By Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Centers for Disease Control and Prevention’s (CDC) recent report indicates that vector-borne diseases are a rising causes of illness for outdoor workers in the United States.  Vital Signs: Trends in Reported Vectorborne Disease Cases — United States and Territories, 2004–2016 (May 4, 2018).  As summer approaches, employers in the construction, landscaping, outdoor hospitality, and other outdoor industries should take steps to inform and protect their workers from vector-borne disease.

In its report, the CDC found that the most common vector-borne pathogens in the United States are transmitted by ticks or mosquitoes, including those causing Lyme disease, Rocky Mountain spotted fever, and West Nile, dengue, and Zika virus diseases.  This CDC report examined trends in nationally reportable vector-borne diseases between 2004–2016. We have previously written about Zika, including, Zika – Employer Liability Issues and Zika Virus Spreading to United States: OSHA Provides Recommendations.

Due to the outdoor nature of certain types of work, such as construction, landscaping, and outdoor hospitality work such as at golf courses and pools, employers should be mindful of informing their employees on how to protect themselves from vector-borne diseases, how to recognize the symptoms of vector-borne diseases, and what to do if they believe they have contracted a vectorborne disease.

According to the CDC, the following diseases are currently reported as being transmitted somewhere in the United States, including Puerto Rico, the U.S. Virgin Islands, and American Samoa:

  • Lyme disease;
  • West Nile, dengue and Zika virus diseases;
  • Plague (Yersinia pestis); and
  • Spotted fever rickettsioses.

CDC notes that malaria and yellow fever are no longer transmitted in the United States but have the potential to be reintroduced.

The Occupational Safety and Health Administration (OSHA) provides limited guidance (Lyme Disease, Zika) for employers in the construction or outdoor-services industries. However, this guidance is generally applicable to help prevent any vector-borne disease:

  • Avoid brushy, overgrown grassy, and wooded habitats;
  • Remove leaves, tall grass, and brush from areas surrounding work areas or residential areas, thereby reducing tick, deer, and rodent habitat;
  • Eliminate sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate mosquito breeding areas. Train workers about the importance of eliminating areas where mosquitos can breed at the worksite;
  • Wear long-sleeved shirts and tucking pant legs into socks or boots to prevent ticks and mosquitos from reaching the skin;
  • Wear high boots or closed shoes that cover the entire foot;
  • Wear a hat with mosquito netting;
  • Spray insect repellents (containing DEET) on exposed skin, excluding the face. Use permethrin on clothes to kill ticks on contact) (don’t forget hazard communication training);
  • Wear light-colored clothing so that ticks can be more easily seen and removed before attachment occurs;
  • Check the body carefully for ticks or mosquito bites; if ticks are found, promptly removing them with tweezers. (DO NOT use petroleum jelly, a hot match, nail polish, or other products to remove the tick).

According to the CDC, between 2004-2016, a total 642,602 cases of vector-borne diseases were reported.  During this time, tick-borne bacterial and protozoan diseases more than doubled, from over 22,000 in 2004 to over 48,000 in 2016. Lyme disease accounted for 82% of all tick-borne disease reported across the continental United States. Mosquito-transmission in Puerto Rico, the U.S. Virgin Islands, and American Samoa accounted for most reports of dengue, chikungunya, and Zika virus diseases, while West Nile virus, transmitted by mosquito, was reported across the continental United States.

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

By Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has scheduled a meeting on June 12, 2018, in Washington, D.C., to solicit comments and suggestions from stakeholders in the trucking and railroad industries, on whistleblower issues within OSHA’s purview.  83 Fed. Reg. 19838 (May 4, 2018). 

Through its whistleblower division, the federal Occupational Safety and Health Administration (OSHA) enforces the whistleblower provisions of 22 separate statutes, including:

  • The Surface Transportation Assistance Act (STAA), which applies to trucking and transportation regulations;
  • The Moving Ahead for Progress in the 21st Century Act (MAP-21), which applies to motor vehicle safety information; and
  • The Federal Railroad Safety Act (FRSA), which applies to railroad safety.

OSHA has scheduled the June 12, 2018 meeting to obtaining information from employers and other interest groups on key issues facing the Agency’s Whistleblower program in the trucking and railroad industries.  OSHA indicates that this meeting will be the “first in a series of meetings requesting public input on this program.”  For this first meeting, OSHA is inviting comments on the following very basic questions:

  1. How can OSHA deliver better whistleblower customer service?
  2. What kind of assistance can OSHA provide to help explain the whistleblower laws it enforces?

