals.  The addition of PFAS to the EPA’s TRI reporting requirements would require companies manufacturing, processing or otherwise using PFAS over threshold amounts, to report on annual Form R reports.

Public comments on the ANPRM must be submitted by February 3, 2020, to docket EPA-HQ-TRI-2019-0375 on www.regulations.gov.

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 James L. Curtis, Daniel R. Birnbaum, Adam R. Young, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2020 increases to OSHA civil penalties.

We have blogged previously about the U.S. Department of Labor’s (DOL) annual adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2020 inflation adjustments, which again nudge the penalties even higher.  85 Fed. Reg. 2292 (Jan. 15, 2020).

Under the 2020 rule, the new maximum OSHA civil penalties will be:

 2019 Penalties 2020 Penalties
Other than Serious Violations: $13,260 $13,494
Serious Violations: $13,260 $13,494
Repeat Violations: $132,598 $134,937
Willful Violations: $132,598 $134,937
Failure to Abate (Per Day): $13,260 $13,494

The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2020, for violations occurring after July 15, 2019.

Going forward, DOL is required to continue to adjust maximum OSHA penalties for inflation by January 15 of each new year.

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

By Joshua M. Henderson, Ilana R. Morady, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  The Cal/OSH Standards Board will vote this week on a proposed standard requiring employers to provide their employees and employee representatives access to the company’s Injury and Illness Prevention Program.

On January 16, 2020, the California Occupational Safety and Health Standards Board will vote on a proposed standard that will require employers in California to provide employees access to the company’s Injury and Illness Prevention Program (IIPP).  Under current regulations, California employers are required to have a written IIPP specific to the hazards of each workplace.  For more information about what is required in an IIPP, please see our December 27, 2019 blog, “All California Employers Must Have Injury and Illness Prevention Programs.”  There is currently no requirement under California law to provide employees access to it or copies upon request.

If the Standards Board approves the new standard, an employer will need to provide access to its IIPP upon request of an employee, the employee’s authorized representative (e.g., an attorney), or the employee’s union representative. Access must be provided in “a reasonable time, place, and manner” within 5 business days after the request is received.  An employee may request a hard copy or an electronic copy.  If a hard copy is requested, the first copy must be provided free of charge. An employer also may comply with the new standard by providing unobstructed access through a company server or website, which would allow an employee to review, print, and email the current version of the IIPP.

Employers also will be required to inform employees about their right to access the IIPP and the procedure for accessing the IIPP.  Accordingly, California employers should be prepared to update their health and safety policies and employee handbooks with this information and the specific procedure for accessing the IIPP.

As always, employers must be vigilant to update their IIPPs as the workplaces change and new hazards are introduced.

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 Health (OSHA/MSHA) Team.

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

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

On January 7, 2020, OSHA posted a Tweet reminding employers subject to OSHA electronic reporting of injury and illness records that their OSHA 300A Annual Summary is due to be electronically filed by March 2, 2020.  As we have previously blogged, OSHA no longer requires employers to electronically file their full OSHA 300 Logs along with the OSHA 300A Annual Summary.

As we previously blogged in OSHA Has Begun Using Electronically Filed 300A Data to Target Specific Industries and Facilities, OSHA published the electronic reporting due dates in its Site-Specific Targeting 2016 (SST-16).

After receiving the 300A forms from employers, OSHA indicated that it “will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection.”  The agency will then perform comprehensive inspections of employers who are selected for Program. 

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

By James L. Curtis, Mark A. Lies, II, Adam R. Young, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Occupational Safety and Health Administration (OSHA) has issued a standard interpretation cautioning employers on the use of headphones to listen to music on a construction site.

Many employers permit the use of headphones and music in a variety of industrial and construction settings, presumably to improve employee morale and retention. Other employers play music across the workplace with speakers and stereos, such as in a warehouse or operating room. Industry safety sources warn any benefits gained from the use of headphones in the workplace will be overshadowed by safety hazards. Specifically, headphones can present a safety hazard when operating large machinery by impeding the operator’s awareness of surroundings.

There are numerous instances of serious accidents and fatalities where employees were violating rules and wearing headphones, often while operating powered industrial trucks and other vehicles. In the warehousing environment, listening to headphones presents essentially the same risks as distracted driving. The risk is not only to the operators, but also pedestrians who may be in the nearby area. Another risk is that loose headphones can become caught in machinery or pose an electrical hazard.

