By Brent I. ClarkPatrick D. JoyceAdam 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

Seyfarth Synopsis: The National Retail Federation (NRF) is hosting a free webinar on workplace violence, taking place on Mar. 7, 2023, at 12:00 – 1:15 PM.

We are looking forward to the National Retail Federation’s Retail Law Summit, where Adam Young will be presenting a March 7, 2023 webinar on Workplace Violence in Retail with his colleagues Melissa Ortega and Timothy Hoppe. Any retailers or others who are interested in this topic, please tune in! Our event description is below:

Employers face growing concerns with retail theft, threats, assaults, sexual violence, and mass shootings, particularly in West Coast markets. The session will discuss legal liabilities relating to workplace violence, as well as applicable and draft laws. We will provide practical tips on developing and updating workplace violence policies to best protect employees, customers and visitors. We will guide attendees through common challenges such as responding to customer/visitor threats, safety concerns from employees, and individuals using retail locations for shelter.

By Rebecca A. Davis and Jeryl L. Olson

Seyfarth Synopsis: ASTM 1527-21 is now in effect.  The ASTM Standard for Phase I Environmental Site Assessments is evaluated every eight years.  The most recent update, ASTM E1527 – 21, approved by the United States Environmental Protection Agency (EPA) on December 15, 2022, is now in effect.

On December 15, 2022, the United States Environmental Protection Agency (EPA) published its final rule, 87 Fed. Reg. 76578, which formally updates the standard to satisfy “all appropriate inquiries” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The result is the effective adoption of ASTM E1527-21 as the new Phase I Environmental Site Assessment standard.  ASTM E1527-21, went into effect on February 13, 2023, and significantly revises a number of the prior provisions under ASTM E1527-13, and also clarifies a number of key terms and requirements.

The new ASTM Standard is intended to provide additional information (and the basis for defenses to certain CERCLA-type liabilities) for prospective purchasers by revealing additional conditions not previously considered relevant to due diligence or the CERCLA defenses.  However, there are significant additional consequences we anticipate will stem from key definitional changes to “Recognized Environmental Condition” (REC), “Controlled Recognized Environmental Condition” (CREC), and “Historical Recognized Environmental Condition” (HREC), which are updated to reduce misclassifications of known or likely hazardous material and petroleum product releases affecting subject properties.  Overall, these definitional changes should create consistency amongst consultants, including as to how environmental conditions are recognized; however, they will also bring added expense to stakeholders.  For example, the updated standard also adds new definitions for the terms “likely,” which is intended to clarify the likely presence or likely release of a hazardous substance.  Although this change is expected to result in greater consistency, the changes to the definitions of REC and Business Environmental Risks (BERs) are also expected to result in consultants identifying more RECs and BERS than would have been identified under the old standard.

Other significant changes include:

  • A requirement for enhanced research into the history of the subject property and adjoining properties, as well as enhanced site reconnaissance requirements;
  • Clarification as to the meaning of the terms “Property Use Limitation” and “Significant Data Gap”; and
  • Clarification that the 180-day shelf life of the Phase I does not commence as of the date of the report, but rather when the various components of the Phase I report are completed, including (i) interviews with owners, operators and occupants, (ii) searches for lines, (iii) searches for government records, (iv) visual inspections by the consultant, and (v) consultant’s certifications; and
  • Guidance regarding how to address emerging contaminants, such as per- and polyfluoroalkyl substances (PFAS), as a non-scope consideration.  This addition may ultimately provide an important driver for parties seeking to determine whether to evaluate PFAS.

In addition to the forgoing, and notwithstanding the definitional changes, the new standard clarifies that a requirement for Phase II testing is not mandated as a result of findings.  Nonetheless, many market participants (including lenders, institutional purchasers/investors and others) will often still require such testing be performed in a variety of circumstances, increasing the likelihood that such additional testing will not only add to the costs of environmental due diligence, but also to the ultimate consequences thereof.

Also, particularly in states which require disclosure of known contamination discovered during due diligence, the combination of the expanded ASTM Standard and these disclosure requirements will force properties into cleanups that otherwise would not have been required but for the real estate transaction.  This could be true even where the contamination was caused in the far-distant past by some unknown party or long-ago owner/operator, or where the contamination is from an unrelated nearby property.  This consequence of forcing more properties into cleanup affects not only purchasers, but also sellers, as the parties, due to necessity, will negotiate responsibility for due diligence costs, cleanup costs, and the administrative costs of negotiating “NFAs” and “NFRs” with state agencies.

The new ASTM 1527-21 standard brings with it both the possibility of consistency and the potential for increased due diligence costs.  Only time will tell how well the new objectives and guidance are received by practitioners and stakeholders alike. 

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Environmental Team.

