By Ilana MoradyPatrick D. Joyce, and Coby Turner

Seyfarth Synopsis: The Cal/OSHA Standards Board (“Board”) has published proposed language for the third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”), which will be voted on during the upcoming April 21, 2022 Board meeting. The ETS, assuming it is readopted, will expire on December 31, 2022.

Background

The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption is set to expire on May 6, 2022, after being extended by Executive Order. Normally, an emergency regulation can only be readopted twice, but the Governor issued an Executive Order in December 2021 permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022.

The Board will hold a meeting on April 21, 2022, to vote on the new proposed language. In the meantime, the Board is accepting comments on the proposal, but because this is an emergency regulation, changes prior to the vote are unlikely. As with past meetings, it is expected that the Board will vote to approve and adopt the proposed third iteration of the ETS.

What’s New?

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and will include removal of some requirements. Highlights include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employees has recently had and recovered from COVID-19 (see below).
    • Provision of Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees regardless of vaccination status are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts (note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

When Will This End?

The ETS, assuming it is readopted this third time, will expire on December 31, 2022. So while much of the rest of the country moves on from burdensome COVID-19 requirements, California employers will still be under the weight of the Cal/OSHA ETS for the remainder of this year. That includes (but is not limited to) requirements to continue notifying employees any time a COVID-19 case has been onsite during the infectious period, and to continue “exclusion pay” for eligible employees with workplace exposure.

And after December 31, 2022? COVID-19 regulation in California is unlikely to disappear. Word on the street is that Cal/OSHA may seek to make the third readoption a permanent standard until it ultimately replaces it with a more general airborne infectious disease prevention standard. So don’t plan on throwing your notification templates or written COVID-19 Prevention Plan in the trash just yet.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

By Brent I. Clark, James L. CurtisAdam R. Young, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: As we previously blogged, the federal Occupational Safety and Health Administration issued a notice of proposed rulemaking to expand requirements for employers to submit OSHA forms via its Injury Tracking Application (ITA). Now the agency has issued enforcement guidance instructing OSHA how to identify and enforce potential violations of the OSHA rule requiring electronic submittal of injury and illness records.

In an apparent attempt to make it easier for each OSHA Area Office to identify covered employers who have not submitted OSHA 300A yearly summaries to OSHA’s ITA within the required timeframe, the Directors of OSHA’s Directorate of Technical Support and Emergency Management and Directorate of Enforcement Programs issued enforcement guidance for OSHA Regional Administrators on April 4, 2022. According to the guidance,

[e]ach week, the Directorate of Technical Support and Emergency Management, Office of Statistical Analysis (OSA) will run an OIS Scan Summary Report of inspections opened during the previous week and not yet closed. OSA will match the open inspections list against a list of establishments that may have failed to submit their CY 2021 Form 300A data to create a list of potential non-responders by area office. OSA will send the weekly Area Office Potential Matches Report to the Regional Coordinators for distribution.

OSHA Area Offices are directed to review their weekly list to verify whether facilities with ongoing inspections meet the criteria for reporting through ITA. Where the inspected facility is required to report, “the CSHO shall inform the employer of their reporting obligation and follow the enforcement procedures in the May 6, 2021, memorandum Enforcement Procedures for Failure to Submit Electronic Illness & Injury Records under 29 CFR 1904.41(a)(1) & (a)(2).”  This move toward automation takes the burden to identify allegedly non-compliant employers off of OSHA inspectors, and arms CSHOs with information to issue citations for employer failure to report through the ITA.

The data for calendar year 2021 had to be submitted to OSHA by March 2, 2022, so the six-month date to issue a citation for non-compliance with the requirements of 29 CFR 1904.41 is September 2, 2022.

We blogged previously on OSHA’s reporting enforcement efforts and the real consequences that can face employers for non-compliance. See OSHA To Post Employer Injury Data Online, Will Require Employers to Submit Logs Electronically, and False Injury Logs Can Do More Than Lead to OSHA Citations: Safety Manager Sentenced to 78 Months in Prison for Major Fraud.

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 Adam R. Young, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: The rate of positive drug test results among America’s workforce reached its highest rate in 2021 since 2001, and was up more than 30% in the combined U.S. workforce from an all-time low in 2010-2012, according to a new analysis released by Quest Diagnostics, the world’s leading provider of diagnostic information services.

