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

Seyfarth Synopsis: According to several states that have sued the Occupational Safety and Health Administration in Federal Court, the Agency did not provide sufficient justification to rollback the electronic reporting rule for large employers.  Complaint, State of New Jersey, et al., v. Acosta, No. 19-cv-621 (D. DC March 6, 2019).

The complaint, filed by the States of New Jersey, Illinois, Maryland, Massachusetts, Minnesota, and New York, claims that OSHA’s “illegal and unjustified attempt to rollback its requirements for the public reporting of workplace injuries and illnesses—information that allows states to better design enforcement, outreach, and training programs to improve workplace safety, and that enables employees to protect themselves from risks at work.”

The states allege standing to make the claim based on their “quasi-sovereign interest in the health and safety of all their residents.”  The states also argue that “in making this about-face, OSHA failed to provide the sufficient justification that the Administrative Procedure Act (APA) demands.”  The states claim that “OSHA must ‘provide a reasoned explanation’ for its action, which includes ‘show[ing] that there are good reasons for the new policy’,” citing to Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).  “That burden matters especially where the ‘new policy rests upon factual findings that contradict those which underlay its prior policy’.”  Id. at 2126 (quoting Fox Tele. Stations, Inc., 556 U.S. at 515-16).

We have blogged frequently on OSHA’s electronic reporting rule.  See e.g., On And On We Go – Coalition Groups Sue DOL for the Rollback Rule, OSHA Issues New Rule that Companies are Not Required to Submit OSHA 300 and 301 Forms Electronically, California Enacts New Record-Keeping Mandates in Response to Changing Federal Program, Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting Requirements, 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.

In this latest action, the six states ask for declaratory judgment that the new final rule is unlawful and a re-imposition of all electronic reporting requirements.

We will continue to watch and report on the ongoing machinations over these rules.

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

By Brent I. Clark, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  On our last day, we heard remarks from a panel of ALJs who discussed the discovery process and trial best practices, a panel on safety programs in the 21st Century, and, a panel on updates on the construction industry.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.  Today is the last day of the meeting.

To open the final day, a panel consisting of the Honorable ALJs Phillips, Joys, and Augustine provided tips and tricks regarding pre-trial, trial, and post-trial conduct.  Especially relevant was Judge Phillips’ discussion of discovery best practices and recent ALJ discovery orders, including orders sanctioning parties for using boilerplate objections in their answers to discovery requests.  Judge Augustine discussed effective trial techniques that will provide the Judge with the best picture of the facts of the case.  Judge Augustine also indicated that effective cross examination and thoughtful use of information learned during depositions have the highest impact in his courtroom.  Judge Joys provided helpful tips regarding opening statements and effective written submissions, including pre- and post-trial briefing and proper citation to previous ALJ decisions.  All ALJs discussed the effectiveness of motions in limine and other pretrial motions.

The next panel discussed three significant recent decisions from the OSH Review commission that do not involve the general duty clause: Hensel Phelps Construction, Mar-Jac Poultry, and Triumph Construction.  Panelists included representatives from OSHA, management, and health and safety non-profits.  Hensel Phelps, a 5th Circuit decision issued in November 2018, overturned an OSH Review Commission decision regarding application of OSHA’s “multi-employer worksite” doctrine, which had relied upon a long-standing 1981 5th Circuit decision, Melerine v. Avondale Shipyards, limiting OSH Act liability to “an employer’s own employees.”  Ultimately, the Court vacated Melerine, resulting in application of the multi-employer worksite doctrine in 5th Circuit jurisdictions.  The panel had widely varying views as to the overall impact of the Hensel Phelps decision, but there was consensus that this decision now brought the 5th Circuit in line with other Circuits that have addressed the multi-employer worksite doctrine.

Mar-Jac Poultry, an unpublished case decided in the 11th Circuit, places limitations on OSHA’s ability to expand its inspections beyond the initial reason for conducting the inspection.  Notably, the Court differentiated between a “hazard” and a “violation,” stating that the existence of a hazard does not establish the requisite probable cause of a violation necessary to obtain an administrative warrant that would allow OSHA to expand its inspection.  Again, the panel was divided as to the ultimate impact of the decision, with management applauding the decision’s discussion that the existence of an injury or hazard does not necessarily mean there is an associated violation of the OSH Act.

