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 again been “returned” to the Senate for consideration.

Even though 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 that year forcing a restart of the whole nomination procedure.  2018 did not prove any more fruitful for this nomination.  Accordingly, Mugno has again been nominated and so is now back before the Committee on Health, Education, Labor and Pensions for another vote recommending his 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.

For reference, 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 James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2019 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2018 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2019 inflation adjustments which again nudges the penalties even higher.  84 Fed. Reg. 213 (Jan. 23, 2019).

Under the 2019 rule, the maximum OSHA civil penalties will be:

2018 Penalties

2019 Penalties
Other than Serious violations: $12,675 $13,260
Serious violations: $12,675 $13,260
Repeat violations: $126,749 $132,598
Willful violations: $126,749 $132,598
Failure to abate (per day): $12,675 $13,260

The new OSHA penalty amounts are applicable to OSHA citations issued after January 23, 2019, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

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. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  We had blogged previously that OSHA appealed an Administrative Law Judge (ALJ) ruling that severely limited OSHA’s Multi-Employer Worksite Doctrine and citation of a “controlling employer” general contractor. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. August 4, 2017).  The Fifth Circuit has now reversed the ALJ, and upheld OSHA’s Multi-Employer Worksite Doctrine.

In dramatic language, the U.S. Court of Appeals for the Fifth Circuit (governing federal law in Texas, Mississippi, and Louisiana) announced, that “thirty-seven years ago, this court, in a tort case, announced that ‘OSHA regulations protect only an employer’s own employees’.”  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. 1981).  That decision had endured despite the seismic shift brought about by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and of broader employer liability under the Act.  Acosta v Hensel Phelps Construction, No 17-60543 (5th Cir November 26, 2018).  OSHA’s Multi-Employer Worksite Doctrine enables the Agency to cite employers who are “controlling,” “exposing,” “creating,” or “correcting” safety hazards.  OSHA regularly cites general contractors as “controlling” employers with regard to hazards only faced by subcontractor employees.

In the instant appeal, the Court was asked whether OSHA has the authority, under either the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (the Act), or regulations, “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”  The Court concluded that OSHA does indeed have that authority under the Act.

Factually, an OSHA compliance officer conducted an inspection of the site and discovered three sub-contractor employees working at the base of an unprotected wall of evacuated soil.  The contractor’s and the subcontractor’s superintendents were present at the wall, with full views of the subcontractor’s employees working near the wall.  OSHA cited both contractor and the subcontractor for willfully violating 29 C.F.R. § 1926.652(a)(1) for allegedly “exposing employees to a cave-in hazard from an unprotected excavation at a construction site.”

The ALJ determined that the contractor met the requirements to be considered a “controlling employer” who had a duty under 29 U.S.C. § 651 et seq., to “act reasonably to prevent or detect and abate violations at the worksite even when the affected employees are those of another employer.”  However, because the citation arose within the jurisdiction of the Fifth Circuit, the ALJ found that “Fifth Circuit precedent foreclosed the citation” against the general contractor.  The ALJ relied on Melerine, Inc., 659 F.2d at 711, finding that “an employer at a worksite within the Fifth Circuit cannot be held in violation of the Act when the employees exposed to the hazard were employees of a different employer.”

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, 2000 WL 294514 (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.

The Court here concluded that “an agency’s interpretation of its governing statute in an administrative adjudication ‘is as much an exercise of delegated lawmaking powers as is the Secretary’s promulgation of a workplace health and safety standard… The Multi-Employer Worksite Doctrine is an agency document that provides guidance to OSHA inspectors as to when it may be appropriate to cite a particular employer.”  The Secretary did not derive any authority from the Policy in issuing the citation to Hensel Phelps; “he relied on the statute itself and engaged in adjudication on the basis of that statutory authority.”  The Court found that the Secretary’s construction of the statute as granting authority to issue citations to controlling employers is a “reasonably defensible” one.

Accordingly, OSHA’s Multi-Employer Worksite Doctrine is now fully enforceable in the Fifth Circuit.

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) or Workplace Policies and Handbooks Teams.

By Mark A. Lies, II,  Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing;  “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”

We previously blogged about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation.  OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.

  1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation

OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”  The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”

Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.

  1. OSHA Permits Consistent Post-Incident Drug Testing Policies

For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.  The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:

  • “Random drug testing”;
  • “Drug testing unrelated to the reporting of a work-related injury or illness”;
  • “Drug testing under a state workers’ compensation law”;
  • “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and
  • “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs.  Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested.  OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.

  1. OSHA Permits Safety Incentive Programs

The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs.  With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.”  The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month.  OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party.  The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.