Employers face mounting challenges relating to employee drug impairment, use, and possession in the workplace.  The Quest Diagnostics study, based on over 11 million drug test results collected between January and December 2021, reveals insights into workforce drug use as employers grapple with creating safe, healthful work environments amid an ongoing recruitment and retention crisis. The overall positivity rate between January and December 2021 was 4.6%, compared with 4.4% in 2020.  The 2021 positivity rate represented an increase of 31.4 percent from the all-time low of 3.5% just 10 years ago (2010-2012).

The data combines employment-related testing data from private employers, federally-mandated drug testing (such as DOT-regulated drivers, pilots, and nuclear power industry employees), and federal employees.

Positivity for Marijuana Continues Upward Climb In U.S. Workforce

The largest drivers for these increased rates has been positivity for marijuana, particularly in those states that have legalized recreational marijuana.  Positivity rates for marijuana in the general U.S. workforce, based on more than 6 million urine tests, continued an upward climb, increasing 8.3%, for the highest positivity rate ever reported. Over the last five years, positivity for marijuana in the general U.S. workforce increased 50%.  For oral fluid tests for marijuana, the drug positivity rate was 14.8% in 2021, an increase of 20.3 percent compared to 2020 (12.3%) and up 68.2% over five years (8.8% in 2017).

Oral fluid tests generally have a shorter window of drug detection than urine, and can detect some drugs faster, in a matter of minutes versus hours. Oral fluid collection also has the advantage of being observed, making it harder to subvert the testing process.

Overall Workforce Drug Positivity Decreased, But Increased For Marijuana, Methamphetamine And Cocaine

At the same time, the positivity rate for cocaine increased 46.6% (0.85% in 2021 versus 0.58% in 2020), its highest spike since 2006, and methamphetamine increased 26.4% (0.67% in 2021 versus 0.53% in 2020), exhibiting year-over-year increases for the last 5 years.

Jenny Burke, Vice President of Impairment Practice, at the National Safety Council, is quoted saying

drug use affecting the work environment is a complex problem that is not going away. When workers use impairing substances, it can create incidents that compromise the safety of other workers and, in some cases, the general public. Employers should have the right and ability to maintain a substance-free workplace and the use of drug testing, including oral fluid in addition to urine. NSC supports policies and procedures that ensure safe and healthy workplaces.

As we previously blogged, the National Safety Council continues to recommend a zero tolerance policy for marijuana in the workplace for employees in safety sensitive positions.

During the recent pandemic downswing, many employers are contemplating returning their workforces to physical, brick-and-mortar worksites and are taking the opportunity to revisit workplace policies. All employers should consider how returning to in-person work will affect employee safety across the board and should plan accordingly, including in the face of rising drug test positivity. Though recreational marijuana use may be legal in certain U.S. jurisdictions, that does not negate the potential safety and health effects it could have on places of work. To mitigate safety and enforcement risks from OSHA and DOT, employers should communicate clear policies and consider providing relevant training to their employees concerning the impacts of drug use on work environments.

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 Benjamin D. BriggsA. Scott HeckerAdam R. Young, Mark A. Lies, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration is proposing to amend its occupational injury and illness recordkeeping regulation, 29 CFR 1904.41. The current regulation requires certain employers to electronically submit injury and illness information – that they are required to maintain – to OSHA. The agency uses these reports to identify and respond to emerging hazards and makes aspects of the information publicly available.

In addition to reporting their Annual Summary of Work-Related Injuries and Illnesses, the proposed rule would require certain establishments in certain high-hazard industries to electronically submit additional information from their Log of Work-Related Injuries and Illnesses, as well as their Injury and Illness Incident Report.

The Agency claims that the rule will improve OSHA’s ability to use its enforcement and compliance assistance resources to identify workplaces where workers are at high risk. OSHA also believes that the proposed rule will also advance OSHA’s mission to empower workers by increasing transparency in the workforce.

The proposed rule would:

  • Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year.
  • Update the classification system used to determine the list of industries covered by the electronic submission requirement.
  • Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
  • Require establishments to include their company name when making electronic submissions to OSHA.

Establishments with 20 or more employees in designated high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA annually.

