By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency’s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment.  It is seeking public comments.

Marijuana/Cannabis Industry Rulemaking

The advisory meeting on the DOSH Marijuana/Cannabis Industry Rulemaking was to “consider … whether specific requirements are needed to address exposure to second-hand marijuana smoke by employees at facilities where on-site consumption of marijuana is permitted under B&P Code section 26200(d), and whether specific requirements are needed to address the potential risks of combustion, inhalation, armed robberies, or repetitive strain injuries.” Public commenting is open. The advisory committee must present its finding and recommendations to the Standards Board by October 1, 2018, at which point the Board render a decision regarding whether to adopt the marijuana/cannabis standards.

Heat Illness Prevention in Indoor Places of Employment

The advisory meeting on the DOSH Heat Illness Prevention in Indoor Places of Employment was to “develop a proposed regulation for minimizing heat-related illness among workers in indoor places of employment.”  At the meeting, the public had an opportunity to provide input on a revised discussion draft developed in consideration of the comments received on a previous discussion draft. A side-by-side comparison table is provided along with options for an Amended Section 3395 (Option A) or Creating Standalone Indoor Standard (Option B).

The Cal/OSHA Advisory Committees are currently accepting comments on both of these topics.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held an advisory meeting on the Agency’s draft rules for Workplace Violence Prevention in General Industry.  It is seeking public comments.

The meeting was to seek input on the new draft proposal to address workplace violence in general industry. If adopted, California would become the first state to issue general industry workplace violence rules. Currently, Cal/OSHA can only regulate workplace violence hazards through its “general duty clause” which provides that employers have a general duty to keep their workplaces safe from recognized hazards.

The December 4, 2017 draft proposed rules defines “workplace violence” as “any act of violence or threat of violence that occurs at the work site.”  Specifically under the proposal workplace violence includes:

  1. The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury.
  2. An incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.
  3. Four types of violence:

Type 1 violence means workplace violence committed by a person who has no legitimate business at the work site, and includes violent acts by anyone who enters the workplace with the intent to commit a crime.

Type 2 violence means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.

Type 3 violence means workplace violence against an employee by a present or former employee, supervisor, or manager.

Type 4 violence means workplace violence committed in the workplace by someone who does not work there, but has or is known to have had a personal relationship with an employee.

The proposal would require covered employers to develop a Workplace Violence Prevention Plan that includes procedures for:

  1. Obtain the active involvement of employees and their representatives in developing and implementing the Plan, including their participation in identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents.
  2. Methods the employer will use to coordinate implementation of the Plan with other employers whose employees work in same workplace, where applicable.
  3. Effective procedures for the employer to accept and respond to reports of workplace violence, including Type 3 violence, and to prohibit retaliation against an employee who makes such a report.
  4. Procedures to develop and provide the training.
  5. Procedures to identify and evaluate workplace violence hazards.
  6. Procedures to correct workplace violence hazards in a timely manner.
  7. Procedures for post-injury response and investigation.

The Cal/OSHA Advisory Committee is currently accepting comments on the topic.

Note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and will be required, by April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. Henderson

Seyfarth Synopsis:  This past week, the Cal/OSHA Standards Board approved a new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.”

This new regulation–“Hotel Housekeeping Musculoskeletal Injury Prevention”–is intended to address a workplace hazard confronted by housekeepers, namely, a “musculoskeletal injury,” which is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.” The regulation was petitioned for by the labor union UNITE HERE and contains several union-friendly provisions. Before it can take effect, the regulation must pass the review and approval of the Office of Administrative Law to assure compliance with certain procedural rules. Once approved, the regulation should take effect in the next few months.

Currently, most California employers (including hotels) are required to have a written Injury and Illness Prevention Plan, which must include provisions related to health and safety training, identification and abatement of workplace hazards, and procedures for reporting unsafe working conditions. The new regulation imposes requirements for hotels above and beyond an IIPP:

  • Hotel employers must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  • The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  • Within three months of the effective date of the regulation, hotels must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  • The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  • Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

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

Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities.  The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.

By industry or workplace, BLS found that work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 40 percent of all industries.  Workplace violence and other injuries by persons or animals increased 23 percent, becoming the “second-most common work related fatal event in 2016.” For more information about workplace violence we have frequently blogged on the topic.  See for instance, Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know, OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence, Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers.

In addition, exposure to harmful substances or environments rose 22 percent.  “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since Census of Fatal Occupational Injuries (CFOI) began reporting data in 1992.”

Stunnningly, overdoses from the non-medical use of drugs or alcohol while on the job increased from 73 in 2011 to 217 in 2016. “Overdose fatalities have increased by at least 25 percent annually since 2012.”  Fatal injuries in the leisure and hospitality sector were up 32 percent and reached an “all-time series high in 2016.”  BLS concluded that this was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry.

Occupations with increases greater than 10 percent in the number of fatal work injuries in 2016 include:

  • Food preparation and serving related occupations (64 percent);
  • Installation, maintenance, and repair occupations (20 percent);
  • Building and grounds cleaning and maintenance occupations (14 percent); and
  • Sales and related occupations (11 percent).

Foreign-born workers made up about one-fifth of the total fatal work injuries. Thirty-seven percent of the workers were born in Mexico, followed by 19 percent from Asian countries.  Workers age 55 years and over had a higher fatality rate than other age group.

