By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIIlana R. Morady, and Patrick D. Joyce,

Seyfarth Synopsis:  As most employers probably know by now, OSHA’s revised recordkeeping rule requires certain employers to electronically file injury and illness data with OSHA. Originally the reporting deadline was July 1, 2017. OSHA has again extended the deadline, this time to December 15, 2017.

During the previous extension period, it appeared that OSHA might be reconsidering the rule, with a possibility of modifications or a complete revocation of the rule by December 1, 2017. However with the recent extension to December 15, it appears that the rule will remain unchanged for the time being and that covered employers must report by the new deadline.

As a reminder, establishments with 250 or more employees must submit information electronically from their 2016 Form 300A by December 15, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) beginning in 2018.

Establishments with 20-249 employees operating in what OSHA deems to be “high-risk industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by the December 15, 2017 deadline. These same employers will continue to only submit information from their 300A forms in later years.

Although OSHA’s electronic reporting webpage experienced malfunctions earlier this year, the webpage now appears to be working.

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

By Jane HallPaul CutroneSam Witton, and Nick Neil

Seyfarth Synopsis:  We are aware that many of the clients we advise on U.S. workplace safety and health laws and regulations also have operations in Australia.  The below blog provides insights into recent significant developments in workplace safety and health law in Queensland.  Please feel free to contact the authors, or any of our workplace safety and health attorneys in Australia, with any questions you may have on this or any related topics.

The community was rightly outraged by the tragic loss of life in incidents at Dreamworld and Eagle Farm. The recent legislative response to those tragedies has attracted significant media attention, with laws recently rushed through Queensland parliament, introducing new offences into the Work Health and Safety Act 2011 (Qld), the Electrical Safety Act 2002(Qld) and the Recreational Water Activities Act 2011 (Qld), from 23 October 2017.

Much of the focus in the legal media and beyond has been on the headline grabbing figures of penalties of up to AUD$10m for body corporates and 20 years imprisonment for individuals – making these the toughest workplace penalties in Australia at the moment. The new offences respond to the sense of outrage, but with the attention on the penalties, there has been little pause to ask:

Are these laws an appropriate response to the tragedies?

To coin the phrase often used by lawyers, “the jury is still out”.

Looking at the introduction of the industrial manslaughter offences in the Work Health and Safety Act, we make the following observations:

  • The Act has the primary objective of protecting workers and other persons against harm to their health and safety.
  • The Act already provided for terms of imprisonment for the most serious types of offending.
  • It is not clear how the recent introduction of longer terms of imprisonment and higher penalties will help regulators prevent injury, illness and death as correctly highlighted by the Bar Association of Queensland, there has only been one prosecution of a category 1 offence (the most serious offence under the WHS Act) in Queensland so far.
  • There is no real evidence that the existing laws were ”inadequate”. We are not suggesting that a tragic loss of life in a workplace should not result in a detailed examination of the circumstances and, where there is evidence of serious offending by a duty holder, regulators ought to take enforcement action. The query is whether regulators in Queensland were unable to adequately do so prior to 23 October 2017.

Will the new offences have unintended consequences?

One serious concern amongst businesses, their workers, key stakeholders and others ought to be whether the introduction of longer terms of imprisonment and higher penalties and threats of greater enforcement will encourage business and industries to learn from failure in an open and transparent way.

The prospect of very severe (and, in particular, personal) penalties, will be an impediment to sharing valuable safety learnings in industries, at least until the legal processes have run their course. This can take up to five years in some circumstances. Will valuable lessons be lost?

This can only be detrimental to health and safety outcomes – the very opposite of what the laws seek to achieve.

We all want healthy and safe workplaces and appropriate responses to serious offending, but this should not be at the expense of an environment that encourages learning and sharing. We hope that the approach taken to the enforcement of the new offences does not create a new form of outrage caused by business and individuals justifiably exercising significant caution about sharing safety learnings with others in a timely fashion.

