By Adam R. Young, A. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. Curtis, Brent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC have updated statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

Taken from https://www.cdc.gov/poxvirus/monkeypox/response/2022/world-map.html

On August 4, 2022, the Biden Administration, through the U.S. Department of Health and Human Services, joined the WHO in declaring a public health emergency. Apart from the CDC’s guidance for congregate and healthcare settings, neither the CDC nor OSHA has released any guidance related to monkeypox in the workplace or otherwise identified monkeypox as a workplace hazard.

As always, Seyfarth’s Workplace Safety and Health team will advise employers on any direct impacts as this situation develops.

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

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 Adam R. Young, A. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. Curtis, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC issued statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

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 Jeryl L. Olson and Patrick D. Joyce

Seyfarth Synopsis: The U.S. Environmental Protection Agency Office of Inspector General (OIG) determined that USEPA has not been giving proper attention to voluntary disclosures, and recommended that the Agency update the way it screens and follows up on voluntary disclosures.

In a report dated June 30, 2022 (Report No. 22-E-0051) OIG criticized the Agency’s response to voluntary disclosures performed  by industry under the “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” (65 Fed. Reg 19618, April 11, 2000), also known as the “Audit Policy”. OIG concluded that “…EPA cannot ensure that it effectively screens regulated entities’ self-disclosure of environmental violations to identify and mitigate significant environmental concerns”.

The OIG Report notes that there is no formal written guidance for the Agency to screen disclosures (which are now performed under the web-based “eDisclosure System”), potentially leading to significant cases slipping through the cracks. OIG noted that the eDisclosure System is not designed to flag significant concerns (criminal conduct, imminent and substantial endangerment, ongoing discharge or release) and points out the lack of uniformity in how different USEPA regions screen voluntary disclosures. The Report specifically notes that certain Regions admit they are not staffed appropriately to allow proper screening or have believed mistakenly that headquarters, and not Regions, are to do screening.  The Report also notes that some Regions, (specifically Region 5), do not even have access to the e-Disclosure system. While OIG had concerns about EPCRA disclosures as well as non-EPCRA disclosures, it is mostly concerned about non-EPCRA disclosures.

In response to the OIG report, USEPA Office of Enforcement and Compliance Assurance (OECA) is undertaking the following tasks:

  1. developing national guidance for USEPA screening e-disclosures for significant concerns;
  2. training USEPA personnel in the regions and headquarters;
  3. developing performance measures for reviewing e-disclosures; and
  4. identifying areas for improvement.

OECA says they will complete task two by September 30, 2022, and the other tasks by September 30, 2023.

For industry, the Audit Policy has long been a key consideration in mitigation of potential violations and associated penalties. However as reported by OIG, it is generally the larger, more sophisticated companies that take advantage of the program that was originally aimed at smaller entities. 28,000 facilities self-disclosed violations between 1995 and 2020, and USEPA denied the penalty relief sought under the Audit Policy fewer than 12 times.  That is, the Audit Policy has been highly successful in mitigating penalties disclosed to the Agency. In light of the OIG Report and OECA response however, this success rate for industry is likely to change, and companies should carefully consider whether they specifically meet (or don’t’ meet) the factors that qualify a disclosure for penalty mitigation, before notifying the Agency of violations. The National Law Review has stated its belief that non-EPCRA disclosures will be more thoroughly reviewed, with greater scrutiny as to whether a disclosure qualifies under the audit policy, and with more follow-up inspections of sites that make disclosures.

Seyfarth has considerable experience in the use of the Audit Policy to self-disclose both non-EPCRA and EPCRA violations to avoid gravity-based penalties, and in the processes for eDisclosure and formal disclosures. For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

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

Seyfarth Synopsis: NIOSH reports in its recent Science Blog that “falls are the leading cause of death among construction workers.”