Triumph Construction, a February 2018 2nd Circuit decision, implicates OSHA’s ability to issue “repeat” violations to employers and the amount of time of the repeat “look-back” period.  Triumph had been cited for a repeat violation based upon a citation that had become a final order approximately five years prior.  At the time of the underlying citation in 2014, the 2009 version of OSHA’s Field Operations Manual (“FOM”) was still effective, and provided for a 3-year look-back period for repeat citations.  Triumph argued that the 3-year look-back period in the 2009 FOM was the limit and OSHA’s use of a 5-year look-back period was unfair.  Ultimately, the Court found that the OSH Act does not contain time limits on how far OSHA can look back to establish a repeat violation and also that the FOM does not create legal rights or duties.  The panel agreed that the impact of this decision is limited and fact-specific and simply applies the OSH Act as written.

Finally, the panel discussed several current cases that are expected to have a significant impact on recordkeeping, reporting, and agency deference.  Several cases challenging OSHA’s 2016 recordkeeping e-reporting rule are expected to be decided in 2019, including a case out of the Northern District of Texas and one out of the Western District of Oklahoma.  In addition, several current cases challenge OSHA’s decision to remove the requirement for employers to e-file their OSHA 300 Logs and 301, therefore limiting e-filings for all employers with greater than 20 employees to the OSHA 300A yearly summary.  The panel also discussed the United States Supreme Court’s grant of certiorari in Kisor v. Wilkie, which raises as its sole issue whether the Court should overturn the concept of “Auer” deference, which provides deference to an agency’s informal interpretation of its own regulation.  Many on the panel believed that the Court will in fact overturn or significantly limit Auer due to Justices Gorsuch and Kavanaugh having previously indicated a desire to remove or limit deference to agency interpretations.

Next, a panel discussed 21st Century updates to traditional health and safety programs.  The panel consisted of representatives from industry, safety consulting, labor, and OSHA.  OSHA reminded employers that it partners with states to provide consultation assistance to small businesses, providing assistance to employers covering approximately 1 million employees in 2018.  The labor representative discussed the use of metrics to prepare and implement effective safety programs.  A representative from industry discussed digital tools that they use to track leading and lagging indicators, allowing for real-time adjustments to safety programs and policies.  Use of these metrics has significantly reduced injuries and illnesses throughout their industry.

Finally, a panel of construction experts including OSHA’s acting director of the Directorate of Construction, an attorney representing management, and an attorney representing labor discussed updates in OSHA’s construction-related regulations, as well as trends in construction enforcement.  OSHA identified three major emphasis areas for 2019 including crane operator certification, trenching and excavation, and the continued implementation of the construction respirable silica rule.  Over 52% of OSHA inspections are conducted at construction worksites, the majority of them involving multi-employer worksites.  Fatalities from falls and trenching failures accounted for nearly 1/3 of construction-related fatalities in 2017.  Four of the top five regulations cited in 2018 involved working at heights or fall protection.  OSHA also reminded employers that the Subpart CC Crane Operator Certification requirements become effective in just over one month, on April 15, 2019.  The attorneys for management and labor disagreed as to the effectiveness of OSHA’s national emphasis programs (“NEP”), including its trench safety NEP.  Management expressed concern at uneven enforcement of trenching regulations while labor expressed approval for the requirements set forth by the NEP.  Finally, the panel discussed implementation of the construction crystalline silica regulation, challenges associated with compliance and enforcement, and lessons learned from the earlier-implemented general industry silica standard.

It has been a great conference, with many significant panels discussing relevant issues and concerns of OSHA, industry, and employees.  We look forward to another year of assisting you and are excited for what is to come.

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 Brent I. Clark, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  Today we heard remarks from a panel who discussed the general duty clause at length, a panel on safety concerns during emergency response, a panel that discussed the interplay between workers’ compensation, reportability, and recordability, and a panel on issues arising from OSHA inspections.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Continuing on the themes from yesterday’s conference meetings, a panel discussed at length OSHA’s aggressive enforcement of workplace safety issues through the general duty clause as well as recent OSH Review Commission case law questioning OSHA’s broad interpretation of its powers under the general duty clause.

The panel, which consisted of a management, union, and government representatives, emphasized the ideological differences between employers and the government when it comes to 5(a)(1) citations.  Panelists who represented the government and unions insisted that the purpose of the general duty clause is to fill the gaps when a specific standard does not exist.  The management panel, however, stressed that the general duty clause should be used to address unique, specific hazards.  More importantly, the general duty clause should not be used as a replacement for rulemaking of specific standards.