Many in the regulated community have criticized the new rule on the basis of potential public disclosures of employee health information. OSHA has announced that it will use artificial intelligence software to identify and redact employee names, but leave all references to employee health information. Approximately three years ago, OSHA credited these privacy concerns in issuing its January 25, 2019 final rule limiting submission to Form 300A, noting in the summary of that rule: “[s]uch submissions provide OSHA with ample data that it will continue seeking to fully utilize.”

Submit comments online using Docket No. OSHA-2021-0006 on the Federal eRulemaking Portal. Read the Federal Register notice for details. Comments must be submitted 60 days after Mach 30, 2022, when the proposed rule was published in the Federal Register.

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 Benjamin D. BriggsA. Scott Hecker, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: CDC’s new COVID-19 Quarantine and Isolation calculator “takes the stress out of deciding when, and for how long, individuals with COVID-19 and close contacts need to stay home, get tested, and wear a well-fitting mask.”

The new CDC calculator may help people with COVID-19 and their close contacts decide what precautions they should take to limit COVID-19 transmission in their communities, including whether to quarantine or isolate.

Each person’s COVID-19 circumstances are unique, and this new tool can provide information that is more tailored to an individual’s particular needs.  With the COVID-19 landscape always shifting, the calculator can assist COVID-19 cases and close contacts to understand and follow current CDC guidance on isolating and quarantining, as well as to determine whether they should test or wear a mask.

The CDC calculator is geared for the general public and not specifically for use by employers.  However, employers may consider adopting this calculator for employee quarantine and isolation.

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 Benjamin D. BriggsAdam R. Young, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: The federal Occupational Safety and Health Administration (OSHA) has reopened its rulemaking record and scheduled an informal public hearing to seek comments on specific topics that relate to the development of a permanent OSHA standard to protect healthcare and healthcare support service workers from workplace exposure to COVID-19.

OSHA’s two COVID-19 Emergency Temporary Standards (ETSs) are moribund.  Its ETS pertaining to healthcare expired – and was explicitly withdrawn by OSHA – in December 2021, save for certain recordkeeping provisions.  The Vaccination and Testing ETS was stayed by the Supreme Court and later withdrawn.  But the COVID-19 enforcement train is plowing ahead.  Two weeks ago, OSHA leadership publicly declared the COVID-19 “endemic” as its top enforcement focus of 2022.  Along with a National Emphasis Program to effectuate enforcement, OSHA is developing two new permanent standards to address COVID-19 and related hazards.   First, OSHA has a aerosolized transmissible diseases standard in the works, which likely will pertain to exposures from all airborne diseases.

Second, while the ETS to protect workers in healthcare settings from occupational exposure to COVID-19 has expired, OSHA has taken the position that it continues to serve as a proposed rule for a permanent standard.  Pursuant to Section 6(c) of the OSH Act, rulemaking on a permanent standard should have concluded within six months of the ETS’s issuance, so challenges to a permanent standard’s legality may argue that it is inappropriate for OSHA to keep using the defunct ETS as a proposed rule.  That will be for a court to decide on another day.

We blogged and wrote extensively on the substance of the COVID-19 Healthcare ETS, which addressed a range of COVID-19 precautions and protocols.  The ETS also included wage payment provisions for medically removed employees, which may have exceeded OSHA’s regulatory authority; the permanent standard could include similar provisions.  While vaccination was not addressed in the ETS, this regulated workforce is largely covered by the CMS vaccination mandate, which requires vaccination and does not permit a testing opt-out.

OSHA recently announced a limited reopening of the rulemaking record seeking additional comment by April 22, 2022 on specific topics, including:

  • Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures.
  • Additional flexibility for employers.
  • Removal of scope exemptions.
  • Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
  • Employer support for employees who wish to be vaccinated.
  • Limited coverage of construction activities in healthcare settings.
  • COVID-19 recordkeeping and reporting provisions.
  • Triggering requirements based on community transmission levels.
  • The potential evolution of SARS-CoV-2 into a second novel strain.
  • The health effects and risk of COVID-19 since the ETS was issued.

In its March 23, 2022 Federal Register notices “of limited reopening of comment period” and “of informal hearing,” OSHA acknowledged that “the majority of the [original] comment period occurred prior to when the Delta and Omicron variants became prevalent in the United States,” so “OSHA requests new studies or data related to the Delta and Omicron variants since the close of the initial comment period,” presumably to ensure that the Agency is relying on current information in finalizing its rule.  Similarly, OSHA is asking for information to inform its economic analyses and methodologies.