However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting.  According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.  Employers need to undertake their choice of additional “adequate precautions,” such as:

  • “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
  • “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
  • “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace.  A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires.  The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses.  Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.

For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.

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 TeamLabor & Employment, or the Workplace Policies and Handbooks Teams.

By Mark A. Lies, IIJames L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  New Review Commission decision refines the definition of what OSHA must prove to establish a “Repeat” violation.

On September 30, 2008, OSHA issued a citation to Angelica Textile Services, Inc., a commercial laundry, alleging ten Serious and four Repeat items. Seyfarth represented the employer, Angelica Textile Services, Inc. After the parties filed cross motions for summary judgment, the Administrative Law Judge issued a decision affirming two of the Serious items and vacating the remaining twelve items, including the Repeat citations. The Secretary of Labor appealed, arguing that the judge improperly vacated two Repeat citations that alleged deficiencies of permit required confined spaces (PRCS) and lockout/tagout (LOTO) procedures.

On July 24, 2018, nearly a decade after the citations were issued, the Occupational Safety and Health Review Commission (Commission) affirmed the previously vacated citation items, but characterized and reclassified them as Serious rather than Repeat violations, and issued a single reduced penalty of $7,000. See Secretary of Labor v. Angelica Textile Services, Inc., No. 08-1774.

Most importantly, the Commission refined the definition of what OSHA must prove to establish a Repeat violation. OSHA has traditionally taken the position that all the evidence it had to show to meet the “substantial similarity” standard was merely that the same type of equipment, process or regulation that was involved in the current violation was also involved in a prior final citation which served as the basis for the Repeat violation. In the Angelica decision, the Commission clarified that a showing of “substantial similarity” can be rebutted with a showing of “disparate conditions and hazards associated with these violations of the same standard.”

The decision also refined what defenses an employer may have to a Repeat citation based on the abatement actions it took to abate the earlier violation. Applied to the facts of the case, the Commission noted that the prior PRCS citation identified “critical deficiencies” in the employer’s compliance program.  However, in response to the prior citation, the Company “actively sought out and eliminated similar hazards,” including developing a PRCS program specific to the condition cited.

The majority in Angelica noted that the Company’s prior abatement efforts also resulted in reduced citations in the current matter.  Similarly, the Commission noted that the prior LOTO citation to the Company had identified a “comprehensive failure of compliance.”  However, the present case involved procedures established in the interim, as well as surveys completed for machines that the Company had undertaken in response to the prior violations.  Rather than lacking the previous comprehensive procedures as was the case in the earlier citations, there were only two discrete deficiencies in the employer’s current program.

Significantly, the Commission also remarked in a footnote that the Secretary had accepted the Company’s prior abatement method, thus giving no basis for OSHA to conclude that the Company knew that its interim safety precautions and corrective actions were not compliant.

After comparing the employer’s attempts at compliance with the prior and subsequent citations, the Commission reasoned that, while the prior citations had been based on a complete failure to comply, the current citations reflected only minimal deficiencies. In other words, “[the Company] took affirmative steps to achieve compliance and avoid similar violations in the future.”  Because of these interim abatement actions, the Commission concluded that there was no basis for a Repeat citation.

In light of the Angelica decision, it appears that OSHA’s burden of proof has been measurably increased to establish a Repeat violation and it will be more difficult for OSHA to prove Repeat citations against employers. Following the acceptance of a citation, employers should work with a team well versed in the concepts espoused in the Angelica decision so that it can take the appropriate steps to establish that it acted in good faith and took effective and documented action to correct the violation. Employers should “actively [seek] out and eliminate[] similar hazards,” or “[take] affirmative steps to achieve compliance and avoid similar violations in the future.”  As there is no mechanical way to avoid a Repeat citation, and the corrective actions taken will depend on the factual circumstances surrounding the citation, employers should consult experienced counsel for guidance on what constitutes abatement of the citation and how to properly document such actions. Most importantly, beyond the concern of legal liability, if an employer takes the interim actions endorsed by the Angelica decision, it will measurably enhance the safety and health of its workplace.

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.

On August 23, 2018, our Atlanta office is hosting a hot-topic event in which our panelists will lead an interactive discussion on the trends we are seeing in OSHA regulation a year into the Trump administration. There is no cost to attend this program, but registration is required.