Speaking on recent general duty cases that concerned heat-illness, workplace violence, and grease fires at a restaurant, the panelists discussed common themes.  The management representative stressed that employers must be provided with appropriate notice of what OSHA may consider to be proper abatement.  Specifically, if an abatement method may be inadequate, OSHA should notify the employer of the fact before an accident, rather than afterwards.  The panelist reminded the audience, which included OSHA representatives and Review Commission judges, that the purpose of the general duty clause is to prevent an injury from occurring, rather than punish an employer after an accident occurs.  As such, when one aberrational situation occurs, the employer should not be punished for an abatement method that was otherwise effective in practice.

The government and union representatives strongly disagreed, noting their stated position that an accident does not have to occur for a violation to exist.  Further, when employers implement abatement methods to address issues such as heat-illness or workplace violence, this is evidence that the employer has notice of a hazard and needs to make sure its abatement efforts are effective.

Ultimately, the panel was a microcosm of the attitudes held by employers and the government across the country, and reflected the ongoing ideological differences in interpreting and enforcing the general duty clause between management and OSHA.

We also heard from a panel on the role of safety in emergency response, which included the division counsel from Puerto Rico OSHA, who discussed his personal experience with Hurricanes Irma and Maria.  The Puerto Rican panelist noted that when disaster strikes, it becomes increasingly difficult to reestablish working conditions without creating some workplace risk.  OSHA representatives noted that in such situations it would shift its focus from enforcing the act to providing technical assistance, but retained the right to enforce the act if necessary.

A panel discussed the interplay between recording injuries on OSHA 300 forms, reporting injuries to OSHA, and workers’ compensation.  The panel discussed the intricacies of the OSHA regulations and workers’ compensation laws, including differing definitions and requirements,  and the close analysis required to determine what is required of employers when these three areas collide.  Given the facts of an injury, a universal approach in these three areas may not be appropriate, but rather a thorough review of each regulation is necessary to ensure employers meet their obligations.

Finally, a panel discussed current issues related to conducting inspections including OSHA’s ability to obtain administrative warrants, whether non-employee representatives can be authorized to participate in a walk around inspection, whether non-management employees have the ability to request representation during an interview, and OSHA’s subpoena power and the scope of attorney representation of the subpoenaed employee during the interview. Finally, the panel discussed OSHA’s recent use of drones during inspections, including interaction with FAA regulations and the safety of people on the ground.

More to come from the conference tomorrow…

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 Brent I. Clark, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  Today we heard remarks from the Solicitor of Labor, OSHA’s Acting Director of the Directorate of Enforcement, and the Occupational Safety and Health Review Commission.  Each panel reiterated the theme of increased OSHA enforcement in the upcoming year, including aggressive enforcement of the general duty clause.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

A common theme among all panelists today is that OSHA is aggressively enforcing workplace safety issues through the general duty clause, including workplace violence issues and heat-related illness.

The Honorable Kate S. O’Scannlain, Solicitor of Labor for the Department of Labor, offered remarks about the Solicitor’s policies and enforcement aims related to the OSH Act.  Ms. O’Scannlain stressed the importance of protecting workers’ rights and ensuring that enforcement resources were used intelligently and strategically.  To that end, Ms. O’Scannlain identified three areas her office would be focused on.  First, the Solicitor’s office will focus on trenching / excavation hazards.  By September, 2019, the agency seeks to increase the number of trench hazards that have been abated.  Second, the Solicitor remains focused on enforcing fall protection of employees.  The Solicitor referenced a recent favorable decision for the government, in which the 8th circuit upheld a $500,000 fine against an employer.  Finally, the Solicitor discussed workplace violence hazards, including the decision two days ago by the Occupational Safety and Health Review Commission in Integra Health Management, Inc. upholding a general duty clause violation of the act when an employer failed to address a workplace violence issue.

We also heard from Patrick Kapust, OSHA’s Acting Director of the Directorate of Enforcement.  Mr. Kapust discussed the new beryllium and silica standards.  Mr. Kapust also spoke on the walking working surfaces standard and OSHA’s effort to draft a compliance directive to aid both employers and compliance staff in interpreting the standard.  The panel further discussed OSHA’s efforts to increase the issuance of citations for employers who do not timely report severe injuries such as hospitalization, amputation, or loss of an eye.  Mr. Kapust reminded the attendees that OSHA’s penalties increased again on January 23, 2019, as a Serious citation is now $13,260 and a Willful/Repeat is $132,598.

