By Rachel BernasconiPaul Cutrone, Marissa Dreher, Ben DudleyChris GardnerErin HawthorneJustine GiulianiSarah GoodhewPhilippa NoakesDarren PerryPenny StevensHenry Skene and Michael Tamvakologos

Seyfarth just celebrated ten years of service to leading employers in Australia. To mark the occasion, we invited some of our partners to share insights on the evolution of employment, industrial relations and workplace safety in Australia over the past ten years.

What have been the biggest changes in employment law, industrial relations and workplace safety over the previous ten years?

“In my view, one of the biggest changes has been the challenge for employers of all sizes to comply with increasingly complex employment laws and, more specifically, modern awards.” – Rachel Bernasconi, Partner

“The changing health and safety enforcement climate for organisations and individuals. The enforcement setting is shifting to a more assertive and higher stakes regulatory environment.” – Paul Cutrone, Partner

“An increased community awareness and engagement with respect to workplace safety, and with that, greater expectations on both organisations and the individuals within them. This change in community expectation has been reflected across Australia with the introduction of outcome-based industrial manslaughter laws, the increased use of reckless endangerment provisions (against both companies and senior managers), significantly increased maximum fines and, more recently, a heightened regulatory focus on psychosocial risk.” – Marissa Dreher, Partner

“The biggest changes have involved the courts and government grappling with what the concept of “employment” really means in modern society, and how far regulation should stray into the private relationships between parties in the 21st century. We have seen the High Court of Australia hand down decisions in relation to what “casual employment” means, as well as where the line is drawn between an employment relationship and an independent contracting relationship. And then the government has legislated to change the result of both of those cases.” – Ben Dudley, Partner

“Business leaders and HR have never been under more pressure when it comes to the workplace. A tight labour market combined with ever increasing regulation has underscored the difficulty. Related to this we’ve seen the bolstering of individual rights and a wellness zeitgeist as workplaces have never spoken more of resilience but seen less of it. The rise of the individual and a certain entitlement mentality has seemingly coincided with a decline in individual accountability with everything left to institutions (the employer being but one) to solve. For HR, “risk” has been the big theme.” – Chris Gardner, Partner

“Workplace issues have become significant business and brand risks, while increasing in complexity. Formerly, many businesses would have a siloed approach, with separate teams dealing with safety, HR, compliance, workers compensation and payroll issues. The issues that employers need to deal with have increasingly required a cross-disciplinary approach. To take some simple examples: workplace bullying and sexual harassment issues need input from HR and from safety teams. Award compliance increasingly requires legal and payroll teams to work closely together, often with external experts as well. We are also seeing a trend of claims that would previously have been addressed as employment grievances (e.g. performance management or organisational change concerns) lead to allegations of safety breaches and/or workers compensation claims.” – Erin Hawthorne, Partner

“Managing people is a first order priority for Boards and senior leaders. Employers are increasingly deploying risk-management based approaches in all facets of the employment relationship – whether ensuring their people are paid in accordance with applicable industrial instruments, meeting multi-layered work health and safety regulation, and discharging the positive legal duty introduced under the Respect@Work reforms. There is little latitude for error, with enhanced penalties for non-compliance and enforcement activity reinforcing the expectation that businesses will get it right the first time.” – Justine Giuliani, Partner

“The regulation of hazards and risks – psychosocial and sexual harassment being two examples – in the workplace that have traditionally been considered within business to be outside the ‘WHS’ sphere. And the introduction of industrial manslaughter as a consequence based offence into risk based legislation.” – Sarah Goodhew, Partner

“Ten years ago, employers were nervously anticipating the impact of new (typically, individual) claims introduced under the Fair Work Act 2009 (Cth) including general protections claims and applications for stop bullying orders. With that in mind, over the last ten years, employers have been very focused on managing individual claims, which has in turn led to a huge focus on workplace investigations. It is now very common to see employers skilling up their workforces (including HR and ER teams, and managers generally) to undertake robust investigation processes or seeking external investigation assistance for complex matters.” – Philippa Noakes, Partner