Those wishing to testify at the hearing on the standard must submit their notice of intention to appear no later than 14 days after March 23, 2022, the publication date of the Federal Register notice.  The hearing will begin on April 27, 2022, and, if necessary, will continue on subsequent days.

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 Robert S. Whitman and Amanda Williams

Seyfarth Synopsis: The New York Commissioner of Health has declined to extend the designation of COVID-19 as a highly contagious communicable disease under the NY HERO Act. Employers are no longer required to activate their safety plans.

As previously reported (most recently here), the New York State Commissioner of Health, on September 6, 2021, designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” This required employers to activate their safety plans under the NY HERO Act. Since then, the designation has been extended five times, with the latest extension having expired on March 17, 2022.

With COVID-19 infection and hospitalization rates decreasing, and following the lifting of the HERO Act mask mandate and other preventative measures in New York (as reported here), the Health Commissioner has now allowed the designation to expire.

Thus, effective March 18, 2022, employers are no longer required to implement their Disease Exposure Prevention Plan under the HERO Act, including daily health screenings and other requirements.  Employers must continue to maintain their safety plans in the event of a later designation, but no longer need to activate them.

Seyfarth will continue to monitor developments in this space and provide updates when available.

By Brent I. ClarkBenjamin D. BriggsPatrick D. JoyceAdam R. YoungA. Scott HeckerMelissa A. Ortega, and Matthew A. Sloan

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Sarasota, Florida. The meeting includes representatives from the U.S. Department of Labor, OSH Review Commission, the MSH Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.

The final day of the ABA OSHA/MSHA Midwinter Meeting was focused on storytelling in many different contexts. The day’s initial sessions focused on the context of trials, while the day concluded with sessions focusing on telling the stories of underrepresented workers and disparate impact felt by those workers with respect to workplace safety.

The day opened with an engaging panel that included three Administrative Law Judges from the Occupational Safety and Health Review Commission: Chief Judge Covette Rooney, Judge Heather Joys, and Judge Patrick Augustine. The Judges provided their perspectives on the benefits of telling a good story during the trial process – both at trial and in post-hearing briefing. It was clear from the discussion that holding the Judge’s attention by telling a convincing story is just as important as stepping through the technical and legal elements of the case. Using testimony and exhibits in a way to create a continuous arc from start to finish will go a long way toward assuring the Judge knows what your argument is and why you believe your client should win.

Following the OSHRC ALJ’s storytelling discussion, we had an opportunity to observe a mock jury trial where these suggestions were put to the test. Following the mock trial, the mock jury provided feedback to the attorneys and witnesses about which tactics were effective and which tactics were not.

The third session of the day focused on disparate impact (and disparate treatment) and how worker safety is affected. The panelists provided their own real-world experience on how policies may intentionally or unintentionally affect employees differently based upon a protected characteristic or class and how this may affect safety in the workplace. According to the panel, the workers who face the most exposure to safety hazards tend to be underrepresented minorities, oftentimes non-English speakers. Many of the examples arose in the context of the COVID-19 pandemic and the disparity between higher and lower income workers with respect to exposure to COVID-19 in the workplace.

The final panel of this year’s meeting discussed the interplay between politics, public health, and workplace safety, using several recent proposed and enacted OSHA rules from the past several years. The panelists discussed difficulties in maintaining and enforcing workplace safety stemming from divergent politics on issues such as masking, vaccines, and identity. There was a vigorous discussion about the apparent disconnect between OSHA’s responsibility to ensure employee safety and health and the rising divisiveness in politics that sometimes hamstrings the ability to protect workers, with a focus on workplace violence, gender identity, and bathroom access for transgendered workers.

Today’s blog wraps up our reporting from the 2022 Occupational Safety and Health Law Committee Midwinter Meeting in Sarasota. It was another successful and engaging meeting, and we look forward to next year’s meeting.

By Brent I. ClarkBenjamin D. BriggsPatrick D. JoyceAdam R. YoungA. Scott HeckerMelissa A. Ortega, and Matthew A. Sloan

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Sarasota, Florida. The meeting includes representatives from the U.S. Department of Labor, OSH Review Commission, the MSH Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.