NIOSH notes that each year roughly 300–400 construction workers fall to their deaths, most often while working at heights on roofs, ladders, and scaffolds, and “[i]n 2020, out of 1,034 falls that resulted in death in the construction industry, 353 were due to falls from a height to a lower level.” The majority of fatal falls happen to roofing and finishing contractors in residential construction. Residential roofers are more than 10x more likely to die from a fall than other construction workers. Accordingly, construction falls remain a persistent and deadly safety concern. Of additional concern, from 2011–2021 the number of falls has generally increased. See Figure 1 below.

Figure 1. Fatal injuries and falls in the U.S. construction industry, 2011–2021. From https://blogs.cdc.gov/niosh-science-blog/2022/04/13/falls-campaign-2022

OSHA is also cognizant of this issue, as its section 29 CFR 1926.501 (Fall Protection in Residential Construction) is the most cited OSHA standard, by far. This graphic illustrates the dangers.

https://www.cdc.gov/niosh/construction/pdfs/highest-risks_16sn-508.pdf

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 Samantha L. Brooks, Karla Grossenbacher, and A. Scott Hecker

Seyfarth Synopsis: On July 12, 2022, the U.S. Equal Employment Opportunity Commission issued updated guidance for employers on the interplay of workplace bias laws and COVID-19 workplace testing, vaccinations, and other return-to-work issues, including reasonable accommodations and access to employees’ confidential medical information.  Employers continue to face these issues as the workplace returns to some level of pre-COVID-19 normalcy.  Employers should be diligent in reviewing the updated guidance to ensure their policies and practices are compliant.

Introduction

The EEOC has once again updated its pandemic-related Technical Assistance guide for employers — “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” (the “Guidance”) — on the subjects of workplace testing and other return-to-work issues.  In this document, the EEOC has revised the Guidance in a manner that takes into account the current phase of the pandemic and employers’ renewed emphasis on returning to in-person or hybrid work.

Workplace Testing

In the prior version of the Guidance, the EEOC took the position that screening testing was allowed under the ADA, even though COVID-19 viral tests qualify as medical examinations under the ADA, because “an individual with the virus will pose a direct threat to the health of others.”  The EEOC also stated in the prior Guidance that “[t]esting administered by employers consistent with current guidance from the Centers for Disease Control (CDC) will meet the ADA’s ‘business necessity’ standard.”

Now, in Section A.6 of the revised Guidance, the EEOC has removed the language stating that screening testing can be justified based on a direct threat analysis and replaced it with the statement that employers who want to conduct mandatory COVID testing for screening purposes will need to show that it is “job-related and consistent with business necessity” within the meaning of the ADA.

Although the Guidance states generally that employer use of a viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when consistent with guidance from the CDC, the Food and Drug Administration, and state and local public health authorities that is current at the time of testing, it also cautions employers that this guidance changes periodically.  In addition, the EEOC goes on to identify a number of considerations for employers to take into account in determining whether a business necessity justifies mandatory screening testing, presumably in the event the need for screening testing is not addressed by CDC, FDA, or local health authority guidance.  These factors include the level of community transmission, the vaccination status of employees, and what types of contacts employees may have in the workplace or work location.  The revised Guidance does not draw a distinction between screening testing required in the normal course and screening testing required of an unvaccinated person as an accommodation to a vaccine mandate.

Although some might view this change in approach to screening testing as setting a high bar for employers, the EEOC explains in its preamble to the revised Guidance that “[t]his change is not meant to suggest that such testing is or is not warranted; rather, [it] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”

Employee Return to Work After COVID-19

In Section A.5., the EEOC clarified that when an employee returns to the workplace after being out with COVID-19, the ADA allows employers to require a note from a medical professional explaining that the individual is able to safely return to work.  The revised Guidance explains that this is permitted under the ADA because, even if requesting such a note is a disability-related inquiry, it is justified under the business necessity standard because it is “related to the possibility of transmission and/or related to an employer’s objective concern about the employee’s ability to resume working.”  Alternatively, the Guidance provides that, instead of requiring such a note, employers may follow CDC guidance to determine whether it is safe for an employee to return to the workplace without a note from a medical professional.

