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Mark A. Lies II

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Seyfarth Synopsis: Employers often fail to appreciate the ramifications of industrial hygiene data and medical records. Even non-detect records must be maintained for 30+ years and provided to employees or representatives upon request.

OSHA’s Access to Employee Exposure and Medical Records standard, 29 CFR § 1910.1020, is one of the most frequently misunderstood — and quietly enforced — provisions in…

Continue Reading Employee Exposure Records and Medical Records: Avoiding OSHA Citations and Defending Against Future Workers’ Compensation, Tort, and ADA Claims

Seyfarth Synopsis: In MFA Enterprises, Inc. v. OSHRC, No. 24-3107 (8th Cir. 2025), the Eighth Circuit Court of Appeals vacated OSHA citations related to hazards faced by employees working on top of rail cars, finding these hazards outside of OSHA’s statutory jurisdiction.

The Federal Railroad Administration (“FRA”) and federal Occupational Safety and Health Administration (“OSHA”) traditionally split jurisdiction over working…

Continue Reading OSHA Cannot Issue Citations Relating to Employee Work on Rail Cars, Eighth Circuit Says

Employers with sophisticated safety programs implement overarching Safety and Health Management Systems (“SHMS”, also called Injury and Illness Prevention Plans and Accident Prevention Plans) to ensure that they properly assess hazards, select appropriate safety controls, evaluate safety performance, and engage employees. Federal OSHA recommends an SHMS and routinely demands the development of an SHMS to settle OSHA cases involving serious…

Continue Reading Minimizing OSHA Liabilities Through Psychological Safety

Introduction

OSHA duty officers around the country routinely field complaints from employees and labor unions alleging workplaces are understaffed and unsafe. Unions often dispute staffing levels, complaining that employers have insufficient bargaining unit members and insufficient members with seniority. Individual complainants allege that they are left to work alone, have no backup in case of emergency, or are at enhanced…

Continue Reading Safe Staffing Levels? OSHA and Legal Liabilities

By Mark A. Lies, II, Brent I. Clark, and Craig B. Simonsen

The D.C. Circuit Court of Appeals recently found, in AKM LLC v. Secretary of Labor, — F.3d —-, 2012 WL 1142273 (DC Cir., April 06, 2012), that where the Occupational Safety and Health Administration (OSHA) had issued certain recordkeeping citations and penalties for alleged errors…

Continue Reading DC Circuit Overturns OSHA’s Interpretation of Statute of Limitations and Vacates Recordkeeping Citations

By Mark A. Lies, II, Brent I. Clark, James L. Curtis and Craig B. Simonsen

In 1994, then Secretary of Labor, Robert Reich, personally served Dayton Tire (Dayton) with a citation alleging over one hundred willful violations of the Occupational Safety and Health Act (OSH Act). Dayton contested the citation, and by 1997, an appeal was before the…

Continue Reading Court Of Appeals Overturns Numerous Willful OSHA Citations And Clearly Reminds OSHA And The OSHA Review Commission That Willful Citations Are Hard To Prove

By Mark A. Lies, II and James L. Curtis

In this recent case the Occupational Safety and Health Review Commission (OSHRC) found that the Secretary had not established employee exposure because, although the cited standard applied to the electrical adaptor at issue, “grounding is not necessarily required for all equipment that could be plugged into it.” The Occupational Safety and…

Continue Reading Occupational Safety and Health Review Commission Reaffirms that OSHA Must Prove Employee was Exposed to a Hazard

By Mark A. Lies, II and Meagan Newman

The 10th Circuit Court of Appeals recently issued a decision that effectively and measurably lowers OSHA’s burden of proof to establish an OSHA violation to “what a reasonably prudent employer would do.” Compass Environmental, Inc. v. Occupational Safety and Health Commission; Department of Labor, No. 10-9541 (Dec. 19, 2011). The decision…
Continue Reading Court Lowers Burden of Proof for OSHA

By Mark A. Lies II and Elizabeth Leifel Ash

On August 17, 2009, three journeymen electricians from M. C. Dean (Dean), an outside contractor, were servicing electrical installations at a warehouse owned by Ryder Transportation Services (Ryder).  One of the journeymen electricians fell through a skylight on the warehouse roof and suffered fatal injuries.  Following this accident, the Occupational Safety and…

Continue Reading “Am I Management?” New OSHA Case Blurs Lines Between Employees And Supervisors During Inspections

By Mark A. Lies II and Elizabeth Leifel Ash

Under the Obama Administration, many federal agencies, including the Occupational Safety and Health Administration (OSHA) and the U.S. Environmental Protection Agency (EPA) have redoubled their efforts to enforce existing laws and regulations.  OSHA and EPA, in particular, have seen significant increases in their inspection and enforcement budgets, including the hiring of…

Continue Reading Environmental And Workplace Safety Audits: Creating And Preserving Legal Privileges