We raised the question in our related blog, Victorian OHS enforcement: why change the game plan when your team is on top? If the ‘end game’ is improving health and safety outcomes, are better options available?

By Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has recently published “Small Entity Compliance” Guides for the new Crystalline Silica Standard for Construction and General Industry.

OSHA recently released small entity compliance guides for both construction and general industry.  See Small Entity Compliance Guide for the Respirable Crystalline Silica Standard in Construction (OSHA 3902 – 2017), and Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for General Industry and Maritime (OSHA 3911 – 2017).

OSHA does not define what it means by “small entity” in the Guides, other than referring to helping “small businesses.”  Generally, under the Small Business Act, Public Law 85-536, as amended, a small business concern is one that is “independently owned and operated and which is not dominant in its field of operation.”

We have previously blogged about crystalline silica, such as: OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction, OSHA Proposes Silica Worker Exposure Hazards Rule, and New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries.

Crystalline silica ubiquitous in modern society. Crystalline silica is found in many naturally-occurring building materials and used in many industrial products and at construction sites. Materials such as sand, concrete, stone, and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone. Industrial sand containing crystalline silica is used in foundry work and hydraulic fracturing (fracking) operations.

While these Guides may assist employers in understanding compliance with the new rules, note that OSHA specifically states that:

This document provides guidance only, and does not alter or determine compliance responsibilities, which are laid out in OSHA standards and the Occupational Safety and Health Act. This guide does not replace the official Respirable Crystalline Silica standard [s].  The employer must refer to the standard to ensure that it is in compliance. Moreover, because interpretations and enforcement policy may change over time, for additional guidance on OSHA compliance requirements the reader should consult current administrative interpretations and [OSHRC] decisions….

Employers who work with silica must now comply with the Crystalline Silica Standard.  Due to the complexity of the regulations and requirements, we recommend you contact your occupational safety and health attorney as soon as possible to discuss a path to compliance.

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, Benjamin Briggs, James L. Curtis, Adam R. Young, Daniel Birnbaum, and Craig B. Simonsen

Seyfarth SynopsisThe White House picks Scott A. Mugno as the new Administrator of federal OSHA.

The White House announced on October 27th that it has nominated Scott A. Mugno to be the Assistant Secretary of Labor, Occupational Safety and Health.  If confirmed, Mr. Mugno will serve as the Administrator of the federal Occupational Safety and Health Administration (OSHA).  Mr. Mungo will replace Dr. David Michaels, who left the Agency on January 10, 2017.

Mr. Mugno currently serves  as the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground in Pittsburgh, Pennsylvania.  Mr. Mugno previously served at FedEx as the Managing Director, Corporate Safety, Health and Fire Protection, and as a Senior Attorney.  Prior to FedEx, Mr. Mugno was a Senior Counsel at Westinghouse Electric Corporation, and a member of the Judge Advocate General’s Corps.  Mr. Mugno is a graduate of Washburn University School of Law, and St. John’s University, Jamaica, New York.

In the past, Mr. Mugno has advocated at the United States Chamber of Commerce for the review and elimination of outdated safety regulations.  If he is confirmed, employers can anticipate that Mr. Mugno will be a strong supporter of  the Trump Administration’s anti-regulatory stance on issues such as post-accident drug testing, incentive programs, and voluntary protection programs (VPP).

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 Christopher W. Kelleher, Rashal G. Baz, James L. Curtis, and Brent I. Clark,

Seyfarth Synopsis:  On October 11, 2017, the Chicago City Council passed an ordinance that will require Chicago hotels to provide certain staff with “panic buttons” and develop enhanced anti-sexual harassment policies.

In an effort to protect hotel employees from sexual harassment and other guest-misconduct, Chicago has passed the Hotel Workers Sexual Harassment Ordinance, which requires Chicago hotels to provide employees who work alone in guest rooms or bathrooms with “a panic button or notification device” which can be used to call for help if the employee “reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence.”

