By Brent I. Clark, Patrick D. Joyce, Adam R. Young, 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 some introductory remarks from the Solicitor of Labor, a panel who discussed the recent Occupational Safety and Health Review Commission (OSHRC) decisions, a panel on OSHA’s enforcement activities and goals, and a panel on issues arising at the OSHA and MSHA commission level.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Palm Springs, California. Representatives from the OSH Review Commission, the MSH Review Commission, Administrative Law Judges, OSHA, MSHA, the U.S. Department of Labor Solicitor’s Office, and OSHA state plans were present.

The morning started with comments from Kate O’Scannlain, the Solicitor of Labor. Ms. O’Scannlain started the conversation by reiterating the goal of the Solicitor’s office over the past several years: working with employers and counsel in a collaborative and cooperative manner to ensure employee safety. Ms. O’Scannlain continued by setting out the further goals of the Solicitor’s office: working fairly and transparently, understanding the critical role counsel plays in ensuring employee safety and health. Next, Ms. O’Scannlain set out OSHA’s and the Solicitor’s office goals for fiscal year 2020: a focus on enforcement of the crystalline silica standard in general industry, maritime, and construction; a continued focus on improving trenching and excavation safety; addressing companies the Solicitor’s office interprets to be “chronically refusing” to comply with OSHA regulations; and working with the healthcare industry to improve workplace violations protections for its workers as it relates to employee/patient interactions.

Next, we heard from Patrick Kapust, who recently assumed OSHA’s Directorate of Enforcement after the departure of Tom Galassi at the end of 2018. Mr. Kapust discussed OSHA’s updated inspection weighting system, which is aimed at assuring resources are allocated in the most efficient manner possible, and answered questions related to OSHA’s Severe Violator Enforcement Program (SVEP). The majority of questions from the audience related to removal from the SVEP list, which can damage an employer’s reputation and result in total black-listing in some industries. Employers asked how they can be removed from the SVEP list if they settle with OSHA in a way that ensures the employer no longer meets the criteria for inclusion in SVEP (as OSHA will not agree to explicit language removing the employer from SVEP). Mr. Kapust also reminded the audience that submission of electronic reporting data was due on March 2, 2020 and OSHA would looking to issue violations for late-submitters in mid-2020. Mr. Kapust discussed the success of OSHA’s “Serious Injury Reporting” (SIR) initiative that stemmed from the 2015 changes to OSHA’s reporting requirements. OSHA conducted a verification of 100 employers to determine if they were providing truthful and accurate on their “Rapid Response Investigation” (RRI) form, finding that employers provided accurate information in 98 out of 100 cases.

Finally, Mr. Kapust discussed the active role OSHA is taking in the current Coronavirus (COVID-19) situation, working with the Department of Health and Human Services and providing information to CDC and NIOSH. At this point, OSHA has already issued approximately 20 informal complaint letters to employers related to COVID-19 concerns. Mr. Kapust also confirmed what has always been the case: while CDC is not recommending use of surgical masks or dust masks to protect against transmission of Coronavirus, use of such masks (as long as they do not form tight seal and a negative pressure) is not covered under OSHA’s Respiratory Protection Standard (1910.134). Therefore, employers do not need to provide employees who choose to wear such masks with Appendix D.

We then heard from a panel discussing recent OSHRC decisions involving the General Duty Clause, use of Specialty Contractors, and Repeat citations. According to the panel, a recent case under OSHA’s General Duty Clause affirmed what most had suspected for a long time: that evidence of implementation of abatement makes it harder for employers to prove that there is no feasible abatement. This is the classic “do no good” situation: the employer wants to abate the hazard but does not want to provide OSHA with proof that a particular type of abatement is feasible.

The panel also discussed employer reliance on specialty contractors in construction, confirming that the hiring employer needs to make a reasonable level of inquiry into the health and safety practices of the specialty contractor to establish reasonable reliance upon the expertise of the specialty contractor. Finally, the panel discussed two recent decisions related to Repeat citations and how OSHA can prove substantial similarity and business continuity.

Finally, we heard from a panel of OSHRC and MSHRC commissioners regarding trends in occupational safety and health and mine safety and health. It was the first time all three OSHRC commissioners and all five MSHRC commissioners had spoken together on a panel at an Occupational Safety and Health Law Meeting. The commissioners offered practice tips regarding persuasive brief writing, oral arguments, and petitions for reconsideration (in MSHA).

We look forward to tomorrow’s program, which includes: professionalism and civility in OSHA/MSHA practice, a discussion on opioids in the workplace, the role of technologies in safety and health programs, an update on recent Executive Orders affecting occupational safety and health, and a panel on updates to OSHA’s Process Safety Management standard.

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.