“For me, while so much has evolved, there are three major changes. The first is that compliance with employment obligations have emerged as a much higher order risk item for companies. This has been as a result of greater complexity in our laws, but also more active enforcement by regulators and the representatives of worker groups. Related to that, the second is that compliance with workplace obligations is a major reputational issue for company boards, much more so than a decade ago. Finally, we are seeing a significant lifting of the bar in the standards of behaviour expected in our workplaces, and a much greater preparedness for workers to assert their rights when these they feel these expectations have not been met.” – Darren Perry, Managing Partner

“Only 18 months ago, my top three would have been the ever increasing complexity of workplace regulation, the success of human resources and organisational leadership in response, and a commensurate weakening of union penetration and influence in most workplaces (with a few notable exceptions). Today, the answer is the four rounds of “Closing Loopholes” reforms. These changes dwarf anything that has happened in workplace relations since the introduction of enterprise bargaining in the early ‘90s. And those who remember (then) Minister Gillard proudly proclaiming in 2008 that the Fair Work Act shifted the “pendulum” back to the middle, should be aghast at just how far Minister Burke has managed to push it to one side. The reforms touch all points of the workplace: imposing increased regulation of engagement, individual rights to access arbitration, collective rights to commence bargaining and arbitration of actual conditions, new sector-wide bargaining and capacity to impose employment rights on contractors and labour hire workers, and universal workplace delegates rights to speak for both members and non-members. And you will not find anywhere in the reforms any new measures to improve productivity or even to require that it be taken into account.” – Henry Skene, Partner

“The introduction of industrial manslaughter for employers in most Australian jurisdictions signalled an increased focus by regulators on strengthening workplace safety and accountability. This legislative development underscores a critical shift towards prioritising the wellbeing of employees, demanding stricter adherence to safety protocols, and holding employers responsible for ensuring a secure work environment.” – Penny Stevens, Partner

“In my view, the biggest changes we’ve seen to the law are in areas where the law lagged social attitudes and has now caught up, namely:

  1. Compliance with workplace obligations and standards such as timely and correct payment is now a Board issue: Ten years ago, it would have been rare for a Board to spend time on this kind of issue. Now systemic underpayments attract a high level of scandal and can damage reputations – corporate and personal. As a result, organisations are spending much more on IT and auditing at the front end and litigation at the back end.
  2. Individuals and vulnerable individuals and groups empowered: Both generational shifts in thinking and social movements such as #MeToo have reset expectations about what is acceptable. In legal terms there is focus on practices such as confidentiality agreements to resolve harassment claims and many recommendations and changes that have come out of the Respect@Work report.
  3. Government intervention in IR: After decades of incremental or no reform, the Labor Government has shown a willingness to enter the IR landscape and make far reaching changes to the point of nearly prescribing outcomes. Companies in some industries are heavily impacted and succeeding with this level of regulatory risk and intervention requires a planned approach.” – Michael Tamvakologos, Partner

On behalf of the team, we would like to thank our valued clients. We are excited to continue working with you in 2024 and beyond.

In our next post, our partners look forward to sharing their insights on the changes and trends that are poised to significantly impact employers over the next five to ten years.


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By Adam R. YoungJames L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: As a new update this year, certain employes are required to submit OSHA Form 300, 301 and 300A online.  OSHA recently offered a webinar on using it’s Injury Tracking Application (ITA) to submit this data.

Effective January 1, 2024, OSHA now requires some employers to upload OSHA Form information to its Injury Tracking Application (ITA) by March 2 of the following calendar year (i.e., 2023 data).  Employers must use the secure ITA website for injury and illness data submissions. Users may manually enter data, upload a CSV file to add multiple establishments at the same time, or transmit data electronically via the API (application programming interface).

OSHA previously hosted a webinar regarding the mechanics involving in electronically submitting the OSHA forms.  Only certain employers are required to comply with the new electronic submission requirements.  Last year, OSHA published a Final Rule that stating that establishments with 100 or more employees in high-hazard industries, which were already required to submit information from the OSHA Form 300A Annual Summary, must now also submit information from the OSHA Form 300 Log and the OSHA Form 301 Incident Report. Employers should consider the number of employees and industry classification at a specific site establishment, rather than at the entire Company.  Companies that are unsure of their obligations can use the ITA Coverage Application to determine if they are required to electronically submit their injury and illness information to OSHA.