In addition, we heard from a panel on whistleblower and retaliation investigations which informed the audience that whistleblower complaints increased by over 25% in 2018.  We also heard from the Occupational Safety and Health Review Commission, where Chairman Heather MacDougall announced her retirement, effective in a few weeks.  The Review Commission panel continued the theme of OSHA increased use of the general duty clause by discussing recent cases that touched upon workplace violence and heat-related illness.  Importantly, the Review Commission indicated that OSHA’s overbroad application of the general duty clause may not be proper, an issue our team has successfully argued in many cases.  The Review Commission also analyzed the recent Angelica Textile Services decision, a case our office successfully litigated before the Review Commission and which made it substantially harder for OSHA to meet its burden in showing a “repeat” violation.

More to come from the conference tomorrow…

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 Rebecca A. Davis and Jeryl L. Olson

Seyfarth Synopsis:  Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL).  This is the largest number of deletions in one year since 2005. 

However, the EPA continues to add sites to the NPL, and added five new sites in the Fall of 2018.  Two sites are particularly noteworthy as they were added solely due to a subsurface intrusion pathway.  Subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated groundwater zone and/or the surficial groundwater into overlying structures.  Vapor intrusion is the most common form of subsurface intrusion, but the intrusion also may be in the form of gas or liquid.

The HRS, the principal mechanism EPA uses to determine whether a site should be placed on the NPL, traditionally ranked sites under four pathways:  groundwater migration, surface water migration, soil exposure and air migration.  In other words, subsurface intrusion historically was not a separate basis for scoring purposes on the HRS, but was instead addressed as part of the remediation of a Superfund site.  On January 9, 2017, the rule to add subsurface intrusion as a component to the HRS was published in the Federal Register, and the final rule went into effect on May 22, 2017.  See our previous blog about it, EPA Eases Path to Superfund Listing: Vapor Intrusion Component Added to the Hazardous Ranking System.

The first of the two sites listed under the new HRS guidance, the Rockwell International Wheel & Trim site in Mississippi, was a former wheel cover and chrome-plating facility.  Although other traditional pathways were present, including soil and groundwater impacts from volatile organic compounds (VOCs), the EPA elected to score the site under the HRS only on the subsurface intrusion component.  The EPA determined that there was likely a complete pathway from the subsurface source of VOCs to workers in buildings overlying the soil and groundwater impacts.  This assumption was confirmed by indoor air sampling that revealed the presence of trichloroethylene and dichloroethylene in air in the buildings.

The second site, the Delfasco Forge site in Grand Prairie, Texas, is the location of a former munitions and forger operation that operated from the 1950s to 1998.  The site is contaminated with trichloroethylene (TCE) both in soil, and groundwater.  In 2008, EPA conducted a vapor intrusion investigation that included the sampling of sub-slabs, crawl spaces and indoor air of 16 homes and two commercial structures.  Ten of the 18 structures had measurable levels of TCE in indoor air.

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 Sam Witton, Jane Hall, Paul Cutrone, and Sarah Goodhew

Seyfarth Synopsis: It is widely proclaimed that we are in the midst of the “Fourth Industrial Revolution” (4IR). The leaps and bounds that are being made daily in information technology and biotechnology signal the end of homo sapiens or provide liberating freedom for the working masses, depending on which commentator’s view you believe.

For us, the daily lived experience of the 4IR in working and home life is not yet as cataclysmic nor as emancipating as the commentators proclaim. However, the ever growing use of technological, timesaving solutions, the ‘gigification’ of the workforce, the blurring of the lines between work and home and the rising issue of workplace psychological health all signal shifting global trends.

Regional Trends that are Responding to the 4IR

The 4IR is shaping workplace laws. Working across regions we see examples that point to trends in laws responding to the new world of work arrangements such as non-traditional labour models. As an example, recent amendments to the Occupational Safety and Health Act in Korea have expanded the scope of statutory protections to “persons providing labour” (as opposed to “employees”) and introduce an obligation on franchisors to take preventive measures for workplace accidents suffered by franchisees and their workers.

Positive regional trends can be seen in how workers are protected by existing laws. The latest amendment to the Law of the People’s Republic of China on the Prevention and Control of Occupational Diseases on 4 November 2017 and recent cases indicate a trend in Beijing and Shanghai that the enforcement of health and safety at work is in focus, more comprehensive and increasingly strict.

Debates on How we Face the Future

Australian Governments are grappling with the challenge of laws that are responsive to the 4IR. A key recommendation from the 2018 review of the model Work Health and Safety Laws is that Safe Work Australia develop criteria to continuously assess new and emerging business models, industries and hazards to identify if there is a need for legislative change, new model WHS Regulations or model Codes.

