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.

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 Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: In another example of OSHA’s refocus it has dropped from its home page the prominently placed listing of Worker Fatalities. 

We have blogged previously on changes to OSHA under the Trump Administration.  See for instance OSHA Schedules First “Safe + Sound Week”, OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years, and OSHA Rescinds its Union Non-Employee “Walk-Around” Rights Interpretation.

For the past several years, OSHA had maintained a running list of workers killed on the job.  Near the top of its Internet home page, the list included deaths reported to OSHA, regardless of whether any OSHA violations were associated with the fatalities.

An example of that OSHA workplace fatalities notice is shown here:

Previous Website image captured from “Wayback Machine” at https://web.archive.org/web/20170823025608/https://www.osha.gov/

While any fatality is a tragedy, OSHA’s list could be misleading.  Hence, OSHA has removed from front and center this list of workplace fatalities.  The list now, off the home page, only includes items related to OSHA inspections.

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 James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2018 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2017 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2018 inflation adjustments which will nudge the penalties even higher.  83 Fed. Reg. 7 (Jan. 2, 2018).

Under the 2018 rule, the maximum OSHA civil penalties will be:

2017 Penalties 2018 Penalties
Other than Serious violations: $12,675 $12,934
Serious violations: $12,675 $12,934
Repeat violations: $126,749 $129,336
Willful violations: $126,749 $129,336
Failure to abate (per day): $12,675 $12,934

The new OSHA penalty amounts are applicable to OSHA citations issued after January 12, 2018, 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. 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.

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

Seyfarth Synopsis:  OSHA’s has indicated in a news release that it “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.

We recently 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 is the first written indication by OSHA of a timeline by which it intends to “reconsider, revise, or remove portions” of the Rule, and may 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.