Employers’ expectations for a more business-friendly Agency have not materialized, as the still-leaderless Agency proceeds ahead with aggressive enforcement. The program will address timely regulatory and compliance issues for employers, including:

  • Update on OSHA under the Trump Administration and Scott Mugno’s Nomination to Head OSHA
  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Thursday, August 23, 2018
3:00 p.m. – 3:30 p.m. Registration
3:30 p.m. – 5:00 p.m. Program
5:00 p.m. – 5:30 p.m. Cocktail Reception

Seyfarth Shaw LLP
1075 Peachtree Street, NE
Suite 2500
Atlanta, GA 30309-3962

This seminar is approved for 1.5 hours of CLE credits CA, IL, NJ and NY. CLE Credit is pending for GA. Credit can be applied for, but not guaranteed for all other jurisdictions.

Please click here to register. 

By James L. CurtisPatrick D. Joyce, and  Craig B. Simonsen

Seyfarth Synopsis: OSHA reminded specific employers on Monday that the deadline for electronically submitting their 2017 Form 300A data to OSHA is July 1, 2018.

Electronic submission of 2017 Form 300A data is due by July 1, 2018 for establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries. Form 300As should be submitted using OSHA’s Injury Tracking Application (ITA).

Each establishment’s Form 300A for 2018 will be due March 2, 2019. We will continue to monitor OSHA’s activities relating to this rule. OSHA has indicated that it will be reviewing the rule and will be issuing future guidance or revisions.

Employers operating facilities in state plan states should check with their local state plan office to confirm each individual state’s e-filing requirements. For example, Kentucky OSHA requires e-filing using Federal OSHA’s ITA, while the State of  Washington has indicated that employers with facilities in Washington State are not required to e-file on Federal OSHA’s ITA.

We have previously blogged concerning OSHA’s contentious electronic reporting rules.  See All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting 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.

Seyfarth Synopsis: This morning our panel from Seyfarth’s Workplace Safety team led a briefing on OSHA regulation and enforcement under the Trump Administration. 

One year into the Trump Administration, employers’ expectations for a more business-friendly Agency have not yet materialized, as the still-leaderless Agency proceeds ahead with widespread aggressive enforcement. The panel addressed recent developments and trends our Group has seen from federal OSHA, including the stalled nomination of Scott Mugno to head the Agency.  The panel also discussed:

  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Finally, the panel discussed practical tips to guide employers in this new regulatory environment.

If you were able to attend, thank you very much.  If not, see you next time. Either way, here are our presentation slides. Feel free to contact us if you have any questions on the materials.

For more information on Seyfarth’s Workplace Safety and Environmental team, see our recent blog posts and articles.

Seyfarth Synopsis: On Tuesday, May 15, 2018, a panel from Seyfarth’s Workplace Safety team will lead an interactive Breakfast Briefing on OSHA regulation and enforcement. 

One year into the Trump Administration, employers’ expectations for a more business-friendly Agency have not yet materialized, as the still-leaderless Agency proceeds ahead with widespread aggressive enforcement. The panel will address the new developments and trends we have seen from federal OSHA, including the stalled nomination of Scott Mugno to head the Agency.  The panel will also discuss:

  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Finally, the panel will discuss best practices for managing an OSHA inspection, with practical tips to guide employers in this new regulatory environment.  To register for the Breakfast Briefing, follow the link below.

Tuesday, May 15, 2018
8:00 a.m. – 8:30 a.m. Breakfast & Registration
8:30 a.m. – 10:00 a.m. Program

Seyfarth Shaw LLP
233 S Wacker Dr., Suite 8000
Chicago, IL, 60605

Register Here

For more information on Seyfarth’s Workplace Safety and Environmental team, see our recent blog posts and articles.

By Jeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.

On January 25, 2018, Associate Attorney General Rachel Brand released an Department memo “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (“Brand Memo”), directed to the Heads of Civil Litigating Components within the USDOJ directing that the Department no longer prosecute cases based solely on violations of various agencies’ “guidance documents”.

The USDOJ, (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated regulatory requirements, not agency guidance documents or policies. The practice of agencies, such as EPA, pursuing enforcement actions against companies who have failed to comply with “guidance” has long been a concern of the regulated community and their defense counsel; we frequently challenge and object to EPA’s efforts to enforce “guidance” that has not gone through public notice ad comment rulemaking. It is a relief that the USDOJ will no longer be a party to such enforcement cases.

The Brand Memo is a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (“Guidance Policy” or “Sessions Memo”), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

The Brand Memo states that “…consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.” “Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking.”

Under the USDOJ’s new policy, USDOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.”The Brand Memo also indicates that “the Guidance Policy . . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the USDOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applies only to future affirmative civil enforcement actions brought by the Department, as well as, “wherever practicable,” those matters pending as of January 25, 2018, we see the Guidance Policy and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

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