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.