The meeting is open to the public, and will be held from 1:00-3:00 p.m., in Washington, DC.

Note that individuals interested in participating or attending the meeting, either in-person or by telephone, must register by May 29, 2018, at https://www.eventbrite.com/e/occupational-safety-and-health-administration-stakeholder-meeting-registration-45311347460.

In addition, written comments or other materials should be submitted electronically, directly to the Federal eRulemaking Portal, using OSHA Docket No. OSHA-2018-0005.

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

Seyfarth Synopsis: This morning our panel from Seyfarth’s Workplace Safety team led a briefing on OSHA regulation and enforcement under the Trump Administration. 

One year into the Trump Administration, employers’ expectations for a more business-friendly Agency have not yet materialized, as the still-leaderless Agency proceeds ahead with widespread aggressive enforcement. The panel addressed recent developments and trends our Group has seen from federal OSHA, including the stalled nomination of Scott Mugno to head the Agency.  The panel also discussed:

  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Finally, the panel discussed practical tips to guide employers in this new regulatory environment.

If you were able to attend, thank you very much.  If not, see you next time. Either way, here are our presentation slides. Feel free to contact us if you have any questions on the materials.

For more information on Seyfarth’s Workplace Safety and Environmental team, see our recent blog posts and articles.

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

Seyfarth Synopsis: Due to the increased use of robotics and computer automation for many job functions that have historically been performed by employees raises, besides the traditional personnel and employment issues, a host of workplace safety issues.

The U.S. Occupational Safety and Health Administration’s (OSHA) has been working to address potential safety hazards posed by robotics in the workplace for many years. As early as 1987, in OSHA’s Guidelines for Robotics Safety, Directive No. STD 01-12-002, OSHA noted that “industrial robots can be used to perform hazardous tasks but in doing so they can create new hazards. With the burgeoning use of robots in industry, it is feared that without adequate guarding and personnel training, injury rates for employees working with robots may increase.”

Workplace Robotics Safety

Employers traditionally have called upon robots to perform unsafe, hazardous, highly repetitive, and “unpleasant” tasks, reducing potential hazards associated with those specific functions. Early robots, which mainly conducted a pre-programmed task and did not have any “intelligence” as many robots do now, created potential hazards not only under normal operating conditions, but also during “programming, adjustment, testing, cleaning, inspection, and repair periods.”

During workplace robot functions, the operator, programmer, or maintenance worker may temporarily walk within the robot’s “work envelope” (the area around the robot where performs its task) while power is available to moveable elements of the robot. This created potential machine guarding, lockout/tagout, and electrical safety hazards, among others. In addition, as industrial robots have advanced over the years, they have performed increasingly complex tasks with multiple tools and variable programmed motions, potentially exposing more employees to different hazards.

OSHA’s lockout/tagout regulations require employers to protect employees from unexpected energization of machinery by, among other things, dissipating all sources of energy when the machines are not in use and installing a lock. With robots, the primary source of protection from unexpected movement is a “programmable logic controller” or “PLC.” PLCs limit robots from moving when not performing their pre-programmed tasks and functions or if a certain condition is met – i.e. an interlocked door is open. While these PLC devices typically “fail to safe,” OSHA has been reluctant to accept them as equally effective means of employee protection along the lines of machine guarding or lockout/tagout.

Now, some thirty years after their widespread appearance in the workplace, robotics and computer automation have permeated nearly every industry, including manufacturing, warehousing, and even retail, potentially exposing additional workers to hazards. In Japan, some coffee shops now serve coffee utilizing robotic “baristas.”

OSHA’s Online Technical Manual Regarding Workplace Robotics

While OSHA has not promulgated regulations specifically covering use of robots in the workplace, OSHA has created an online technical manual to inform employers about the hazards associated with robotics and automated machinery, such as those which may result from malfunctions or errors in the programming or interfacing with peripheral equipment. Operational changes with the process being performed or the breakdown of other machinery or electronic sensors could also cause the robotics to react in an unwanted and hazardous manner. In its tool, OSHA identifies the following as important considerations for any employer intending to use robots in the workplace:

