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.

By Brent I. Clark, James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has recently issued a Frequently Asked Questions for General Industry for the Respirable Crystalline Silica Standard. 

We had noted previously in the blog that most of the provisions of the Respirable Crystalline Silica Standard for General Industry and Maritime, 29 CFR § 1910.1053, became enforceable on June 23, 2018. The standard established a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and additional ancillary requirements.

OSHA has now published a FAQs document that provides discussion on the Scope and Application (29 C.F.R. § 1910.1053(a)), Definitions (29 C.F.R. § 1910.1053(b)), Exposure Assessments (29 C.F.R. § 1910.1053(d)), Regulated Areas (29 C.F.R. § 1910.1053(e)), Methods of Compliance (29 C.F.R. § 1910.1053(f)), Written Exposure Control Plan (29 C.F.R. § 1910.1053(f)(2)), Housekeeping (29 C.F.R. § 1910.1053(h)), Medical Surveillance (29 C.F.R. § 1910.1053(i)), Communication of Respirable Crystalline Silica Hazards to Employees (29 C.F.R. § 1910.1053(j)), Recordkeeping (29 C.F.R. § 1910.1053(k)), and Temporary Employees.

Details relating to the enactment and regulation under the standard have been captured in our previous blogs on the topic.  See for instance OSHA Enforcement Memo for Crystalline Silica Standard in General Industry and Maritime, OSHA Publishes Crystalline Silica Standards Rule Fact Sheets for Construction, Circuit Court Finds OSHA Failed to Adequately Explain the Crystalline Silica Standards Rule, and OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards.

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

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

Seyfarth Synopsis:  OSHA has just been sued for removing the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

A coalition of groups including the Public Citizen’s Health Research Group (PCHRG), American Public Health Association, and the Council of State and Territorial Epidemiologists filed a complaint against the U.S. Department of Labor and its Occupational Safety and Health Administration.  PCHRG v Acosta, No. 19-CV-166, (D. D.C. January 25, 2019).  The lawsuit challenges OSHA’s decision to amend a 2016 rule on the “Tracking of Workplace Injuries and Illnesses” to remove the requirement that businesses with 250 or more workers electronically submit logs of each on-the-job injury or illness their workers sustain, although these employers must still keep such records on site.

We had recently blogged about OSHA’s just issued final rule (the Rollback Rule) to remove the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 and OSHA Form 301 to OSHA each year.  Under the now amended rules these establishments will still be required to electronically submit information from OSHA Form 300A. 84 Fed. Reg. 380 (January 25, 2019).

The PCHRG suit claims that the Rollback Rule should be declared “unlawful and set aside because OSHA has failed to provide a reasoned explanation for its change in position, failed to adequately consider comments submitted in opposition to the change, and relied on considerations that have no sound basis in law.”  According to the lawsuit, “OSHA’s action, findings, and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

Under the current rules, the deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

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

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

Seyfarth Synopsis:  OSHA has just issued its final rule that removes the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). 84 Fed. Reg. 380 (January 25, 2019).

In May 2016, under the Obama Administration, the Department of Labor issued a final rule that would have required companies with 250 or more employees to electronically submit their OSHA 300, 301 and 300A forms annually. The information, which would contain summaries of employee names and injuries, would be maintained on government computer systems, but could be requested by third parties such as labor unions, special interest groups, or even competing companies who have an interest in such information.

In light of the legitimate worker privacy concerns, OSHA, under the Trump Administration, in July 2018, issued a proposed rule that would narrow the electronic disclosure rule.  However, some special interest groups, comprised of public-health advocacy groups, viewed the information contained in employers’ OSHA forms as a valuable source of workplace health data.  As such, these groups previously sued to reinstate the final rule that required employers to submit OSHA 300 and 301 forms electronically.  A federal court recently denied that request.

The court in Pub. Citizen Health Research Grp. v Acosta, No. 1:18-cv-01729, 2018 BL 459531 (D.D.C. Dec. 12, 2018), reasoned that the interest groups would have to show “irreparable harm” by not being able to access the OSHA forms to succeed in their lawsuit.  They were unable to show “irreparable harm” because OSHA has issued a notice of proposed rulemaking that narrows the electronic disclosure rule, but could change their mind and ultimately require employers to submit the forms electronically.  As such, the court reasoned, such groups could potentially obtain such information in the future.  Further, the court stated that OSHA’s delay in accepting the OSHA forms does not prevent the special interest groups from conducting the same type of workplace safety research independently.  Because they are not “irreparably” harmed by OSHA’s actions, the Court denied the relief they sought.