By Benjamin D. Briggs, A. Scott Hecker, Adam R. YoungDaniel R. BirnbaumPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Biden Administration’s Fall 2022 Regulatory Agenda for DOL indicates the Agency’s intent to revise and expand its use of administrative subpoenas through an “interim final rule.” OSHA claims the purpose of its planned interim final rule is “to provide helpful clarity to the agency and the regulated public on” what OSHA suggests are “recurrent issues which lead to time-consuming disputes between the agency and employers.” OSHA’s realignment of the role of subpoenas in its investigative process could foreshadow an uptick in OSHA’s subpoena usage and increased adversarial activity between employers and the agency.

According to Chapter 15 of OSHA’s Field Operations Manual (“FOM”), which provides guidance to OSHA enforcement personnel, OSHA issues subpoenas “whenever there is a need for records, documents, testimony, or other supporting evidence necessary for completing an inspection or an investigation of any matter falling within OSHA’s authority.”  Subpoenas duces tecum, or for the production of evidence,require employers to produce documents or other evidence at a specific time and location, such as injury and illness records, e-mails and other correspondence, training materials, or employee handbooks and safety manuals.  Subpoenas ad testificandum, or “to give testimony,”compel their targets to testify under oath.  Notably, OSHA subpoenas are not self-enforcing, so if an employer fails to comply with a subpoena, OSHA must seek court enforcement.  Employers have the right to contest a subpoena to show it is, e.g., overbroad, beyond the scope of OSHA’s investigation, or excessively burdensome.

Employers want to avoid these kinds of court conflicts, and “helpful clarity” from OSHA about its use of subpoenas would be…well…helpful.  But significant ink has already been spilled in the FOM about the subpoena process, so it is unclear whether this interim final rule will lead to greater uniformity and predictability for the regulated community.

Employers should be aware, as explained by the Federal Register, that OSHA uses an “interim final rule”

[w]hen [it] finds it has good cause to issue a final rule without first publishing a proposed rule . . . .  This type of rule becomes effective immediately upon publication.  In most cases the agency stipulates that it will alter the interim rule if warranted by public comments.  If the agency decides not to make changes to the interim rule, it generally will publish a brief final rule in the Federal Register confirming that decision.

Interim final rules tend to provide less visibility into an agency’s plans and allow for less input from the public before taking effect.

Employers must comply with subpoenas – unless successfully challenged – so they should not be taken lightly.  They formally memorialize OSHA’s document demands, and given the potential court involvement noncompliance can invite, we recommend consulting experienced counsel to develop strategies to respond to or contest an OSHA subpoena.

Seyfarth’s subject matter experts will continue to monitor this developing situation to identify changes to the administrative subpoena process and to evaluate the on-the-ground impacts those updates may have on employers.

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 A. Scott HeckerAdam R. YoungPatrick D. JoyceBrent I. ClarkDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: Occupational noise exposure is common in certain industries across the United States, such as construction, manufacturing, and even warehousing and logistics. According to OSHA, the “Center for Disease Control (CDC) estimates that 22 million workers are exposed to potentially damaging noise at work each year.”

Many industries conduct activities that may require an employer to evaluate occupational noise exposure and potentially implement an occupational noise monitoring, conservation, and mitigation program. Regulations in General Industry (29 CFR 1910.95) and Construction (29 CFR 1926.52 and 29 CFR 1926.101) govern if, when, and how to address occupational noise exposure in the workplace.

OSHA requires

employers to implement a hearing conservation program when noise exposure is at or above 85 decibels averaged over 8 working hours, or an 8-hour time-weighted average (TWA). Hearing conservation programs strive to prevent initial occupational hearing loss, preserve and protect remaining hearing, and equip workers with the knowledge and hearing protection devices necessary to safeguard themselves.

OSHA explains that the following can be an indication that noise may be an issue in the workplace if employees:

  • Hear ringing or humming in their ears when they leave work.
  • Have to shout to be heard by a coworker an arm’s length away.
  • Experience temporary hearing loss after leaving work.

According to OSHA, employers can protect their workers from excessive noise and prevent hearing damage by using “quieter machines, isolating the noise source, limiting worker exposure, or using use effective protective equipment” that can modulate noise below certain thresholds.

Another tool both employers and workers can use to combat workplace exposure to excessive noise is NIOSH’s Sound Level Meter App, which measures workplace sound levels. The app can help reduce occupational noise-related hearing loss by providing guidance to allow stakeholders to make informed decisions about exposures.

Employers should also be aware that employees with hearing loss can still be effective and safe workers. In a January 26, 2023 article in its Safety+Health Magazine, the National Safety Council points to recently-updated materials from the EEOC explaining that “[a]lthough some employers may incorrectly assume otherwise, people with hearing disabilities can be safe and effective workers.”

