By Brent I. Clark, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, Daniel R. Birnbaum, and Melissa A. Ortega
Seyfarth Synopsis: This week we are attending the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting in San Diego, California. The meeting includes representatives from the U.S. Department of Labor, including the Occupational Safety and Health Review Commission, the Mine Safety and Health Review Commission, Administrative Law Judges, and the Solicitor’s Office, as well as management, labor, and safety attorneys and professionals.
The first speaker was Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health from the U.S. Department of Labor. Mr. Parker spent time reflecting on his first full year in his role, focusing on vulnerable workers, new enforcement tools, and OSHA’s hiring efforts. After discussing the hazards that vulnerable workers, such as undocumented workers or persons of color, face in the workforce, Mr. Parker discussed OSHA’s enforcement efforts to combat such trends. Mr. Parker discussed OSHA’s expansion of the Severe Violator Enforcement Program, updating OSHA’s instance-by-instance policy, increasing work with law enforcement officials, growing OSHA’s emphasis programs, including with heat illness, and seeking enterprise-wide enforcement.
Mr. Parker also discussed OSHA’s recent hiring trends, which includes adding approximately 400 new hires, including over 200 new Compliance Officers. Mr. Parker recognized that one out of five Compliance Officers were hired in the last year, presenting potential issues for the Agency related to a lack of investigatory experience and unfamiliarity with the OSHA regulations for these new employees. Mr. Parker also noted that for the first time in years, all of OSHA’s senior executive staff positions have been filled.
Mr. Parker concluded by speaking about OSHA’s rulemaking efforts, that cover heat illness, infectious diseases, workplace violence, PPE, recordkeeping, LOTO, and emergency response.
Seema Nanda, Solicitor of Labor at the U.S. Department of Labor, followed up and noted that the Office of the Solicitor will prioritize addressing whistleblower claims proactively, including filing temporary restraining orders or preliminary injunctions to avert allegedly unlawful retaliation. Ms. Nanda talked about using the Agency’s power to seek court orders to enforce compliance with final orders of citations. Ms. Nanda also discussed “piercing the corporate veil” to hold an individual in charge of a company responsible when they had attempted to hide behind shell corporations to otherwise avoid liability. Ms. Nanda spoke as well on her office’s efforts to address imminent dangers.
Following Ms. Nanda’s presentation, a question was posed in the context of the new rule regarding subpoenas under 8(d) of the Act and whether the subpoenas would be excessively burdensome on employers. Well known among OSHA practitioners and rooted in the language of the OSH Act, the Minimum Burden Doctrine restricts OSHA’s ability to obtain information by placing anything more than the minimum burden on the employer. Formal subpoenas may greatly increase the burdens placed on employers to produce documents, which risks a violation of the Minimum Burden Doctrine.
The conference also featured a panel discussing the increased trends of mental health issues in the workplace. The panel first spoke about employer obligations under the OSH Act regarding mental health under OSHA’s general duty clause and the seminal Integra decision. The panel also talked about the status of OSHA’s anticipated workplace violence rule and provided an overview of numerous workplace violence caselaw. There was further discussion regarding OSHA’s emergency response rule and OSHA’s suicide prevention initiative to promote workplace mental health and suicide prevention awareness. The interplay between the ADA and mental health was also addressed by the panel.
Ending day one, Kimberly Stille, Director, Directorate of Enforcement of OSHA and Peter Vassalo, Counsel for Special Litigation, Office of the Solicitor spoke at length about key enforcement initiatives for 2023. Ms. Stille spoke at length about indoor and outdoor heat illness prevention which is aimed to address the leading weather-related killer in the workplace. Ms. Stille discussed OSHA’s heat national emphasis program that is currently in place. Ms. Stille has noted that since the NEP was issued on April 8, 2022, there have been 1,685 federal inspections opened and 1,252 violations, most of which were not for heat but other issues such as fall protection or hazcom. Ms. Stille and Mr. Valasso then moved on to discussing OSHA’s new enforcement initiatives related to Instance-by-Instance, SVEP, and egregious policy. The panelists and the participants engaged in a spirited discussion regarding the benefits and drawbacks of such programs, such as the anticipated growth in employer contest rates due to the increase in penalties, the agency’s role in ensure employee safety and health through achieving abatement of alleged hazards, and the constitutionality of the SVEP policy. The panel ended with a presentation of inspection and citation metrics and a planned refresh of regional and national emphasis programs. More to come from the conference tomorrow