Under the rules, establishments that meet any of the following criteria during the previous calendar year do not need to electronically submit their information to OSHA:

  • The establishment’s peak employment during the previous calendar year was 19 or fewer employees, regardless of the establishment’s industry.
  • The establishment’s industry is listed on Appendix A to Subpart B of OSHA’s recordkeeping regulation, regardless of the number of employees working at the establishment.
  • The establishment had a peak employment between 20 and 249 employees during the previous calendar year AND the establishment’s industry is not on Appendix A to Subpart E of OSHA’s recordkeeping regulation.

Readers may also checkout OSHA’s Injury Tracking Application training video.

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, Mark A. Lies, II, A. Scott Hecker, Patrick D. JoyceJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: While the Solicitors at the Department of Labor (DOL) only litigate civil OSHA citations, DOL has announced enhanced coordination with criminal law enforcement for employers’ representatives in fatality cases. Criminal matters often involve highly resource intensive work that involves safety managers, operations managers, and executives.

Under the Occupational Safety and Health Act, OSHA has the power to refer employers to the United States Department of Justice for criminal enforcement. Penalties include up to six months in federal prison and up to a $250,000 personal fine. The agencies review all cases where there is an alleged willful violation resulting in a fatality for potential criminal enforcement. Accordingly, all employers should evaluate and prepare for criminal exposure following any fatal accident, even if it may not initially appear work-related.

In her FY2023 Enforcement Report, Solicitor of Labor Seema Nanda noted “enhanced criminal enforcement coordination” to criminally prosecute managers who commit willful OSHA violations. Solicitor Nanda’s report provided recent representative examples, including a recent case against ALJ Home Improvement, Inc. and its owner. This roofing contractor allegedly had a history of OSHA citations, with more than two-dozen willful OSHA citations between 2019 and 2023, “including willful egregious fall protection citations” in 2022 and 2023. During this period, two of ALJ’s workers died after falling on the job. In 2023, “the U.S. Attorney for the Southern District of New York charged [ALJ’s owner] for willfully violating OSHA regulations following a criminal referral from OSHA.” During the criminal referral to DOJ, DOL has continued to litigate civil citations against ALJ and its owner individually, obtaining an administrative settlement and a district court consent injunction that requires ALJ and its owner “to comply with a series of enhanced compliance measures to ensure employee safety.” The injunction also makes clear that ALJ’s “practice of allowing its employees to work without fall protection poses an imminent danger of death or serious harm.”

Nanda also noted that DOL and OSHA are using criminal contempt as a tool to hold employers accountable for not complying with the laws that DOL enforces. In one case, a Nebraska roofing contractor received multiple OSHA citations for serious safety violations, including failure to use fall protection. According to the Enforcement Report, “after these citations became final orders, SOL filed a petition for the Department in the Eighth Circuit Court of Appeals, pursuant to section 11(b) of the OSH Act, to enforce the orders.” Section 11(b) allows DOL to seek court intervention to enforce abatement of violations and provisions in settlement agreements, and can allow for a finding of contempt of court if an employer does not comply. The Eighth Circuit granted the petition and ordered the contractor to comply.

Following the Nebraska contractor’s failure to comply with the court’s order to abate safety violations, SOL filed a motion to hold him in contempt. The Eighth Circuit granted the motion, and concluded that the contractor was in contempt. In September 2023, after the contractor continued to ignore the Court’s order, a Special Master appointed by the court ordered him to be brought into custody after he failed to appear at a hearing regarding the appropriate penalties and sanctions to ensure compliance with the final orders. “The Court released the contractor from custody only after he agreed to an interim plan to cease and desist all business operations until a compliance plan was entered.” Ultimately, the parties agreed to a compliance plan that would ensure the contractor’s compliance with the Eighth Circuit’s final orders as well as his future compliance, which the court accepted as resolution of the contempt Order.