In response to the BLS Report, Loren Sweatt, Deputy Assistant Secretary for OSHA, commented that “[a]s President Trump recognized by declaring opioid abuse a Nationwide Public Health Emergency, the nation’s opioid crisis is impacting Americans every day at home and, as this data demonstrates, increasingly on the job.”  “The Department of Labor will work with public and private stakeholders to help eradicate the opioid crisis as a deadly and growing workplace issue.”

Employers in the industries identified in the CFOI Report, including oil and gas, construction, retail, mining, and others need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to ensure that company safety and health policies and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

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 James L. Curtis and Craig B. Simonsen

Seyfarth SynopsisDue to Senate Rules, the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health, has now been “returned” to the Senate for consideration.

President Trump’s nomination of Scott Mugno to head OSHA  was approved by Senate Committee on December 13, 2017, but it was not put to a full senate vote by the end of the year forcing a restart of the whole nomination procedure.  Accordingly, Mugno is back before the Committee on Health, Education and Labor and Pensions for another vote recommending that Mugno’s appointment proceed to a full Senate vote.  No new date for a vote is currently set which will continue to delay the new administration’s safety and health policies.

A copy of Mugno’s December 5, 2017, written statement before the Senate Committee is available for review.

We will continue to monitor the status of this nomination.

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. ClarkJames L. Curtis, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just released several fact sheets applicable to industries regulated under the Crystalline Silica Standards in Construction Rule.

OSHA has recently released several silica dust fact sheets, including Controlling Silica Dust in Construction – Crushing Machines Fact Sheet (OSHA FS-3935 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used During Demolition Activities Fact Sheet (OSHA FS-3936 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used for Grading and Excavating Tasks Fact Sheet (OSHA FS-3937 – 2017), and Controlling Silica Dust in Construction – Large Drivable Milling Machines (Half Lane and Larger) Fact Sheet (OSHA FS-3934 – 2017).

The fact sheets reiterate OSHA’s position that when inhaled small particles of silica can irreversibly damage the lungs. The fact sheets describe dust controls that can be used to minimize the amount of airborne dust when using crushing machines and heavy equipment, as listed in Table 1 of the Respirable Crystalline Silica Standard for Construction.  Specific engineering controls listed are “wet methods,” and “dust suppressants,” and “exhaust ventilation,” and “operator isolation” such as “enclosed cab.”

We will continue to keep readers updated as this issue progresses.

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: In a win for labor, the DC Circuit Court of Appeals orders the remand of the Crystalline Silica Standard for Construction and General Industry (Silica Rule) for OSHA to explain its decision to omit medical removal protections.

In a decision this morning, the U.S. Court of Appeals for the District of Columbia has remanded the Silica Rule to OSHA, holding that “OSHA was arbitrary and capricious in declining to require [medical removal protection] for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate COPD symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination.”  The Court remanded the Rule to OSHA to reconsider or further explain those aspects of the Rule.  North America’s Building Trades Unions v. OSHA, No. 16-1105 (December 22, 2017).

This is a win for labor that had fought to have the measures included in the new Rule.  The Court rejected other challenges to the Rule raised by business and industry groups.

We have previously blogged about crystalline silica and this rulemaking, including OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards, 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.

We will continue to keep readers updated as this issue progresses.

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. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, IIIlana R. Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA’s has indicated in a news release that it “will continue accepting 2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on December 31, 2017.”

Notably, OSHA will not take enforcement action against those who submit their reports after the December 15, 2017, deadline but before December 31, 2017, final entry date. “Starting January 1, 2018, the ITA will no longer accept the 2016 data.”

We had previously blogged on OSHA’s notice that the deadline for submitting 2016 Form 300A for establishments with 250 or more employees (or with 20-249 employees operating in what OSHA deems to be “high-risk industries”) was delayed to December 15, 2017. Also included in the notice delaying the submission deadline to December 15, 2017 was an indication that OSHA “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions” of the “Improve Tracking of Workplace Injuries and Illnesses” rule, in 2018.

This stated intent has now been formalized through the Agency’s publication of a rulemaking Agency Agenda item, RIN 1218-AD17 (December 18, 2017).  The item notes that:

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information form the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). In addition, OSHA seeks comment on the costs and benefits of adding the Employer Identification Number (EIN) to the data collection to increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match OSHA-collected data to BLS Survey of Occupational Injury and Illness (SOII) data and potentially reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS (for SOII).

This may further signal welcome relief from certain requirements strongly opposed by the employer community.

We will continue to monitor OSHA’s activities relating to this rule.

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 James L. Curtis and Craig B. Simonsen

Seyfarth SynopsisThe Senate Nominations Committee, during a December 13, 2017 meeting, approved the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health,.

Mugno will now move on to the next step, for final approval.

The Congressional website indicates that Mugno has been “placed on Senate Executive Calendar…. Subject to nominee’s commitment to respond to requests to appear and testify before any duly constituted committee of the Senate.”

We will continue to monitor the status of this nomination.

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 SynopsisThe Senate Nominations Committee has scheduled a vote on the Trump nomination, Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health.

On December 5, 2017, the Senate held a hearing on Mugno’s nomination.  Interested parties may watch the hearing video through the Senate’s website link.  The Committee is now scheduled to vote on Mugno’s nomination tomorrow, December 13, 2017.  If confirmed, Mugno will serve as the Administrator of the federal Occupational Safety and Health Administration (OSHA).  Mungo would replace Dr. David Michaels, who left the Agency last year.

Mugno was most recently the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground.  Employers are hopeful that Mugno will refocus the Agency away from David Michael’s hard emphasis on enforcement and implement measures designed to improve workplace safety through cooperative compliance programs such as the Voluntary Protection Program (NPP).

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.