According to the Ordinance, “a panic button or notification device” is a portable device designed to be used in emergency situations to summon hotel security or other appropriate hotel staff to the employee’s location.  The Ordinance does not require hotels to use a specific type of device, as long as it warns proper hotel personnel and it comes at no cost to the employee.

The Ordinance also requires hotels to develop and distribute a written policy to protect employees against sexual harassment.  Specifically, the policy must: (1) encourage employees to promptly report sexual misconduct by guests; (2) describe procedures for handling the reported misconduct; (3) instruct the complaining employee to stop work and leave the dangerous area; (4) offer the employee temporary work assignments; (5) provide the employee with paid time off to make a complaint or testify as a witness; (6) inform employees of additional protections; and (7) include an anti-retaliation provision.  The policy must be conspicuously posted in English, Spanish, and Polish.

The Ordinance authorizes fines of $250 – $500 for each day a violation continues, and two or more violations within any 12-month period may result in license suspension or revocation.  Hotels will have until July 1, 2018 to implement “panic button” systems, but must comply with the Ordinance’s other provisions (i.e. develop and distribute an updated anti-sexual harassment policy) within 60 days of the law’s publication, which we can expect any day now.

Notably, the Occupational Safety and Health Administration (OSHA) uses the General Duty Clause to enforce workplace issues against employers.  OSHA can rely on industry practices to support a claim that a “recognized hazard” exists.  It is possible that OSHA will use the new Ordinance and employer compliance in Chicago as a basis to require that other hotel employers should also have “panic buttons.”

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

By Patrick D. Joyce and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced a thirty day phase-in for enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153.  The new rule will be fully effective by Monday, October 23, 2017.

OSHA’s new crystalline silica rule is wide-reaching and, for that reason, the rulemaking has been contentious. We have blogged about crystalline silica many times: OSHA Proposes Silica Worker Exposure Hazards Rule, OSHA Extends the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule, New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries, and Senators Ask OSHA to Consider the Fracking Industry Economy and to More Fully Extend the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule.

Crystalline silica is a staple of modern society. Crystalline silica is a common mineral found in many naturally occurring materials and used in many industrial products and at construction sites. Materials such as sand, concrete, stone, and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone. Industrial sand containing crystalline silica is also used in certain foundry work and hydraulic fracturing (fracking) operations.

OSHA estimates that 2.3 million workers are potentially exposed to crystalline silica on the job, and that nearly 676,000 workplaces will be affected by the crystalline silica rule, including in construction and in general industry and maritime. The rule was expected to result in annual costs of $1,524 for the average workplace covered by the rule. The total cost of compliance with the rule was estimated at “just over $1 billion” (per year).

In an effort to remedy some of the difficulties that have arisen to come into compliance with the construction portion of the new rule, the Agency had previously decided to delay enforcement of the standard from June 23, 2017, until September 23, 2017.

Now that September 23 has passed, the Agency issued a standard interpretation letter for the Launch of Enforcement of the Respirable Crystalline Silica in Construction Standard, 29 CFR § 1926.1153.  The new rule will be fully effective on Monday, October 23, 2017.  Specifically the interpretation states that:

During the first 30 days of enforcement, OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard. OSHA will render compliance assistance and outreach to assure that covered employers are fully and properly complying with its requirements. Given the novelty of the Table 1 approach, OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table. OSHA will assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance.

If, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.

For employers in these industries, it is important to note that this phase in period provides little additional time to come into compliance with the new rule. Due to the complexity of the rule, we recommend you contact your occupational safety and health attorney as soon as possible to discuss a path to compliance.

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 and Craig B. Simonsen

Seyfarth Synopsis:  A recent active shooter incident at an international airport illustrates both how quickly an incident may be over, yet how ancillary impacts take much longer to resolve. While the shooter was apprehended in less than two minutes, the international airport was shut down for most of a full day, impacting over 500 employees and 10,000 customers, and 20,000 personal items were lost.  The after-action report offers some lessons learned.