  1. Types of Accidents. Robotic incidents can be grouped into four categories:
    1. Impact or Collision Accidents. Unexpected movements, component malfunctions, or unpredicted program changes related to the robot’s arm or peripheral equipment can result in contact accidents.
    2. Crushing and Trapping Accidents. A worker’s limb or other body part can be trapped between a robot and other peripheral equipment, or the individual may be physically driven into and crushed by other peripheral equipment.
    3. Mechanical Part Accidents. The breakdown of the robot’s drive components, tooling or end-effector, peripheral equipment, or its power source is a mechanical accident. The release of parts, failure of gripper mechanism, or the failure of end-effector power tools (e.g., grinding wheels, buffing wheels, deburring tools, power screwdrivers, and nut runners) are a few types of mechanical failures.
    4. Other Accidents. Other accidents can result from working with robots. Equipment that supplies robot power and control represents potential electrical and pressurized fluid hazards. Ruptured hydraulic lines could create dangerous high-pressure cutting streams or whipping hose hazards. Environmental accidents from arc flash, metal spatter, dust, electromagnetic, or radio-frequency interference can also occur. In addition, equipment and power cables on the floor present tripping hazards.
  2. Sources of Hazards. The expected sources of potential robotics hazards include:
    1. Human Errors. Human errors in the programming, interfacing peripheral equipment, or connecting live input-output sensors to the robot or a peripheral device can cause dangerous, unpredicted movement or action by the robot. The incorrect activation of the “teach pendant” or control panel is a frequent human error. The greatest problem, however, is operators’ familiarity and complacency with the robot’s redundant motions so that an individual places himself in a hazardous position within the robot’s “work envelope” while programming the robot or performing maintenance on it.
    2. Control Errors. Intrinsic faults within the PLC control system of the robot, errors in software, electromagnetic interference, and radio frequency interference. In addition, these errors can occur due to faults in the hydraulic, pneumatic, or electrical sub-controls associated with the robot or robot system.
    3. Unauthorized Access. Entry into a robot’s safeguarded area is hazardous because the person involved may not be familiar with the safeguards in place or their activation status.
    4. Mechanical Failures. Operating programs may not account for cumulative mechanical failure, resulting in faulty or unexpected operation.
    5. Environmental Sources. Electromagnetic or radio-frequency interference (transient signals) could affect robotic operation and increase the potential for injury to any person working in the area.
    6. Power Systems. Pneumatic, hydraulic, or electrical power sources that have malfunctioning control or transmission elements in the robot power system can disrupt electrical signals to the control and/or power-supply lines. Fire risks are increased by electrical overloads or by use of flammable hydraulic oil. Electrical shock and release of stored energy from accumulating devices also can be hazardous to personnel.
    7. Improper Installation. The design, requirements, and layout of equipment, utilities, and facilities of a robot or robot system, if inadequately done, can lead to inherent hazards.

While, again, OSHA does not have regulations specific to robots in the workplace, employers would be wise to conduct job hazard analyses and evaluate any existing or potential robotic equipment installation, to abate any hazards posed by these machines.

Safety Regulation of Autonomous (Robotic) Vehicles

The ongoing robot revolution has ventured into the future of passenger and commercial vehicles. Some employers have embraced the possibilities of a potential transition to autonomous (technically, “robotic”) vehicles as an opportunity to limit driving-related hazards to their employees .

In a recent study, the U.S. Department of Commerce found that 15 million US workers (about one in every nine workers) drove vehicles as part of their jobs.  These jobs are concentrated in the transportation and warehousing industries. The study highlighted that the fatality rate (per 100,000 full-time equivalent workers) for motor vehicle operators from on-the-job roadway incidents involving motor vehicles is ten times the rate for all workers, and the numbers of roadway motor vehicle occupational injuries resulting in lost work time (per 100,000 full-time equivalent workers) is 8.7 times as large as that of all workers.

It should be noted that automated vehicles present their own hazards. OSHA has not yet weighed in on how employers should address hazards posed by autonomous cars and trucks at their facilities.

With regard to driving on public roads, the U.S. Department of Transportation and the National Highway Traffic Safety Administration (NHTSA) recently released new federal guidance for Automated Driving Systems (ADS), which should provide preliminary guidance with regard to some of the safety issues posed by autonomous vehicles. Employers should watch these developments closely, as new technologies change the marketplace and potentially affect employee safety.

Seyfarth’s attorneys have experience working with and advising employers on the hazards associated with robotics, the use of automated machinery, and autonomous vehicles. Please reach out to your Seyfarth attorney if you have any questions related to these issues.

By Adam R. Young

Seyfarth Synopsis:  Employers are widely installing AEDs to protect employees and visitors, but some states require strict compliance with AED regulations to insulate employers from tort liability.