Screening Applicants for COVID-19/Withdrawals of Offers

According to Section C.1. of the Guidance, if an employer screens everyone for COVID-19 before entry to the workplace (including employees, contractors, visitors, etc.), the employer can  screen an applicant who enters the workplace for an interview in the pre-offer stage in the same manner.  Otherwise, employers may screen job applicants for COVID-19 symptoms after making a conditional job offer, as long as they apply such policies consistently to all employees in the same type of job.

Under the EEOC’s previous Guidance, if an applicant to whom the employer had extended an offer and who needed to start work immediately tested positive for or had symptoms of COVID-19, an employer was permitted to withdraw the job offer.  Now, revised Section C.4 of the Guidance provides that, if an applicant who needs to start work immediately and has been extended an offer tests positive for COVID-19, has symptoms of COVID-19, or has been exposed recently to someone with COVID-19, the employer may withdraw the offer only if (1) the job requires an immediate start date; (2) CDC guidance recommends the person not be in proximity to others; and (3) the job requires such proximity to others, whether at the workplace or elsewhere.  The EEOC advises in the revised Guidance that employers should also look to see if a start date can be adjusted before withdrawing an offer.

Reasonable Accommodations

Delays.  In the prior version of the Guidance, the EEOC essentially acknowledged that pandemic-related delays in responding to accommodation requests were an inevitable reality given the large-scale shutdowns in early pandemic days.  In Section D.17 of the revised Guidance, the EEOC now states, in yet another acknowledgement that the circumstances surrounding the pandemic are no longer as dire as they once were, that an employer will be required to show specific pandemic-related circumstances that justify a delay in providing a reasonable accommodation to which an employee was entitled.  Thus, although the EEOC acknowledges that ongoing developments in the pandemic may present additional delays in promptly responding to employee requests for accommodation and that reopening the workplace may result in a large number of such requests, it will not be sufficient for an employer to argue that any such delays were caused by general “pandemic-related delays” or “pandemic-related staffing issues.”

Accommodations and PPE Policies.  The revised Guidance clarifies that, although an employer is generally permitted by federal EEO laws to require employees to wear personal protective equipment (PPE) and/or engage in other infection control practices, such as hand washing,  employers must provide accommodations under the ADA and Title VII, absent undue hardship, if employees cannot comply with these requirements.  In addition, in Section G.2 of the revised Guidance, the EEOC addresses the interplay between regulations issued by the Occupational Safety and Health Administration (OSHA) and the federal EEO laws.  The EEOC acknowledges that some employers may be required to comply with regulations issued by OSHA that require the use of PPE and that such OSHA regulations do not prohibit reasonable accommodations under ADA or Title VII — as long as those accommodations do not violate OSHA requirements.

COVID-19 Vaccinations

In the revised Guidance, while confirming an employer’s right to mandate the COVID-19 vaccine (subject to the reasonable accommodation provisions of the ADA and Title VII) and require proof of vaccination, the EEOC expands the scope of current confidentiality regulations related to the confidentiality of documentation or other confirmation of vaccination.

In Section K.4, the EEOC reiterates its prior guidance that an employee’s COVID-19 vaccination status (or COVID-19 test results), like all employee medical information, must be kept confidential and separated from the employee’s personnel file under the ADA.  However, the revised Guidance states, for the first time, that an employer may share such confidential information with employees “who need it to perform their job duties.”  The revised Guidance provides examples of employees who need to access confirmation of vaccination of other employees:

(a) an administrative employee assigned to perform recordkeeping of employees’ documentation of vaccination;

(b) an employee assigned to permit building entry only to those employees who are in compliance with a work restriction, such as COVID-19 vaccinations, testing, and/or masking). Such an employee may receive a list of employees who may or may not enter the workplace, but may not receive confidential medical information about why they are (or are not) on the list; and

(c) an employee tasked to ensure compliance with a testing requirement for employees who needs to review testing documentation submitted by those employees.