EEOC guidance, “Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act,” provides background information and a Q&A on applying the Americans with Disabilities Act of 1990  to job applicants and employees with hearing disabilities, including:

  • when an employer may ask an applicant or employee questions about his hearing impairment and how it should treat voluntary disclosures;
  • what types of reasonable accommodations employees with hearing disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
  • how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

Employers should work with qualified outside counsel to ensure that they have completed required noise surveys and, if necessary, have an appropriate audiometric testing and hearing conservation program in place.

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 Adam R. Young, Brent I. ClarkBenjamin D. BriggsDaniel R. BirnbaumMark A. LiesPatrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: In an effort to significantly increase the number of citations and penalties it may issue during an inspection, OSHA has updated its enforcement procedures for inspections to permit citations for each instance of alleged non-compliance.

In its most aggressive action to-date under the tenure of Assistant Secretary for Occupational Safety and Health Doug Parker, OSHA issued a memorandum on January 26, 2023 that significantly revamped OSHA’s policy for issuing Instance-by-Instance (abbreviated “IBI” by OSHA) citations for high-gravity serious violations of certain OSHA standards. Secretary Parker’s revised enforcement policy harkens back to the days of Assistant Secretary David Michaels, when “shaming” employers into compliance was on the top of OSHA’s agenda, rather than collaborating with employers to ensure compliance.

Subject to the factors discussed below, OSHA’s revised enforcement policy permits the Agency to issue a Citation and corresponding penalty for each instance of alleged non-compliance for each separate machine, location, entry or employee. The new enforcement policy goes into effect on March 27, 2023.

The prior policy, which had been in effect and unchanged since 1990, applied only to willful-egregious citations–very rare citations with a high standard of proof. OSHA has now indicated that instance-by-instance citations can be considered for high-gravity serious violations specific to:

  • lockout tagout
  • machine guarding
  • falls
  • trenching
  • respiratory protection
  • permit required confined spaces and
  • other-than-serious violations specific to recordkeeping

This list reflects several of the most commonly cited OSHA standards.

OSHA will look to the following factors in determining when to issue instance-by-instance citations:

  • The employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current;
  • The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39;
  • The proposed citations are related to a fatality/catastrophe;
  • The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

OSHA further indicates the revised policy may apply when the “text of the relevant standard allows [instance-by-instance application] (such as, but not limited to, per machine, location, entry, or employee) and when the instances of the violation cannot be abated by a single method of abatement.”

In a statement accompanying the revised enforcement policy, Assistant Secretary Parker explained that the impetus for OSHA’s updated enforcement guidance was to target “employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing.”  Parker’s comments reference a familiar theme cited by OSHA: that employers who choose “profit over safety” must be deterred through aggressive enforcement.  While this narrative often surfaces in OSHA enforcement efforts, it fails to recognize that profit and safety are not, as OSHA suggests, mutually exclusive.  In fact, research indicates that effective workplace safety programs enhance profitability by reducing damaging accidents, employee injuries, medical costs, administrative expenses, legal expenses, physical damage, and lost productivity. OSHA should instead promote workplace safety and regulatory compliance and collaboration as a means to increase productivity and profitability, and not continue to falsely assert that employers face a choice between the two.

In light of the recent guidance, employers must take a proactive approach to evaluating their workplaces to minimize risks. Moreover, employers must ensure that those responsible for OSHA reporting and recording obligations at the worksite under 29 CFR 1904 are fully complying with OSHA requirements. Further, employers must be more cautious in how they approach every OSHA inspection and settlement of citations, as the revised instance-by-instance policy will enhance potential liabilities for the next five years if an employer resolves a case that involves accepting willful, repeat, or failure to abate citations or if the case involved a fatality or catastrophe. As such, to avoid the potential of facing hundreds of thousands of dollars in penalties, employer should consult experienced OSHA counsel to reduce their potential liability.

 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 Adam R. YoungMelissa A. Ortega, Daniel R. Birnbaum, Mark A. Lies, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: In the wake of increased employee mental health concerns and mass shootings across the country, employers looking to create or enhance a workplace violence program can look to the National Safety Council (NSC), which released a series of teaching materials on workplace violence.

With record numbers of mass shootings to begin the year in 2023, as well as an increase in employee mental health concerns, employers must focus on the hazards of workplace violence and protecting their employees. While federal OSHA currently issues citations related to workplace violence under its General Duty Clause, it is developing a workplace violence standard. Employers without workplace violence programs would be wise to develop a program, train employees, and implement appropriate safety controls.