Employers must protect the safety and health of their employees. In the event of an unfortunate fatality at work, including from a presumed personal health condition, employers should get counsel on the phone immediately. They must be especially vigilant to preserve evidence, protect privileges, and manage the impending OSHA inspection. Managers should be prepared and defended by counsel in their interviews with OSHA, as they face potential criminal liability and prison time if the agency chooses to issue willful citations.

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

By  A. Scott HeckerAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week, OSHA is promoting safe workplaces for young adults and working teenagers.

According to OSHA, employers must follow all OSHA safety and health standards to prevent their employees from being injured or becoming ill on the job. Workers under age 18 may be limited in the hours they can work, the jobs they can do, and the equipment they can use. At the federal level, OSHA’s sister agency, the Wage and Hour Division, enforces such requirements, and OSHA refers stakeholders to federal and state wage and hour child labor law resources that should help them understand what rules apply.

OSHA advises young employees about their rights, their employer’s responsibilities, and ways to stay safe on the job.  For instance, employees, including young workers, have the right to:

  • Work in a safe place.
  • Receive safety and health training in a language that they understand.
  • Ask questions if they don’t understand instructions or if something seems unsafe.
  • Use and be trained on required safety gear, such as hard hats, goggles and ear plugs.
  • Exercise workplace safety rights without retaliation or discrimination

The employer is required to:

  • Provide a workplace free from serious recognized hazards and follow all OSHA safety and health standards.
  • Provide training about workplace hazards and required safety gear.*
  • Tell them where to get answers to their safety or health questions.
  • Tell them what to do if they get hurt on the job.

To help protect themselves they may:

  • Report unsafe conditions to a shift/team leader or supervisor.
  • Wear any safety gear required to do the job..
  • Follow the safety rules.
  • Ask questions.
  • Ask for help if needed.

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

By Ilana MoradyPatrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week the California Department of Public Health (CDPH) issued an order revising COVID-19 definitions and procedures. Because the Cal/OSHA COVID-19 standard incorporates by reference certain CDPH definitions, the CDPH order impacts what the regulated community needs to be doing to comply with the Cal/OSHA COVID-19 standard.

Background

On January 9, 2024, CDPH updated its COVID-19 Isolation Guidance and State Public Health Officer Order. The most impactful aspect of the update is a new definition of “infectious period.” Instead of spanning 2 days before symptoms (or positive test date in the absence of symptoms) through 10 days after symptom onset or testing positive, the new infectious period is:

For symptomatic confirmed cases, from the day of symptom onset until 24 hours have passed with no fever, without the use of fever-reducing medications, AND symptoms are mild and improving.

For asymptomatic confirmed cases, there is no infectious period for the purpose of isolation or exclusion. If symptoms develop, the criteria above will apply. 

CDPH still acknowledges that the “potential infectious period” is 2 days before symptoms (or positive test date in the absence of symptoms) through 10 days after symptom onset or testing positive, and accordingly still recommends wearing a mask through day 10. However for purposes of isolation and work exclusion, using the redefined, shorter, infectious period is recommended.

Why did CDPH make the change?

The context for the revisions is CDPH’s proclamation that “We are now at a different point in time with reduced impacts from COVID-19 compared to prior years due to broad immunity from vaccination and/or natural infection, and readily available treatments available for infected people. Our policies and priorities for intervention are now focused on protecting those most at risk for serious illness, while reducing social disruption that is disproportionate to recommendations for prevention of other endemic respiratory viral infections.” The order also explains that the revisions were made “In order for the Cal/OSHA COVID-19 Prevention Non-Emergency Standards​​​ to continue to be consistent with public health guidelines.”

What does the change mean for employers under the Cal/OSHA non-emergency COVID-19 standard?

Non-healthcare employers are still covered by the Cal/OSHA non-emergency COVID-19 standard, 8 CCR 3205, which does not expire until February 3, 2025. Under Section 3205, employers have several obligations that are significantly impacted by the shorter infectious period, the redefinition of which is incorporated by reference into Section 3205.

Shorter work exclusion: Although COVID-positive employees will still be subject to 10-day masking, employers can allow them to return to work much sooner than before, so long as symptoms are gone for 24 hours.