Laws continue to be tested against the explosion in reporting of workplace sexual harassment. A number of unions are calling for WHS laws to specifically include sexual harassment as a risk that must be eliminated or minimised by duty holders. Regulators are encouraging anonymous whistleblowing to facilitate investigation.

The battle lines have also been drawn for the Federal election later in the year, with the Australian Labor Party committing to a wide suite of industrial and safety changes including a commitment to support national industrial manslaughter laws – a position supported by the 2018 review of the model laws.

Rising Issue of Workplace Psychological Health – a Focus for Regulators

In Victoria, recent presentations from WorkSafe have detailed plans for its inspectors to be trained to assess workplace psychological health. We can expect more enforcement action in this space.

Exploring ‘Megatrends’ for the Future will Help us Prepare for Change

It is more important than ever to understand the risks associated with the constant change in workplaces. The Workplace Safety Futures report commissioned by Safe Work Australia explores the six megatrends predicted to re-shape workplace health and safety – including the gig economy, the blurred lines of work and home life and workplace psychological health. It’s a highly recommended read.

By Brent I. Clark, Benjamin D. Briggs,  Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  A construction contractor twice orders, via text message, his employees to work on a roof, and both times the employees fall through.  The contractor later testifies in a deposition that he did not ask them to work on the roof.  Lesson No. 1: don’t lie when you’re providing sworn testimony, especially when there exists discoverable evidence to the contrary.  Lesson No. 2: be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.

Between May and July 2018, New Jersey-based RSR Home Construction was cited twice by OSHA after two incidents on the same job in which workers fell from a roof and were seriously injured.  As part of its investigation into the safety incidents, OSHA took the sworn deposition of the company’s owner, Robert Riley.

According to the criminal complaint filed against RSR earlier this month in Federal District Court in New Jersey, OSHA specifically questioned Riley at his deposition about whether he had directed a construction worker, at any time, to perform repairs on the roof, or to direct others to perform repairs to the roof.  United States v. Riley, No. 19-MJ-3515 (D.N.J. Feb. 14, 2019).  Riley testified, unequivocally, that that he had not.

OSHA, however, discovered that Riley had in fact sent text messages to employees on both occasions directing them or others to perform repairs on the roof.  Riley now faces a perjury charge in federal court where, if convicted, he faces a potential penalty of five years in a prison and a $250,000 fine.

For employers, this case provides yet another reminder that it is never a good idea to lie to government inspectors, especially when providing sworn testimony.  This also demonstrates the importance of being properly prepared and familiar with all relevant facts before providing testimony or statements during an OSHA investigation.  In this age of electronic media, emails, video, and text messages, data is simply too readily available to those parties needing it to prove the truth.

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 James L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: With the seemingly random workplace violence that continues unabated, many employers are again asking how best to protect their employees.

We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?”  In addition, we blogged about an “Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know.”  These blogs illustrate that there are programs that may be developed, with some assistance from models and safety professionals.  Active planning ahead of any such instance may lessen the damages and increase safety and early responses.

OSHA defines “workplace violence” as an act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.  It ranges from threats and verbal abuse to physical assaults and even homicide.  It can involve employees, clients, customers, and visitors.  In addition, OSHA asserts that nearly two million American workers report being victims of workplace violence each year.  According to OSHA: “unfortunately, many more cases go unreported.”

The Bureau of Labor Statistics indicates that the number of workplace homicides in 2015 “accounted for approximately 9 percent of all fatal occupational injuries in 2015. There were 417 workplace homicides in 2015, a slight increase from 2014 but down 12 percent from the 475 reported in 2012.”  “Eighty-five percent of workplace homicide victims in 2015 were men. Of the 417 workplace homicides in 2015, 356 were homicides to men and 61 were homicides to women. Homicides represented 18 percent of fatal occupational injuries to women in 2015 compared with 8 percent of fatal occupational injuries to men.”

Notably for retailers and transportation providers, “first-line supervisors of retail sales workers (40 fatalities), cashiers (35 fatalities), police and sheriff’s patrol officers (34 fatalities), and taxi drivers (27 fatalities) were the occupations with the greatest number of homicides in 2015..”

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries (CFOI) reported “16,890 workers in the private industry experienced trauma from nonfatal workplace violence in 2016. These incidents required days away from work.”

In 2016, “of those victims who died from workplace violence, 82% were male, 69% were aged 25 to 54, 31% were working in a retail establishment, 23% were performing protective service activities.”