Employers are Installing AEDs

Reports indicate that over 350,000 Americans suffer from sudden cardiac arrest each year, and approximately 95% of sudden cardiac arrest victims die before reaching the hospital. The majority who receive a defibrillation shock within four minutes of the event survive.  Perhaps based in part on this data, federal and state laws have mandated the installation of Automated External Defibrillators (AEDs) in public and government buildings.  Employers across the United States are installing AEDs to protect their employees, customers, and visitors.  Many employers are promoting the business case for installing AED devices, particularly as key management employees across the workforce age and become statistically more likely to suffer such an event.

Tort Liability

Plaintiffs’ lawyers consistently seek new ways to sue American businesses, especially with regard to novel tools for medical treatment.  Adding AEDs at your workplace can have the unintended effect of new liabilities — tort liabilities based on an employees’ (1) failure to use the AED when an employee suffers a sudden cardiac arrest, or (2) failure to administer aid with the AED properly.

Imagine: your company has purchased an AED.  A visiting customer suffers a cardiac arrest event and your employees scramble to retrieve the AED.  Your employee calls 911 and uses the AED as he waits for paramedics to arrive.  Unfortunately, the customer goes into a coma and passes away two days later.  One year later, you learn that the late customer’s estate has sued the Company and you personally, alleging that you and the Company have been negligent in installing the AED and allowing an employee to operate it “improperly.”

Limited Civil Immunity

Most states have passed laws making employers immune for lawsuits related to the provision or omission of care with an AED.  However, many of those laws, such as the Illinois AED Act, only provide immunity if the employer complies with each and every requirement in each statute’s laundry list of AED rules.  Some examples of these mandatory rules include:

  • Training Requirements — anticipated rescuers need to be properly trained by certified instructors. Rescuers and instructors needs to be retrained periodically.
  • Settings and Maintenance — employers must select AEDs from an approved government list. AEDs must be set in the appropriate modes. They must be properly maintained and tested.
  • Notification — Employers must notify the proper authorities with specific data on their AEDs. After use in a medical emergency, employees must activate the emergency response system.

Limited Room for Error

The bullets above are examples of common requirements under state AED laws.  Recent case law in Illinois, for instance, provides that if employers fail to comply with any single AED requirement, they could lose all immunity from negligence claims. Accordingly, courts have ruled that Illinois employers must comply with all training and notification requirements, or they face potential lawsuits related to employees’ misuse of AEDs.

All 50 states have their own requirements, which may vary considerably.  Employers should consult with legal counsel to ensure that they comply with their state’s AED laws.

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

Seyfarth Synopsis: On Tuesday, May 15, 2018, a panel from Seyfarth’s Workplace Safety team will lead an interactive Breakfast Briefing on OSHA regulation and enforcement. 

One year into the Trump Administration, employers’ expectations for a more business-friendly Agency have not yet materialized, as the still-leaderless Agency proceeds ahead with widespread aggressive enforcement. The panel will address the new developments and trends we have seen from federal OSHA, including the stalled nomination of Scott Mugno to head the Agency.  The panel will also discuss:

  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Finally, the panel will discuss best practices for managing an OSHA inspection, with practical tips to guide employers in this new regulatory environment.  To register for the Breakfast Briefing, follow the link below.

Tuesday, May 15, 2018
8:00 a.m. – 8:30 a.m. Breakfast & Registration
8:30 a.m. – 10:00 a.m. Program

Seyfarth Shaw LLP
233 S Wacker Dr., Suite 8000
Chicago, IL, 60605

Register Here

For more information on Seyfarth’s Workplace Safety and Environmental team, see our recent blog posts and articles.

By James L. CurtisBenjamin D. BriggsMark A. Lies, IIBrent I. Clark, and  Craig B. Simonsen

Seyfarth Synopsis: To be compliant, employers in State Plans that have not yet adopted OSHA’s new rule for electronic filing of injury data for Calendar Year 2017, are required to file in the federal OSHA database.

In its news release this week OSHA announced that “Section 18(c)(7) of the Occupational Safety and Health Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the Injury Tracking Application (ITA) online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

We have blogged previous concerning the new ITA rules.  See OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

OSHA has now notified employers in State Plans that have not yet adopted OSHA’s new rule for electronic filing of injury data for Calendar Year 2017 they are required to comply.  An employer covered by a State Plan that has not completed adoption of a state rule must provide Form 300A data for Calendar Year 2017.  All employers are required to submit their Form 300A data by July 1, 2018. The Agency noted that “there will be no retroactive requirement for employers covered by State Plans that have not adopted a state rule to submit data for Calendar Year 2016.”