Close contacts: CDPH’s order specifies that the new “infectious period” definition is for the purposes of isolation and exclusion of confirmed cases. This raises the question of whether a different definition of “infectious period” should apply when making a contact-tracing determination of who might have had a close contact with the COVID-19 case. It appears possible that CDPH is still recommending a 48-hour look-back period for contact tracing based on the “potentially infectious period.” However for purposes of Cal/OSHA compliance under Section 3205, there is only one definition of “infectious period” that applies to all aspects of the regulation: the shorter infectious period that begins on the day of symptoms. It’s possible Cal/OSHA and/or CDPH may update their guidance to address this ambiguity. In any event, using a shorter infectious period for purposes of contact tracing will tend to result in a smaller pool of identified close contacts. This means that many employers will be able to winnow down the number of employees to whom they provide close contact notice and offer no-cost testing.

Outbreaks: The determination of whether an employer is in “outbreak” status under the Cal/OSHA COVID-19 standard hinges on the “exposed group” analysis. With a few exceptions, the “exposed group” is all employees who were in the same location as the COVID-19 case during the infectious period. The result of using a shorter infectious period in the analysis will likely generate smaller “exposed groups” and, accordingly, fewer “outbreaks.”

The CDPH’s order, and the resulting Cal/OSHA-compliance impacts, are welcome news for many employers. Stay tuned for the next chapter in the COVID-19 story, and in the interim, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Teamfor more information on this or any related topic

By Adam R. Young, James L. CurtisBrent I. ClarkBenjamin D. BriggsMark A. Lies, Jeryl L. Olson, Patrick D. Joyce, A. Scott HeckerMelissa A. Ortega, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. DOL and U.S. EPA have published their 2024 increases to civil penalties.

We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. The agencies have now finalized the 2023 inflation adjustments, which increase the penalties.

Under the 2023 rule, the new maximum OSHA civil penalties will be:

 2023 Penalties2024 Penalties
Other than Serious Violations:$15,625$16,131
Serious Violations:$15,625$16,131
Repeat Violations:$156,259$161,323
Willful Violations:$156,259$161,323
Failure to Abate (Per Day):$15,625$16,131

The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2024, for violations occurring after July 15, 2023.

Readers familiar with EPA’s penalty structure know that environmental statutes typically set out a “per day” penalty, as well as a maximum statutory penalty. However, certain statutes allow for civil judicial enforcement that does not carry a maximum statutory penalty.

While under the 2024 rule USEPA has updated penalties under all of the major environmental statues (including but not limited to the Toxic Substances Control Act, Federal Insecticide, Fungicide and Rodenticide Act, Oil Pollution Control Act, Safe Drinking Water Act),  as an example of the civil penalty increases for 2024,  the chart below shows the major increases under the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act,  and Comprehensive Environmental Response, Compensation and Liability Act:

2023 Penalties2024 Penalties
Clean Air Act                        
Daily: Maximum (per violation):
$55,808 – $117,468  
$446,456
$57,617 – $121,275  
$460,926
Clean Water Act                   
Daily: Maximum (per violation):
$25,847 – $64,618  
$323,081
$26,685 – $66,712  
$333,552
RCRA                                    Daily:$70,752 – $117,468$73,045 – $121,275
CERCLA                               Daily:
(including EPCRA)
Maximum (per violation):
$67,544

$202,635
$69,733

$209,202

EPA’s 2024 penalties are effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after January 6, 2024. EPA’s 2023 penalties remain effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after January 12, 2023 but before January 6, 2024.

DOL and EPA are required to continue to adjust maximum 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 Environmental Team.

By James L. CurtisAdam R. Young, Melissa A. Ortega, and Craig B. Simonsen

Seyfarth Synopsis: The Bureau of Labor statistics addresses the rise in worker deaths in 2022, and expected data for 2023.

This week’s announcement by the Bureau of Labor Statistics shows a 5.7 percent increase in fatal occupational injuries nationally.  African-American and Hispanic workers saw the largest increase in workplace fatalities. 