Employees who are given access to confidential medical information in order to perform their job duties must keep it confidential, and presumably it is the employer’s responsibility to see that they do.

Implications For Employers

The updated Guidance reflects that employers and employees alike will feel the impacts of the COVID-19 pandemic for the foreseeable future.  Employers need to review their current practices and policies regarding mandatory testing, screening, and/or vaccinations programs; collection of proof of vaccination and/or testing records; and their accommodation processes to ensure compliance with the updated Guidance. Indeed, it is best practice for employers to regularly check for updates from the EEOC and CDC, and to regularly review their practices and policies to ensure compliance.

Please contact your Seyfarth relationship attorney or the authors of this blog for assistance.

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

Seyfarth Synopsis: Omicron BA5 strain has become dominant and has evolved to render vaccinations and boosters less effective, resulting in many employers revisiting their COVID-19 policies.

According to the Centers for Disease Control and Prevention (CDC), “SARS-CoV-2, the virus that causes COVID-19, is constantly changing and accumulating mutations in its genetic code over time. New variants of SARS-CoV-2 are expected to continue to emerge. Some variants will emerge and disappear, while others will emerge and continue to spread and may replace previous variants.” For instance, a  new version of COVID, omicron is dominant in the U.S. As of last Saturday, the coronavirus subvariant known as Omicron BA.5 accounted for nearly 54% of the country’s COVID cases, according to the CDC. A similar subvariant, BA.4, makes up approximately 17% more. Studies further indicate that COVID-19 reinfections are associated with lasting health effects and long COVID symptoms.

The FDA has noted that vaccines and boosters currently available are significantly less effective against these new variants, and the agency is working with vaccine manufacturers to tailor boosters to address these inadequacies, as well as to anticipate further evolution of the virus. On June 30, 2022, after a June 28 discussion and vote by the Vaccines and Related Biological Products Advisory Committee, the FDA issued a statement explaining that it

advised manufacturers seeking to update their COVID-19 vaccines that they should develop modified vaccines that add an omicron BA.4/5 spike protein component to the current vaccine composition to create a two component (bivalent) booster vaccine, so that the modified vaccines can potentially be used starting in early to mid-fall 2022.

The FDA appears to have based this recommendation on its determination “that vaccines . . . need to be modified to address circulating variants.”

While federal and state OSHA agencies continue to conduct inspections and issue citations relating to COVID-19 hazards, federal OSHA largely has abrogated its leadership in protecting employees from COVID-19, failing to advise employers on how to address new strains or issue employers any updated guidance since August 13, 2021, despite the long-standing promise of an “UPDATE COMING SOON.” The prospect of new strains of COVID-19, reinfections, and lasting health effects have led many employers to revisit their COVID-19 precautions and policies. Employers with vaccination requirements continue to update those policies, including new booster requirements to ensure employee safety from new variants.

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 Jeryl L. Olson, Patrick D. Joyce, Rebecca A. Davis, Jose Almanzar, Ilana R. Morady, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: The environment was yet another topic addressed by the United States Supreme Court in a ruling where it dealt a heavy blow to the EPA’s efforts to cut greenhouse gas emissions. In West Virginia v. Environmental Protection Agency, America’s highest court ruled 6-3 that the United States Environmental Protection Agency (USEPA) overstepped its authority when enacting the Obama-era 2015 Clean Power Plan, and limited the Agency’s ability to address “major questions,” such as curbing greenhouse gas emissions “beyond the fence line,” without explicit authority from Congress.