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In DHS Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %).

The DHS materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

Additionally, OSHA indicates that “in most workplaces where risk factors can be identified,” the risk of assault can be prevented or minimized if employers take appropriate precautions. It suggests that one of the best protections is a zero-tolerance policy toward workplace violence.  The policy, OSHA advises, should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel. By assessing worksites, employers can identify methods for reducing the likelihood of incidents occurring. “OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces.”

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

By James L. Curtis, Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Jordan Barab, former Deputy Assistant Secretary of OSHA, announced on his blog this week that he would “start full time work at the Education and Labor Committee in the House of Representatives” to provide OSHA oversight.

Barab, a regular Trump Administration critic, stated that “the opportunity to help organize oversight hearings and investigations to ensure that OSHA, MSHA and NIOSH are executing the missions that Congress gave them and work on new legislation that will better protect workers is too much to resist in what we all hope and expect to be the last two years of the Trump administration.  Now that we actually have our hands on some of the tools of power for the first time in two years, I’m anxious to stop just writing and tweeting about what’s wrong with this country and this administration, and start doing something about it again.”

Barab had previously been the Deputy Assistant Secretary at OSHA from 2009 through January 2017, during the Obama Administration.  He was a proponent of the prior OSHA practice of heavy handed enforcement that viewed employers as adversaries rather than as partners in protecting employees.

Employers should view this as an effort by the new Democratic led House of Representatives to promote the proclivities of unionized labor as well as aggressive and expansive enforcement.

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

By Brent I. Clark, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Fifth Circuit rules on Title VII liability concerning workplace violence in a healthcare setting involving third parties.  Gardner v. CLC of Pascagoula, No. 17-60072 (5th Cir. February 6, 2019).

A recent decision from the U.S. Court of Appeals for the Fifth Circuit highlights the risks posed to employers in the healthcare and social assistance industries by uncorrected or unaddressed customer-on-employee violence.

Fifth Circuit Reverses Lower Court’s Summary Judgment Ruling

Gardner involves a nurse who alleged that an assisted living facility allowed a hostile work environment to be created by nonemployees by not preventing a resident’s repetitive harassment.  The plaintiff, a Certified Nursing Assistant, “often worked with patients who were either physically combative or sexually aggressive.”

The Court explains that under 29 C.F.R. § 1604.11(e)—one of Title VII’s sexual harassment provisions— “an employer may . . . be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

Gardner’s experiences with one patient at the CLC facility rose to a new, dangerous level.  According to the Court, “[the patient] J.S. was an elderly resident who lived at Plaza between 2006 and 2014. He had a reputation for groping female employees and becoming physically aggressive when reprimanded.  J.S. had been diagnosed with a variety of physical and mental illnesses including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.”  J.S. had a long history of violent and sexual behavior toward both patients and staff at the facility.

Gardner refused to care for J.S. again due to the continued harassment, and asked to be reassigned. Her request was denied.  She ended up going to the emergency room for injuries she sustained at the hands of J.S., and did not return to work for three months.  Shortly after her return, she was fired.

In reversing the district court, which had concluded that a hostile workplace did not exist, the Fifth Circuit held that the “evidence of persistent and often physical harassment by J.S. is enough to allow a jury to decide whether a reasonable caregiver on the receiving end of the harassment would have viewed it as sufficiently severe or pervasive even considering the medical condition of the harasser.”

Customer-on-Employee Violence in the OSHA Context

Federal OSHA currently enforces workplace violence via the General Duty Clause, under which OSHA requires employers to take affirmative steps to protect their employees. Significantly, and unsurprisingly, OSHA has also considered whether to commence rulemaking proceedings on a new standard for preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients and clients. Prevention of Workplace Violence in Healthcare and Social Assistance, 81 Fed. Reg. 88147 (December 7, 2016).

Additionally, note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and are required, as of April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.

Workplace violence may affect numerous healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected by the proposed rulemaking include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel, and emergency medical care personnel.

According to OSHA, workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. In 2014 data from the Bureau of Labor Statistics’ (BLS) Survey of Occupational Injuries and Illnesses (SOII), workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall. Individual portions of the healthcare sector have much higher rates. Psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients.

State and Federal OSHA has clearly been keeping an eye on this industry and these incident rates. For instance, in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers,” in December 2015 we noted that “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting,” in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA,” and in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers.” Also, this action follows on “CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders.”

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 or the Workplace Counseling & Solutions Team.