“In 2022, 5,486 workers in the U.S. lost their lives. This equates to one worker death every 96 minutes, with deaths the highest among transportation and construction workers. We also saw growth in disparities for workers of color, including Black workers, whose fatality rate increased 12.4 percent, and Hispanic workers, whose rate grew by 10.4 percent.”

Women made up only 8.1 percent of all workplace fatalities but accounted for 15.3 percent of homicides in 2022.  In terms of age group, workers aged 55 to 64 continued to have the highest number of fatalities in 2022 with 1,175 (21.4 percent of total fatalities), up from 1,140 in 2021. Transportation incidents were the highest cause of fatalities for this age group (455), followed by falls, slips, and trips (251).

OSHA has made a primary focus on falls and fall hazards in 2023, with the Directorate of Construction focusing enforcement efforts on preventing fatal falls. Nevertheless, work-related fatalities due to falls, slips, and trips increased 1.8 percent in 2022, resulting in 865 fatalities.

Given this fatality data, we anticipate OSHA agencies will continue to focus their enforcement resources on industries with fall hazards, disadvantaged demographic groups, and the risks of workplace violence.  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

Seyfarth Synopsis: Cal/OSHA’s Standards Board approved the Division’s revisions to the silica standard on an emergency basis, requiring a regulated area, PPE, and air monitoring for any workplace with a stone or tile cutting task. The regulations go into effect on December 29, 2023.

Recent stories from the LA Times have noted California occupational silicosis cases linked to small stone fabrication shops that cut natural stone (e.g. granite, marble) and “engineered” stone products (e.g. engineered quartz). Related studies and sworn testimony have linked each of the silicosis cases to workplaces that fail to use exclusively industry-standard “wet” methods to cut, grind, and polish stone. The use of outdated “dry” methods for cutting stone at small fabrication shops (like those pictured here) has been the primary source of the health hazard.

In response to a petition for an emergency temporary standard, the California Occupational Safety and Health Standards Board (OSHSB) approved for the Division to propose amendments on the existing General Industry Silica Standard on an emergency basis. Throughout the regulatory process, industry worked closely with Cal/OSHA to try to target new regulations to effectively address the airborne crystalline silica hazard.

On Thursday December 14, 2023, the Board voted unanimously to adopt the Division’s draft emergency regulations. Many industry representatives and Seyfarth Partner Adam R. Young spoke in favor of Cal/OSHA’s proposed ban on dry cutting and proposed requirement for effective wet methods for fabricating stone in the draft revised regulations. But industry objected to the draft regulations’ task-based regulatory scheme – requiring regulated areas and PPE (e.g. forced air or N100 respirators) regardless of the abatement of the hazard through effective wet methods. Industry instead advocated for a health-based approach consistent with the regulation of carcinogens through permissible exposure limits (PELs).

The onerous new requirements apply to General Industry employer with so-called High-Exposure Trigger Tasks, defined to include machining, crushing, cutting, drilling, abrading, abrasive blasting, grinding, chiseling, carving, gouging, polishing, buffing, fracturing, intentional breaking, or intentional chipping of artificial stone with .1% or more silica or natural stone with 10% or more silica. Artificial stone is broadly defined to include porcelain tile. The regulations ban all dry processes, requiring wet-cutting and wet housekeeping. Worksites that engage in those tasks are required to conduct air monitoring and perform the tasks in a regulated area (regardless of the airborne hazard in those areas). The regulated area must be cordoned off with specific signage and all workers who enter the regulated area for any reason must wear intense respirators (e.g. forced air respirators fed from outside the regulated area or N100 respirators). Employees must prohibit walking or moving equipment through dry dust and ensure frequent cleanup.  Employees much enhance their written exposure control plant with air monitoring, procedures, and training.

Beginning December 29, 2023, non-compliance with some of the emergency regulations will be designated an “imminent hazard” that can trigger an immediate Cal/OSHA inspection, Cal/OSHA citations, and even a shutdown order (called an Order Prohibiting Use).

The draft regulations have been approved by the Board and likely will be submitted today to the Office of Administrative Law (OAL). OAL will have ten calendar days to review and potentially approve, and file the new regulations with the Secretary of State.  The regulations will be law for 180 days. This will allow time for a permanent rule-making or an extension of emergency regulations.