Day 2 began with a panel discussion of significant, recent, safety-related cases. The panel included Edmund Baird, Associate Solicitor for the Occupational Safety and Health (OSH) Division of the U.S. Department of Labor. Among the matters discussed was the recent Supreme Court litigation in BST Holdings, LLC V. OSHA regarding the “vaccine or test” emergency temporary standard for non-healthcare private employers with over 100 employees. Baird noted his disagreement with the Supreme Court’s decision, explaining there was precedent for elements of the ETS (including vaccination) in OSHA’s bloodborne pathogen standard. Baird also noted it was unusual that the Supreme Court did not focus as heavily as anticipated on OSHA’s emergency authority, and instead focused its energies on the agency’s general authority to address hazards like the pandemic.

Panelists provided thoughts on the Fifth Circuit’s decision in D.R.T.G. Builders, L.L.C. v. Occupational Safety and Health Review Commission. In that case, the Fifth Circuit considered whether OSHA had properly served a small employer with notice of citations, analyzing the question under a multifactor analysis involving danger of prejudice, length of delay, good faith, and “the reason for the delay, including whether it was in the reasonable control of the movant.” Baird welcomed the Court’s decision, which upheld the dismissal of the employer’s late notice of contest, and the use of the multifactor rule. Baird emphasized that the onus is on employers to have processes in place to process and sort mail, including potential OSHA citations.

Then, a panel of government, management, and employee rights advocates discussed OSHA’s pandemic endgame. Peter J. Vassalo, Counsel for Special Litigation in the OSH Division, emphasized that the agency will continue to enforce COVID-19 safety using the General Duty Clause, the COVID-19 National Emphasis Program, and pre-existing safety standards. He noted that employers are well-equipped with tools and information to keep employees safe and abate citations. His best advice was “use the tools available to address COVID” and that employers “know what works.” This comment elicited a retort from the management representative on the panel, who explained that companies look to OSHA for specific guidance on abatement and employee protection and have not always known “what works,” especially at the beginning of the pandemic.

After the panel discussions, attendees split up among various breakout sessions, including a panel discussion on state plan states. Elliott Furst, Senior Counsel, Attorney General of Washington, shared some insights into happenings in the state of Washington. Notably, Washington has accepted a rulemaking petition for wildfire smoke and is planning to update its rule regarding heat stress, including changes to the trigger levels, to make it a more protective rule in light of recent warming trends in the state. Washington is also working on a permanent infection disease rule. The panel also discussed SB 606 in California, which, in part, creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation if Cal/OSHA determines that either of the following factors “is true”: (a) the employer has a non-compliant written policy or procedure; or (b) Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.”

In the Construction and Infrastructure breakout, Scott Ketchum, head of OSHA’s Directorate of Construction provided an overview of his office. OSHA’s construction enforcement will become more important as the infrastructure bill spurs industry activity, with more than $200bn to be spent on roads and bridges, and $65bn spent on telecommunications towers and fiber optic installation. Mr. Ketchum advised that enforcement and compliance assistance will address the “Focus Four” hazards: 1) Falls; 2) Struck-by; 3) Electrocutions; and 4) Caught in/between. Director Ketchum represented that these hazards account for 60% of construction deaths and that many of the top 10 construction violations derive from related concerns. Juan Lopez discussed OSHA’s use of drones and the agency’s drone directive, as well as ways to support vulnerable populations in construction, particularly Latino, Spanish-speaking individuals and immigrants. OSHA works with DHS to avoid chilling effects surrounding complaints and inspections, and, Lopez noted, OSH Act rights are not contingent on immigration status. Lopez committed that OSHA does not see immigration status as relevant to a safety and health inspection. Marcus Braswell of Sugarman Susskind Braswell & Herrera closed the panel opining that the Infrastructure Investment and Jobs Act is really about the safety of the country, so workplace safety is integral to coming infrastructure projects. He highlighted the important of proactivity and communication, summarized OSHA’s processes for focused inspections, and thanked attendees for their partnership in ensuring worker safety.

The Creative Litigation breakout focused on creative strategies from across the country for enforcing OSHA safety standards and other workplace safety requirements through private actions and how employers can respond. Among the more interesting strategies was to utilize sophisticated plaintiffs’ counsel to set up an employee whistleblower retaliation claim under one of the OSHA-enforced whistleblower provisions.

