Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Rancho Mirage, California. The meeting includes representatives from management, labor, and safety professionals, some who previously worked in government.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Rancho Mirage, California. On Thursday, March 6, the conference focused on current hot topics, discovery issues during litigation, jurisdictional issues, and ergonomic compliance.

Day two kicked off with a panel discussion on current hot topics related to workplace hazards, rulemaking, and Executive Orders. The panel also took a deep dive into the current state of the proposed federal heat regulation.

The discussion began with recent nominations and Executive Orders, including the current regulatory freeze pending review. This directive instructs agencies to halt the proposal or issuance of any new rules until they can be reviewed and approved by a department or agency head appointed or designated by the President. As noted in our blog post yesterday, the reasonable expectation of this administration is that far less rulemaking will occur. The recent Executive Order reinforces this expectation, and, with OSHRC not being a notable priority, it is anticipated that OSHA’s and MSHA’s rulemaking may face setbacks. One interesting and important rule in the spotlight is OSHA’s heat regulation. Notably, OSHA’s National Emphasis Program was set to expire next month, April 2025, but has been extended for an additional year. This extension comes as questions still arise about the future of the current proposed rule.

Regarding the proposed heat regulation itself, many California employers and practitioners have compared the federal draft standard’s requirements to Cal/OSHA’s mandate for Injury and Illness Prevention Programs (IIPP). As many have observed, citations based on missing elements in IIPPs are the number one cited violation by Cal/OSHA. The federal standard’s requirements may also likely lead to frequent citations. Moreover, the federal draft standard mandates employee consultation. This, in conjunction with the walkaround rule, is a ripe area for interference from labor. As it stands, little guidance has been provided on how employers can satisfy the consultation prong of the proposed standard. Lastly, the proposed requirement of “heat safety coordinators” is likely to place a significant burden on employers, especially smaller companies, as the rule does not clarify whether a coordinator can perform other jobs or must solely fulfill the coordinator role. This may necessitate further hiring to ensure compliance with the rule.

This leaves us and many others likely wondering, “What’s next?” Currently, informal public hearings will commence on June 16, 2025, with additional days as needed. This includes and requires a Notice of Intent to Appear to be submitted by May 5, 2025, and if testimony will exceed 10 minutes, commentators must provide written testimony plus any documents to be used by May 23, 2025. Once the hearing has concluded, employers and practitioners can still submit post-hearing written comments and legal briefs. We will be keeping an eye on this proposed regulation and continue to provide updates as the rulemaking process continues.

After the first panel concluded detailing what lies ahead for federal heat regulation, a separate panel took the stage to address discovery in OSHA matters. A common theme observed by the panel was OSHA’s use of subpoenas. From a government perspective, OSHA’s increased use of subpoenas is designed to quickly obtain relevant documents related to inspections, even for matters that may not appear complex at first glance. While the increased use of subpoenas may become a new standard procedure, it does not seem that OSHA is taking an adversarial approach. The emphasis appears to be on expeditiously gathering information for a swift resolution.

Another notable discovery mechanism discussed was shadowing and videotaping practices and procedures. While the panel noted significant benefits, such as creating testimony of adherence and displaying proper safety procedures, there were also concerns. For example, employers would need to ensure that all safety measures implemented for their employees are also provided to OSHA representatives engaging in shadowing and videotaping (e.g., wearing a hardhat or PPE, watching safety videos prior to entry, etc.). Additionally, the panel noted that shadowing and videotaping could make employees nervous, potentially affecting their usual work environment during these activities.  In a lighthearted moment during this discussion, our group lead, Brent Clark, reconnected with a panelist and his former advisee, former Seyfarth attorney Margaret Sewell, across the conference room.

We also attended a breakout session on who to contact when reporting a workplace safety issue, focusing on jurisdictional issues for employers across various industries, including railways, airspace, and nonemployee injuries. This session highlighted key reporting procedures and timing issues, as well as notable gray areas for employers and practitioners. For example, OSHA applies in rail offices, maintenance shops, and warehouses, but not on-track activities, which fall under the jurisdiction of the Federal Railroad Administration (FRA). Thus, certain questions need to be addressed to determine jurisdiction for proper reporting, such as, “Was the worker engaged in rail operations?” This is crucial as agencies may not fully understand another’s regulatory scope. This may require working closely with an agency like OSHA to ensure it understands how the FRA’s regulatory scheme works and how jurisdiction should be handled.

Similarly, there is a gray area between the Federal Aviation Administration (FAA) and OSHA. While it is understood that accidents in an airport, such as a slip and fall in the terminal or a lockout/tagout issue with baggage machinery, fall under OSHA, a major question is whether the activity constitutes in-flight working conditions. FAA safety rules preempt OSHA for in-flight working conditions, but determining when in-flight working conditions begin can be challenging. This panel discussion served as an important reminder to fully assess workplace injuries and issues to ensure proper reporting procedures are followed, avoiding jurisdictional and timeliness issues.

In a separate breakout session, another panel focused on federal and state changes in the construction industry. The construction-related breakout session discussed unique and upcoming construction-specific regulations in federal OSHA and OSHA state-plans. After a brief discussion of strategies for dealing with the patchwork of construction-related regulations in state-plans—for example, California’s fall protection regulations differ from federal OSHA—a panelist presented the perspective of plaintiff’s counsel with respect to using Cal/OSHA inspection documentation, witnesses, and citations in a personal injury wrongful injury or wrongful death lawsuit.

The second day concluded with a panel discussion on industry-specific ergonomic compliance, including logistics, hospitality, and healthcare. As many are aware, there is currently no national OSHA standard on ergonomics, only the general duty clause. The panel examined state plans that have implemented ergonomic standards to show how certain states have adopted such rules and how these rules may be on the horizon in other states and even at the federal level.

The panel focused on and examined Washington state’s ergonomics legislation, which allows the state plan to implement and conduct rulemaking for one industry each year. Washington’s process for identifying industries to target first was based on the highest injury rates, which for Washington is baggage handlers in the airline industry. A new rule for baggage handlers is anticipated in 2026, with warehouses following the next year. Despite Washington beginning with the airline industry, panelist Elliot Furst, Senior Counsel, Attorney General of Washington Labor and Industries Division, Seattle, WA, noted that the general principles and definitions section should be the same for all future ergonomics rules, irrespective of industry or injury. This suggests that the first set of rules will have ample carryover effects into other industries likely to be subjected to ergonomic rules. If other states follow this rulemaking process, employers in all industries should pay close attention to the first industry targeted and provide comments to preserve their industry-specific interests.

Of significant note, the panel discussed a Washington Industrial Safety and Health Act case in which the Board vacated all four citations, stating that the Department had failed to demonstrate that the hazard was present in any cited work process under the general duty clause, as it relates to ergonomics. The belief is that this matter will eventually reach the Washington Supreme Court, potentially involving a deference issue as discussed in yesterday’s blog post. This case exemplifies the burden of proof required in a general duty clause ergonomics case, further emphasizing the importance and value of rule making in litigation.

With ergonomic regulations either in place or on the horizon, best practices recommend that employers adopt proactive approaches to ergonomics. This includes ongoing training, early reporting and assessment of ergonomics-related injuries, and continuous revisions and improvements tailored to specific industries or work activities. With day two now complete, we look forward to the final day of the conference tomorrow and will provide another update upon the conference’s conclusion.