In one of its final opinions this term, the Supreme Court reversed the D.C. Circuit Court of Appeals’ decision invalidating the Trump-era 2019 Affordable Clean Energy (ACE) rule, which implicitly reinstated the Obama-era 2015 Clean Power Plan (CPP). The Supreme Court ruled that USEPA overstepped its Congressionally-granted authority when it enacted the CPP and attempted to regulate not only the amount of emissions emanating from individual coal and natural gas power plants using Section 111(d) of the Clean Air Act, but also whether coal and natural gas power plants should continue to operate at all at a grid level. The Court found USEPA’s admitted attempt to shift the type of fuel used to generate power from coal and natural gas to “renewables” (called “generation shifting” by the Court) to be a “major question” of economic policy and public health that only Congress has the authority to regulate or to explicitly delegate. The Court’s finding that the Clean Air Act (CAA) and its various amendments do not contain an explicit delegation or regulatory power to USEPA, has finally put the Agency’s CPP to rest. However, the ruling may open floodgates to new claims against federal agencies based on arguments that they are without power to regulate all manner of “major questions,” from drug safety to banking.

Although the impact on other federal agencies is not yet known, a crystal ball is not needed to see the immediate impact on the powers of USEPA. Since the passage of the Clean Air Act 50 years ago, USEPA has exercised its authority by “setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly” at the individual plant level. In 2015, however, USEPA issued the CPP, concluding that the “best system of emission reduction” (BSER) under Section 111(d) of the CAA for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources using three “building blocks.”

The first building block required using “best available control technology” to improve a power plant’s “heat rate” to improve the facility’s efficiency, which would have the effect of reducing the amount of pollution per unit of fuel utilized. The second and third building blocks utilized the novel concept of “generation shifting,” so USEPA could choose an emission standard so stringent that heat rate improvement at the individual plant level would not suffice for facilities to achieve compliance, and a power company would have to shift power generation, first to natural gas and then to renewables, to achieve emissions targets “at the grid level.” This had never been attempted before, and the question before the Supreme Court was whether this broader concept of USEPA’s authority was “within the power granted to it by the Clean Air Act.”

The majority of the Supreme Court emphatically said “no.”

Sections 111(b) and 111(d) of the CAA direct USEPA to (1) “establish…standards of performance” for “new sources” and “existing sources,” taking into account various factors, such as the “best system of emission reduction which . . . has been adequately demonstrated,” (2) ascertain the “degree of emission limitation achievable through the application” of that system, and (3) impose an emissions limit on existing stationary sources that “reflects” that amount.

In its 2015 CPP, having decided that the “best system of emission reduction” was one that would reduce carbon pollution mostly by shifting power generation to “cleaner” sources, USEPA then set about determining “the degree of emission limitation achievable through the application” of that system.

According to the Supreme Court, the “emissions limit the Clean Power Plan established for existing power plants was actually stricter than the cap imposed by the simultaneously published standards for new plants.” USEPA’s own modeling concluded that the “rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors.”

In 2019, the Trump administration determined that the Obama-era USEPA had overstepped its authority in implementing the CPP, repealed the CPP, and, in its place, enacted the ACE rule. The ACE rule only implemented “building block” one of the CPP: improved “heat rates.” A number of States and private parties filed petitions for review in the D.C. Circuit, challenging EPA’s repeal of the Clean Power Plan and its enactment of the replacement ACE Rule. The D.C. Circuit eventually overturned the ACE rule and remanded the CPP to USEPA for further consideration. West Virginia and several other states and private parties filed suit, challenging the D.C. Circuit’s reversal and remand. Though USEPA argued petitioners did not have standing to challenge the D.C. Circuit’s ruling because it never officially revived the CPP, and indicated it would not enforce the CPP while engaging in new rulemaking under Section 111(d) of the CAA. The Supreme Court nevertheless found that the harm to the State petitioners was real because USEPA did not officially repeal the CPP and standing was established.

Chief Justice John Roberts, delivering the opinion of the conservative majority, wrote:

Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.

Slip opinion at 31. (Internal citations omitted).