Employers who cut stone or tile in any context are struggling to ensure that they comply with these new onerous requirements in the next ten days.  As we previously blogged federal OSHA has increased enforcement on this issue as well.

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

By Adam R. YoungJames L. CurtisMelissa A. OrtegaPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA Region V last week provided a Webinar on the Occupational Safety and Health Administration’s (“OSHA”) national emphasis program (“NEP”) to prevent workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments.

Since its announcement earlier this year, OSHA has attempted to adjust its enforcement focus to address the Nation’s growing warehousing and logistics industries. Starting July 13, 2023, federal OSHA began conducting inspections under its National Emphasis Program for Warehousing and Distribution Center Operations. NEP inspections have been moving forward steadily, including programmed and expanded complaint/injury inspections in the 27 states where federal OSHA regulates private employers.

According to OSHA, the NEP is intended “to identify and reduce or eliminate hazards during warehousing and distribution center operations, mail/postal processing and distribution centers, parcel delivery/courier services, and certain high injury rate retail establishments.” 

Under [the NEP], OSHA will conduct comprehensive safety inspections focused on hazards related to powered industrial vehicle operations, material handling and storage, walking and working surfaces, means of egress and fire protection. The program will also include inspections of retail establishments with high injury rates with a focus on storage and loading areas; however, OSHA may expand an inspection’s scope when evidence shows that violations may exist in other areas of the establishment.

The primary focus areas of the NEP are already broad, but OSHA has explicitly noted “it may expand an inspection’s scope [to] other areas of the establishment” and may open health inspections where warranted, so the bounds of OSHA’s NEP enforcement activity could expand quickly. Employers can continue to expect programmed inspections in the industry going forward.

Here is a list from OSHA’s presentation of expected areas of focus during a NEP inspection:

Here is a link to OSHA’s full presentation.

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 and Craig B. Simonsen

Seyfarth Synopsis: The State of  Michigan’s Occupational Safety and Health Administration (MIOSHA) Cannabis – State Emphasis Program (SEP) (August 28, 2023) was established to address safety and health hazards associated with the growing, harvesting, and processing of recreational cannabis (marijuana).

Marijuana is a booming business, in Michigan and nationally.  In November 2018, voters in Michigan “passed a proposal that legalized cannabis for recreational use and required the State to create a licensing system for growers, processors, and retailers.”  Since the implementation of the Michigan marijuana licensing system, the “number of growers in Michigan has swelled to over 1,000, and the state now has 228 processors and 1,040 dispensaries.”

According to a review by National Institute for Occupational Safety and Health (NIOSH), studies have found that workers in cultivation, harvesting, and processing of cannabis face dermal exposure to the “psychoactive and medicinal chemicals in cannabis, ergonomic stressors, and potential exposure to allergens and respiratory hazards through inhalation of organic dusts (such as fungi, bacteria, and endotoxins) and volatile organic compounds (VOCs) such as diacetyl and 2, 3- pentanedione.”  The exposure to organic dusts and VOCs was found in the “decarboxylation and grinding of dried cannabis material, activities that produced elevated concentrations of VOCs and endotoxins.”  On top of that, the marijuana industry presents a range of safety issues associated horticulture, manufacturing, heavy equipment, logistics, and retail.  The industry regularly engages in cash transactions, creating an increased risk of workplace violence to workers handling cash.

The MIOSHA SEP is limited in scope to the “growing, harvesting, and processing of cannabis due to the occupational safety and health hazards found at those operations.”  The emphasis program will be the legal basis for programmed MIOSHA inspections, targeting worksites related to cannabis drawn from “public sources.”  As of June 2023, MIOSHA conducted “12 enforcement inspections of cannabis facilities and found 37 violations of MIOSHA regulations.” The deficiencies encompassed “respiratory protection, personal protective equipment, chemical hazard communication, eyewash facilities, the storage and handling of flammable liquids, electrical safety, equipment guarding, recording and reporting of occupational injuries and illnesses, and a chemical overexposure to peracetic acid.”

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