Revised Electronic Reporting Requirement

OSHA’s January 25, 2019 final rule limits the electronic submission requirement to the 300A summary for establishments who are required to keep OSHA records and with 250 or more employees.  Establishments with 20 or more (but fewer than 250) employees in certain specified industries (in Appendix A to the regulation) must also submit form 300As.

OSHA believes that this final rule will better protect personally identifiable information or data that may be re-identified with a particular worker by removing the requirement for employers with 250 of more employees to submit their information from Forms 300 and 301 electronically. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

We have blogged frequently on OSHA’s electronic reporting rule.  See 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.

The deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

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

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: Due to Senate Rules, the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health, has now again been “returned” to the Senate for consideration.

Even though President Trump’s nomination of Scott Mugno to head OSHA was approved by Senate Committee on December 13, 2017, but it was not put to a full senate vote by the end of that year forcing a restart of the whole nomination procedure.  2018 did not prove any more fruitful for this nomination.  Accordingly, Mugno has again been nominated and so is now back before the Committee on Health, Education, Labor and Pensions for another vote recommending his appointment proceed to a full Senate vote.  No new date for a vote is currently set which will continue to delay the new administration’s safety and health policies.

For reference, a copy of Mugno’s December 5, 2017, written statement before the Senate Committee, is available for review.

We will continue to monitor the status of this nomination.

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, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2019 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2018 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2019 inflation adjustments which again nudges the penalties even higher.  84 Fed. Reg. 213 (Jan. 23, 2019).

Under the 2019 rule, the maximum OSHA civil penalties will be:

2018 Penalties

 2019 Penalties
Other than Serious violations: $12,675 $13,260
Serious violations: $12,675 $13,260
Repeat violations: $126,749 $132,598
Willful violations: $126,749 $132,598
Failure to abate (per day): $12,675 $13,260

The new OSHA penalty amounts are applicable to OSHA citations issued after January 23, 2019, whose associated violations occurred within the six month statute of limitations.

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

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

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

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”

We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.  Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..”  The new section was effective in December 2018.

Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.

The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”  The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.”  Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

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

By Frederick T. Smith and Adam R. Young

Seyfarth Synopsis:  On January 10, 2019 Seyfarth Shaw LLP’s Labor & Employment and Workplace Safety and Health Teams will present a webinar on OSHA’s New Standard Interpretation clarifying the requirements on workplace drug testing.

In 2016, federal OSHA called into question many common workplace drug testing policies that contained post-accident testing provisions, characterizing them as a form of unlawful retaliation. Now, however, a recent OSHA Standard Interpretation has clarified the final rule and expressly permitted a range of drug testing policies and practices.

During this webinar we will discuss OSHA’s clarified position and various drug testing laws and provide practical advice for employers with regard to:

  • Post-accident/incident drug testing;
  • Random drug testing; and
  • Drug testing required by federal DOT agencies

The OSHA Standard Interpretation also abruptly reversed course on safety incentive programs, which we will also review.  As time allows, we will also provide a brief update on recreational and medical marijuana laws and related trends.

While there is no cost to attend, registration is required.  If you have any questions, please contact Cassie Peterson at clpeterson@seyfarth.com and reference this event.

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

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Corps) have recently proposed a “clear, understandable, and implementable definition of ‘waters of the United States’ [(WOTUS)] that clarifies federal authority under the Clean Water Act.”

Concerning the new draft proposed rule, Acting Administrator Andrew Wheeler tweeted out that “our redefinition of the Waters of the US proposal would replace the Obama 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners certainty so they can manage their natural resources & grow local economies.”  84 Fed. Reg. 4154 (February 14, 2019).  The EPA noted that unlike the Obama administration’s 2015 definition of WOTUS, the new proposal contains a “straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.”

This proposal, the Agencies assert, is the second step in the two-step process to review and revise the definition of WOTUS consistent with President Trump’s February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

The proposed rule is intended to provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not.  The practical effect of the proposal is to remove from Federal authority “waters” that are not directly adjacent to a river, stream or lake that is traditionally understood as under the jurisdiction of the CWA.  The proposal rejects the “substantial nexus” approach that resulted from Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S. 715 (2006).  As a result, many wetlands or ephemeral streams, although hydrologically connected to a traditional CWA-regulated water, would no longer be regulated.

Under the proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.  The proposal also details what are not WOTUS, such as “features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.”

Here is an Agency graphical depiction of the rule provisions:

EPA Twitter image post, December 12, 2018.

The Agencies had received written pre-proposal recommendations and received more than 6,000 recommendations that were considered in developing the proposal.  Public comments on the proposal will be accepted for 60 days after publication in the Federal Register.  EPA and the Corps intend to also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

Our prior blogs provide more detail regarding the definition of WOTUS.  See for instance EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?.

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.