We will continue to monitor OSHA’s activities relating to this rule.  OSHA has indicated that it will be reviewing the rule and will be issuing future guidance.

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

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Introduction: We are posting our colleagues’ California Peculiarities Employment Law Blog post on workplace violence.  While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely.  For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause.  Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared — such as where one employee makes threatening statements about a co-worker/manager.  But where the employer/employee has obtained a restraining order, the police are more likely to intercede.

By Christopher Im and Minal Khan

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On April 11, 2018, Arizona Governor Doug Ducey signed into law HB 2238, which amended the state’s administrative procedure laws to remove “Chevron Deference,” so that for disputes involving state administrative law, courts will not be required to defer to an agency’s interpretation of an ambiguous statutory provision.

The legal doctrine—named for the 1984 Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984)—has been criticized by various judges, including U.S. Supreme Court Justice Neil Gorsuch (then sitting on the Tenth Circuit).  The U.S. Senate has also unsuccessfully attempted to repeal the doctrine.

Under Chevron, if a statutory term is ambiguous, the agency has authority to construe that term and interpret its meaning within the statutory scheme by promulgating regulations following Administrative Procedure Act (APA) notice and comment procedures.  In such instances, the court must defer to that interpretation.  This is arguably permissible because Congress explicitly granted agencies the ability to interpret their governing statutes, if APA rulemaking procedures are followed in establishing the agency’s interpretation of regulations.

State courts have largely followed or deferred to Chevron when evaluating an interpretation of a state statute by the state agency charged with implementing that statute’s mandates.

HB 2239 amended Arizona Revised Statutes §12-910, regarding the scope of judicial review of administrative decisions. The new law added language to subsection E, and created subsections F and G. The new statute reads as follows:

  1. . . . In a proceeding brought by or against the regulated party, the court shall decide all questions of law, including the interpretation of a constitutional or statutory provision or a rule adopted by an agency, without deference to any previous determination that may have been made on the question by the agency. Notwithstanding any other law, this subsection applies in any action for judicial review of any agency action that is authorized by law.
  2. Notwithstanding subsection E of this section, if the action arises out of Title 20, Chapter 15, Article 2, the court shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.
  3. This section does not apply to any agency action by an agency that is created pursuant to Article XV, Constitution of Arizona.

The Arizona law is believed to be the first state law of its kind. Interestingly, it appears to mandate that no deference at all be provided to a state agency’s interpretation, perhaps meaning that the court cannot even evaluate or weigh the reasonableness of the agency interpretation.  The law, however, continues the trend toward scaling back agency autonomy and power.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Workplace Safety and Health (OSHA/MSHA) or Environmental Compliance, Enforcement & Permitting Teams.

By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).

The Final Rule, which will be effective on June 2, 2018, requires that:

  • Each working place be examined at least once each shift for conditions that may adversely affect safety or health of miners before work begins or as miners begin work in that place;
  • Mine operators promptly notify miners in affected areas of any conditions that may adversely affect their safety or health and promptly initiate appropriate corrective action. Notification is only necessary when adverse conditions are not promptly corrected before miners are exposed;
  • A record of the examination be made before the end of each shift, including the name of the person conducting the examination; the date of the examination; location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected, and the date of the corrective action (when that occurs); and
  • The record be made available to MSHA and miners’ representatives upon request.

The new rule imposes new requirements on mine operators, but is notably less burdensome that previous iterations of the workplace examination rule that has been in process for several years. For example, a previous proposed version of the rule would have required operators to examine workplaces before work began, whereas now the rule adds on “or as miners begin work in that place.” Also importantly, a previous version of the rule would have required operators to notify miners of all identified conditions, even if those conditions had been corrected before work began. Now, under the final rule, notification will only be required with respect to conditions that are not corrected. On a related note, operators need only make a record of conditions that are not promptly corrected.

Although the new rule is less burdensome on the regulated community than previous versions of the rule would have been, operators need to be mindful of potential pitfalls. The new rule appears to leave open the opportunity for MSHA to use operator examination records as “evidence” of a violation, or to support higher negligence findings. And of course the new requirements will provide MSHA with more bases to issue citations, since it will be a violation to not complete the various requirements under the new rule, including documentation of the date corrective action is completed for issues not promptly corrected.

MSHA is holding stakeholder meetings at six locations across the country to provide “outreach and compliance assistance materials on the Final Rule.” In addition, that Agency plans stakeholder meetings in Seattle, Washington, and at MSHA’s district offices by way of video teleconferencing at a later date.

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