In Federal OSHA’s recent standard interpretation, OSHA finds that “there is no specific OSHA regulation that prohibits the use of headphones on a construction site.” However, while the use of headphones on a construction site may be permissible at managerial discretion, such use may create or augment other hazards apart from noise. First, OSHA notes that the added decibels from headphones may cause a hazard to employee hearing and may undermine a hearing conservation program. Second, OSHA notes the related risks of distraction and inability to hear equipment, alarms, or warnings. OSHA cautions that “listening to music may produce a safety hazard by masking environmental sounds that need to be heard, especially on active construction sites where attention to moving equipment, heavy machinery, vehicle traffic, and safety warning signals may be compromised.”  OSHA further explains that “struck-by hazards are one of the four leading causes of death in construction.

OSHA has issued citations to employers following industrial accidents where employees have operated equipment (such as forklifts) while wearing headphones and have been unable to hear horns or other audio warnings. OSHA has cited the employers for failure to adequately train forklift operators or for failure to use the horn or other safety devices. Other OSHA regulations require employers to train employees about audio warning devices, for example, fire alarms, and to have the ability evacuate the workplace. Headphones can create a serious impediment to timely evacuation and result in a tragedy.

The recent standard interpretation echoes other warnings about the use of headphones in the workplace. In its “Protecting Yourself from Noise in Construction” booklet, OSHA indicates that “neither portable music player headphones nor hearing aids are substitutes for hearing protective devices.” In its “Agricultural Safety Fact Sheet,” OSHA directs employers to “instruct workers and operators not to use personal mobile phones, headphones or any items that could create a distraction”, and “never wear earbuds or headphones when working near farm vehicles and equipment.”

In addition, employers have a general duty under the Occupational Safety and Health Act to provide work environments free from any recognized hazard likely to cause serious injury or death. The guidance from OSHA is confused — OSHA advises employers to disallow headphone use where it is used in a way to create a recognized hazard. But the employees with the headphones control the volume and content. Accordingly, employers likely have no knowledge of whether employee music choices would create a hazard. OSHA’s ambivalent enforcement position leaves open the possibility that  an accident with a distracted employee using headphones could result in a General Duty Clause citation to the employer. In terms of safety and OSHA compliance, employers would be wise to limit headphone use and train employees not to use headphones or music in a way that creates a distraction or inhibits their ability to hear alarms or equipment.

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 Health (OSHA/MSHA) Team.

By Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA recently updated its National Emphasis Program on Amputations in Manufacturing Industries (NEP), adding a targeting methodology for industries with high employer-reported amputation statistics. Instruction CPL 03-00-022 (Dec. 10, 2019).

We had previously blogged about the previous 2015 update, OSHA Updates Emphasis Program on Amputations – Cites Employer and Places It on Severe Violators List.

National Emphasis Program on Amputations

The updated NEP targets industrial and manufacturing workplaces where employees are injured by unguarded or improperly guarded machinery and equipment. The NEP lists 75 NAICS code industries that will fall under the enhanced inspection regime, from meat and poultry processing facilities, to bakeries, to wood, plastics, and steel manufacturing facilities and more.

According to the Agency, the updated NEP:

  • Revises targeting methodology to include data from amputation reporting requirements;
  • Revises coding requirements for amputation inspections in the OSHA Information System; and
  • Adds new appendices on amputations targeting methodology and North American Industry Classification System codes.

OSHA compliance officers are instructed to evaluate employee exposure during setup, regular operation of the machine, clearing jams or upset conditions, making adjustments while the machine is operating, cleaning of the machine, oiling or greasing of the machine or machine pans, scheduled/unscheduled maintenance, and locking out and/or tagging out.  Inspections will pay “particular attention to employee exposure to nip points, pinch points, shear points, cutting actions, and other points of operation.”

Like before, OSHA will continue to select for inspection those industries that have received OSHA citations under the lockout/tagout standard (1910.147) and machine guarding standards (1910.212, 1910.213, 1910.217 and 1910.219).  OSHA will also pull from industries with high Bureau of Labor Statistics (BLS) incidence rates for nonfatal occupational injuries and illnesses involving days away from work, and NAICS codes with 50 or more amputations per year.  The revised NEP notes that OSHA will now also select industries based on employer-reported amputations.

The updated emphasis program provides a “three-month period of education and prevention outreach,”  which will run until March 10, 2020.  During this period, OSHA intends to continue to respond to complaints, referrals, hospitalizations and fatalities.  New enforcement activities will begin after the outreach period and remain in effect until canceled.  OSHA-approved State Plans are expected to have enforcement procedures that are at least as effective as those in the agency’s directive.

For manufacturing employers, it is essential that management review and understand their obligations under OSHA’s machine guarding and lockout/tagout requirements, including utilizing effective machine guarding and energy control procedures and ensuring that employees are appropriately trained on these procedures.  A proactive review of existing machine guarding methods and safeguards will go a long way towards being prepared when OSHA shows up for a programmed, planned inspection.

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