The last panel of Day 2 featured a discussion regarding heat illness, including some prognostication about what a future heat illness standard might look like. There was some healthy debate over whether the rule should be “prescriptive” (i.e. with specific triggers and thresholds and required actions tied those triggers and thresholds) or “performance-based” (requiring that policies be in place but affording employers greater flexibility to fit the policies to their specific workplaces). The standard, as proposed, would apply to all General Industry and Construction employers, including indoor and outdoor work. The government representative, Anne Godoy, Senior Attorney, U.S. Department of Labor,  explained that the agency is still in the information gathering stage and is analyzing potential scopes and thresholds from both a scientific and feasibility perspective. She offered no prediction on estimated time frame. Panelists and the audience engaged in a heated discussion as to whether the Supreme Court’s decision on the emergency temporary standard has created jurisprudence that will disallow or limit OSHA’s ability to regulate heat illness hazards, a pervasive hazard that affects industries very differently. Heat illness is an issue we have tracked heavily in our ongoing blogs. We look forward to additional updates tomorrow.

By Brent I. ClarkBenjamin D. Briggs, Patrick D. JoyceAdam R. Young, A. Scott Hecker, Melissa A. Ortega, and Matthew A. Sloan

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Sarasota, Florida. The meeting includes representatives from the U.S. Department of Labor, OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.

Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health from the U.S. Department of Labor, spoke on Wednesday, March 9, 2022, about the Biden Administration’s priorities and initiatives for fiscal year 2022, which included providing “good” and safe jobs for workers. OSHA plays a big role in that goal, Parker stated. OSHA will focus on key components, such as: COVID-19; high risk work affecting people of color; supporting safe jobs in construction; and revitalizing its health and safety occupational program. In regard to COVID-19, Parker noted that OSHA will work toward issuing a broader infectious disease standard to “prevent history from repeating itself.” This broader standard would be in addition to the existing standards applicable to COVID-19.

The Assistant Secretary also spoke about OSHA’s new initiative, which was announced on March 7, 2022, to focus its enforcement effort and resources for inspections in hospitals and nursing care facilities treating COVID-19 patients. The Assistant Secretary added that 15% of OSHA inspections in 2022 would take place at these facilities. Other priorities for the Biden Administration include heat-related hazards, safety inequality in the workplace, and staffing throughout OSHA.

Seema Nanda, Solicitor of Labor at the U.S. Department of Labor, followed up and noted that the Office of the Solicitor will prioritize employee misclassification, early intervention in retaliation cases, and workplace violence. The Office of the Solicitor will “use all the tools in its toolbox” in the OSHA context, by focusing on its use of warrants, subpoena power and subpoena enforcement, enhanced abatement, and coordinating with the Department of Justice in regard to civil and criminal penalties.

Kimberly Stille, Director, Directorate of Enforcement of OSHA and Dionne Williams, Deputy Director, Directorate of Enforcement of OSHA spoke at length about key enforcement initiatives for 2022, including moving to treating COVID-19 as endemic, focus on heat-related hazards, updating and streamlining its enforcement policies, and protecting vulnerable and underserved workers. Stille and Williams reaffirmed OSHA’s continued focus on using the General Duty Clause to cite employers for COVID-19 hazards and noted that updated COVID-19 guidance will be published “soon.”

The U.S. Department of Labor speakers noted that employers may follow and use its Emergency Temporary Standards safe harbors.

After an informative panel on ethics and professionalism from Occupational Safety and Health Review Commission Chief Administrative Law Judge Covette Rooney, Federal Mining Safety and Health Review Commission Chief Administrative Law Judge Glynn Voisin, and Federal Mining Safety and Health Review Commission Administrative Law Judge Thomas McCarthy (with some ethics-related vocals), we also heard from the Commissioners from the Occupational Safety and Health Review Commission and the Federal Mining Safety and Health Review Commission. The Commissioners discussed current trends in petitions for discretionary review, the current makeup of the Commissions, differences in procedures, how the two Commissions handle arguments and decisions, and what the Commissioners see as best practices in briefing, arguing cases and practicing before both Commissions.

More to come from the conference tomorrow.