At the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week, William G. Thompson, IV, the Occupational Safety & Health Manager and Safety Management System Administrator at Broward County Aviation Department, including the Fort Lauderdale-Hollywood International Airport (Airport), presented the findings from the January 6, 2017 active shooter incident at the Airport.  Fort Lauderdale-Hollywood International Airport Active Shooter Incident and Post-Event Response January 6, 2017 After-Action Report (August 15, 2017) (Report or Findings).  Thompson was at the Airport that day, watched the events unfold, and cooperated in the resolution and the preparation of the Report.

The Report indicates that “on January 6, 2017, a lone gunman intentionally discharged a firearm at the Fort Lauderdale-Hollywood International Airport killing five and wounding six innocent bystanders.  Approximately 90 minutes after the initial incident, speculation of additional firearms discharged in other areas within [the Airport] caused panic and led to a chaotic self-evacuation of persons throughout the airport.”  The Report states that it was developed in accordance with the U.S. Department of Homeland Security’s Homeland Security Exercise and Evaluation Program.  Specifically, the Report analyzes the response, the emergency and operational coordination, and the facility recovery and post event activities.

Factually, the Report shows that the actual shooting event, in the Terminal 2 baggage area,  lasted less than 80 seconds and ended when the “perpetrator ran out of ammunition, laid down on the ground, and surrendered to law enforcement officers at the scene.”  Of the eleven people who were shot, six (6) were wounded, and five (5) were killed.  Approximately 40 others were injured in the panic during the initial shooting event (First Incident). Terminals 1, 3, and 4 remained operational at this time.

The Second Incident started at approximately an hour and a half later, when radio communications indicated unsubstantiated reports of additional shots fired in Terminal 1, and one of the parking garages. As a result, the “response among passengers, tenants, and airport employees triggered uncontrolled and unmanaged self-evacuation of personnel, many of whom ran into secured areas and onto active aprons. Some received minor injuries during the self-evacuation.”  Because of the breach of restricted areas on the airfield during the self-evacuation, and the ongoing investigation of the actual crime scene in Terminal 2, law enforcement began sweeping and clearing each of the four (4) terminals at the Airport to ensure that all areas were clear of any threats and to re-establish secure areas.

Because of the incurrence into secure zones, the FAA issued a ground stop notice closing the Airport to all but emergency flights.  Subsequently, airport operations were officially terminated and all airport roadways were closed to incoming traffic.  Law enforcement continued clearing the rest of the airport until approximately 8:30 PM, over seven hours later. The airport remained closed for the remainder of the day, but reopened to commercial flights early the following day.

This incident provides a good reference for business to consider in developing their own corporate active shooter programs.  For instance, in this case responding airport employees were initially denied access to areas to which access was required to support response operations.  In addition, while the actual shooting incident was over in ninety seconds, during the subsequent response approximately 500 airport employees were interrupted in their jobs, and 10,000 passengers were bused to a nearby facility for food and shelter, and to assist them in connecting to other means of transportation “As result of the chaos that ensued following the shooting, more than 20,000 personal items were left unclaimed at the airport.”  The active shooter incident response must be planned for as well as the incident itself.

The Report provides “Lessons Learned,” including several points to support preparedness within the aviation sector and among aviation stakeholders.  Many of their recommendations are well placed in any industry:

  • Ongoing periodic incident command system training and exercises, support capabilities-based planning, coordination with airport stakeholders, and development of competencies among airport personnel to support critical incident response.
  • Airport emergency plans should be updated and reviewed at least annually or when changes in resources, personnel, or threats occur.
  • Airport emergency plans and/or companion response plans should address a full range of hazards and threats, identify a concept of operations in an incident command system context, and address all areas of the airport including public areas and auxiliary properties, such as rental car facilities.
  • Building relationships with external response partners through advanced planning, training and exercises is vital to support a common understanding of roles, responsibilities, resources, facility design and layout, and communication procedures under single or unified command conditions.
  • Coordination between airports and jurisdictional (city/county/state) emergency management agencies supports emergency response operations through effective communications, resourcing and resource management.
  • Airports should consider developing a written description of airport operations and airport physical layout specifically for external emergency responders who may respond to airport emergencies. Periodic tours for external emergency responders are also recommended to support an effective understanding of resources, evacuation plans, and other potential response needs.
  • Exercises conducted at airports should include active shooter scenarios as well as other locally-relevant hazard and threat scenarios identified local emergency management agencies).

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 Mark A. Lies, II, Adam R. YoungJames L. Curtis, and Benjamin D. Briggs

Seyfarth Synopsis:  It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.

Please see the entire Alert, After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey, for the full article and recommendations.

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

Seyfarth Synopsis: As expected, OSHA has appealed an ALJ ruling that severely limits OSHA’s “controlling employer” enforcement policy. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. 8/4/17).

This case involves an unprotected excavation at a construction site that both parties agreed was in in violation of OSHA’s trenching standards.  The Respondent was the general contractor on the construction project with overall control and responsibility for the worksite.  The Respondent also had management employees on site who were present at the excavation who “could have easily” prevented the subcontractor’s employees from working in the unprotected excavation but did not do so.  However, the Respondent did not have any of its own employees who were exposed to the hazardous excavation.

OSHA cited Respondent as a “controlling employer” under OSHA’s multi-employer policy and longstanding Occupational Safety and Health Review Commission precedent that has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

Nonetheless, while the Commission has upheld “controlling employer” citations based on exposure to another employer’s employees, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  Accordingly, rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).  Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,”  and vacated the citation.

OSHA is appealing the ALJ’s decision to the 5th Circuit hoping that the 5th Circuit will reverse its 1981 holding in Melerine v. Avondale Shipyards, Inc.   This case represents a serious threat to OSHA’s multi-employer policy.  If upheld by the 5th Circuit, OSHA’s “controlling employer” policy may be in jeopardy. We will keep our readers apprised as this case develops.

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 and Craig B. Simonsen

Seyfarth Synopsis: New OSHA guidance documents may provide employers in these industries with another tool for carefully measuring compliance with the PSM standards.

OSHA recently released guidance documents on Process Safety Management for Explosives and Pyrotechnics Manufacturing (PSM Explosive Pyrotechnics Guidance) (OSHA 3912-03 2017), and the Process Safety Management for Storage Facilities (PSM Storage Guidance) (OSHA 3909-03 2017).

The PSM Explosive Pyrotechnics Guidance focuses on aspects of the standard particularly relevant to explosives and pyrotechnic manufacturers, found in OSHA’s standard on Explosives and Blasting Agents, 29 CFR 1910.109.  The PSM Storage Guidance focuses on aspects of the PSM standard particularly relevant to storage facilities generally.

OSHA notes that while all elements of the PSM standard apply to all PSM-covered pyrotechnics manufacturing or storage facilities, the following elements are most relevant to hazards associated with these facilities:

  • Employee Participation
  • Process Safety Information (PSI)
  • Process Hazard Analysis (PHA)
  • Operating Procedures
  • Training
  • Mechanical Integrity (MI)
  • Emergency Planning and Response

OSHA emphasizes that as to explosives, these PSM elements complement the “cardinal principle for explosive safety: expose the minimum number of people to the smallest quantity of explosives for the shortest period consistent with the operation being conducted.”

These Guidance documents provide employers with an outline to compliance with the applicable PSM standards that provide another review tool to achieve compliance.  Employers in these industries are encouraged to review these Guidance documents carefully to measure compliance with the standard, as you may be sure that OSHA’s inspector’s, if or when they visit, will do so.

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.