As noted above, the precedent established by the Supreme Court is not limited to the powers of the USEPA, and the decision likely has implications beyond the Clean Power Plan and ACE rule. As was shown in the Supreme Court’s decision to reinstate the injunction against the Occupational Safety and Health Administration’s Vaccinate or Test Emergency Temporary Standard, an Agency’s authority to regulate questions that are traditionally reserved for Congress (i.e., “major questions”) is limited and may not exist at all, though it appears the courts are addressing the issue on a case-by-case basis. This holding could extend beyond USEPA and OSHA and into the realm of agencies such as the Equal Employment Opportunity Commission (EEOC), Department of Homeland Security, and others.

The immediate impact of the decision is that companies are likely to get relief from certain Clean Air Act monitoring and recordkeeping obligations, and impediments to permitting that limit modifications. It is unclear how EPA will respond, but certainly expansive and transformative regulatory approaches will be subject to challenge. As always, please reach out to your Seyfarth Workplace Safety and Environmental attorney to discuss questions or to see how this may impact your company.

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

Seyfarth Synopsis: In U.S. Dep’t of Labor v. Tampa Elec. Co., the U.S. Court of Appeals for the Eleventh Circuit used common sense and reason to find the word “uncontrolled” is unambiguous and not open to interpretation – “because we conclude that the release of ammonia at Tampa Electric’s plant wasn’t ‘uncontrolled’ within the meaning of the OSHA standard, we hold that the standard didn’t apply to [the Company’s] response and, therefore, that [it] didn’t violate it.”

Tampa Electric Company received a citation under 29 CFR 1910.120, OSHA’s emergency response regulations also known as “HAZWOPER” (short for Hazardous Waste Operations and Emergency Response). OSHA alleged that Tampa Electric violated HAZWOPER’s respiratory protection requirements when Company employees responded to a release of ammonia within the facility without a self-contained breathing apparatus. At hearing, OSHA argued the release of ammonia was “uncontrolled,” and thus covered by HAZWOPER, because the ammonia was not contained once it entered the atmosphere. Tampa Electric argued HAZWOPER did not apply to its response actions because the Company’s personnel were able to stop and control the release. The Administrative Law Judge, the Review Commission, and the Eleventh Circuit all sided with Tampa Electric.

The Eleventh Circuit explained that the key definition is for “emergency response,” which the regulation defines in three parts. The Court relied upon the definition’s first sentence quoted below, which explains what is an ‘emergency response,’ as well as the second and third sentences, which explain what is not an “emergency response:”

Emergency response or responding to emergencies means a response effort by employees from outside the immediate release area or by other designated responders (i.e., mutual aid groups, local fire departments, etc.) to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. Responses to incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area, or by maintenance personnel are not considered to be emergency responses within the scope of this standard. Responses to releases of hazardous substances where there is no potential safety or health hazard (i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses. Slip opinion, pg. 3.

29 C.F.R. § 1910.120(a)(3). (Emphasis added).

The Court found that the determinative question was “whether the release of ammonia at Tampa Electric’s plant constituted an ‘uncontrolled release’ within the meaning of the definition’s first sentence.” The Court agreed with Tampa Electric and the Review Commission, holding that Tampa Electric’s “response to [the ammonia release] wasn’t an ‘emergency response,’ and the HAZWOPER standard didn’t apply.” Accordingly, the Eleventh Circuit denied OSHA’s petition for review and affirmed OSHRC’s order vacating the citation.

The Eleventh Circuit opinion demonstrates how federal courts are giving less weight to Agency interpretations and reigning in federal OSHA’s aggressive enforcement positions and over-extensions of the regulations. The Court cited Kisor v. Wilkie, 139 S. Ct. 2400, 2415–16 (2019), signaling the Circuit’s continued deviation from providing Chevron deference to an Agency interpretation. Employers should track developments in OSHA litigation, and work with Seyfarth’s Workplace Safety & Environmental team to ensure that they have limited all relevant liabilities.

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

Seyfarth Synopsis: On June 28, 2022, OSHA announced publication of an Advance Notice of Proposed Rulemaking (“ANPRM”) regarding potential revisions to the Agency’s lead standards, lowering permissible blood lead levels.

OSHA’s ANPRM concerning the point at which Blood Lead Levels (“BLLs”) require medical removal seeks public comment on reducing those levels across both the Agency’s general industry (29 CFR 1910.1025) and construction (29 CFR 1926.62) lead standards. The Centers for Disease Control and Prevention have published studies suggesting that the current OSHA Permissible Exposure Limit (“PEL”) for lead may be too high to protect against certain health effects.  Accordingly, OSHA asserts in its ANPRM that this regulatory activity is

based on medical findings since the issuance of OSHA’s lead standards that adverse health effects in adults can occur at [BLLs] . . . lower than the medical removal level . . . and lower than the level required under current standards for an employee to return to their former job status.

Lead exposure can result in “adverse health effects, including but not limited to effects on the reproductive, cardiovascular, neurological, respiratory, and immune systems.” To gather information in an effort to address these negative impacts, the ANPRM seeks input from employers on

OSHA’s triggers for medical removal of workers with elevated BLLs and their return to lead-exposed work; OSHA’s requirements for medical surveillance and management of lead-exposed employees; several additional provisions and compliance protocols that are undergoing public review in State Plans’ ongoing work to update their occupational lead standards; and the costs and effectiveness of lead exposure identification and control strategies.

Agencies issue ANPRM’s before developing more robust proposed rules, so OSHA is early in this rulemaking process. Nonetheless, employers should consider commenting now to ensure they can influence the substantive rulemaking process by making their voices heard. Interested employers have until August 29, 2022 to submit their comments online.

Our previous blog, OSHA “Launches” Rulemaking to Significantly Update and Massively Increase the Number of Chemicals with Permissible Exposure Limits described an Obama-era effort to reduce exposures to hazardous chemicals at work by modernizing OSHA PELs, many of which dated to the passage of the OSH Act in 1971, but that effort did not result in different BLLs, nor did it ultimately come to fruition. OSHA has engaged in other relatively recent PEL battles, including concerning its silica and beryllium standards (see, e.g., Seyfarth blog entries here, here, and here), and we can expect similar conversations to take place regarding the need to protect employees from the adverse health effects of lead exposure as the lead rulemaking progresses.

Please connect with your Seyfarth attorney with questions regarding this or any other workplace safety and environmental issues you may have.

By Brent I. Clark, Adam R. Young, A. Scott Hecker, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: We recently blogged that Silica is the New Asbestos: New OSHA Regional Emphasis Program Will Target Respirable Silica Hazards in Six States. Now the federal Mine Safety and Health Administration (MSHA) has launched an enforcement initiative to better protect miners from health hazards resulting from repeated overexposure to respirable crystalline silica.

Crystalline silica is a common mineral found in the earth’s crust. Materials like sand, stone, concrete and mortar contain crystalline silica. Respirable crystalline silica – minute particles at least 100 times smaller than ordinary beach sand – becomes airborne during cutting, sawing, grinding, drilling, and crushing stone and rock.

Without proper protections and engineering controls in place, miners can be exposed to dangerous levels of crystalline silica particles, which increases their risk of developing serious silica-related diseases. These conditions include incurable lung diseases such as coal workers’ pneumoconiosis, commonly referred to as “black lung;” progressive massive fibrosis, the most severe form of black lung; silicosis; lung and other cancers; chronic obstructive pulmonary disease; and kidney disease.  MSHA news release, June 8, 2022.

MSHA Assistant Secretary Chris Williamson indicated that MSHA is “committed to using every tool in MSHA’s toolbox to protect miners from developing debilitating and deadly lung diseases that are entirely preventable. We have seen too many miners carrying oxygen tanks and struggling to breathe just to take a few steps or do the simplest of tasks after having their lungs destroyed by toxic levels of respirable dust.”

As part of the program, MSHA “will conduct silica dust-related mine inspections and expand silica sampling at mines, while providing mine operators with compliance assistance and best practices to limit miners’ exposure to silica dust.”

Accordingly, employers should be prepared for more MSHA inspections related to silica.

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

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.