Workplace Violence Toolkit

To aid those efforts, NSC offers a range of new resources. The NSC explains that “workplace violence can range from threats and verbal abuse to physical assaults and homicide and is one of the leading causes of job-related deaths. Stress, increased workloads, financial problems, firing, partner violence or disciplinary actions all can be triggers for workplace violence – or there may be no easily identifiable prompt.”

The following resources are available to help employers know what to look for:

•           Implementation Guide to Addressing Workplace Violence
•           5-Minute Safety Talk
•           Poster:  Active Shooter
•           Quiz
•           Tip Sheet
•           Poster: Prevent Workplace Violence
•           Checklist
•           Webinar
•           Fact Sheet

While the NSC is a highly respected safety organization, NSC’s recommendations may need to be tailored to the industry and specific worksite, especially in California where there is a workplace violence in healthcare standard. Employers should consult with legal counsel before implementing the NSC’s recommendations to ensure compliance with the Americans with Disabilities Act, state cannabis laws, and other federal and state rules.

These resources are also available on the topic.

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 Adam R. YoungDaniel R. BirnbaumJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: The continuing proliferation of accidents involving carbon monoxide have drawn the attention of OSHA and NIOSH, which have issued regulations and recent press releases on the issue.

Approximately 400 Americans die each year from carbon monoxide poisoning, which can overcome an employee in a matter of minutes. According to the National Institute for Occupational Safety and Health (NIOSH), carbon monoxide (CO) poses a significant risk due to it being “a colorless, odorless, and toxic gas”.

NIOSH indicates that employers with the following equipment at their worksite are at risk of having CO hazards in the workplace: vehicle exhausts, fuel burning furnaces, coal burning power plants, small gasoline engines, portable gasoline-powered generators, power washers, fire places, charcoal grills, marine engines, forklifts, propane-powered heaters, gas water heaters, and kerosene heaters.

Further, NIOSH notes that the “[c]ommon symptoms of carbon monoxide exposure are headache, dizziness, weakness, upset stomach, vomiting, chest pain, and confusion.”  Employers should be monitoring their workforce for employees who may exhibit these symptoms so that it can act promptly if a CO hazard is present.”

OSHA has issued a news release on CO noting that employers who are “using fuel-burning equipment and tools in buildings or semi-enclosed spaces without adequate ventilation” face risk of CO exposure or death. The risk increases “during the winter months when employees use this type of equipment in indoor spaces that have been sealed tightly to block out cold temperatures and wind.” As such, as the weather cools, employers must remain vigilant regarding CO hazards.

Many manufacturing processes and industrial functions will generate CO.  The current standard set by the OSHA limits exposure to 50 parts of carbon monoxide per million parts (PPM) of air averaged over eight hours.  According to OSHA, employers should consider the following precautions:

• Never use a generator indoors or in enclosed or partially enclosed spaces such as garages, crawl spaces, and basements. Opening windows and doors in an enclosed space may prevent CO buildup.

• Make sure the generator has 3-4 feet of clear space on all sides and above it to ensure adequate ventilation.

• Do not use a generator outdoors if placed near doors, windows or vents which could allow CO to enter and build up in occupied spaces.

• When using space heaters and stoves ensure that they are in good working order to reduce CO buildup, and never use in enclosed spaces or indoors.

• Consider using tools powered by electricity or compressed air, if available.

• If you experience symptoms of CO poisoning get to fresh air right away and seek immediate medical attention.

Employers can also consider installing more mechanical ventilation, carbon monoxide area monitors, and badges to ensure that employees are not exposed. 

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 Adam R. Young, Daniel R. Birnbaum, Mark A. Lies, and James L. Curtis

Seyfarth Synopsis: Recent involuntary manslaughter charges against actor Alec Baldwin serve as a reminder of the state criminal manslaughter liability that may result from industrial accidents. Company management and employees involved in an accident face potential criminal prosecution, prison, and hefty personal fines.

The legal fallout from the unfortunate workplace fatality continues.  On January 20, 2023, New Mexico state prosecutors announced they were charging actor Alec Baldwin and armorer Hannah Gutierrez-Reed with involuntary manslaughter for the death of cinematographer Halyna Hutchins on the set of the movie “Rust” in October 2021. 

Criminal prosecutors can base charges solely on an OSHA citation that alleges: (1) the employer violated a specific applicable standard, (2) the employer did so willfully, and (3) that the violation caused an employee’s death. 29 USC § 666(e). The Department of Labor has entered into a Memorandum of Understanding with the Justice Department for ensuring effective prosecution of criminal workplace incidents. Federal OSHA criminal liability is punishable with six months’ imprisonment, a $500,000 fine to the Company, and a $250,000 personal fine. 

With regard to the “Rust” shooting, New Mexico OSHA issued of a “Willful” citation for $136,793.00 for failing to adhere to the film industry’s safety bulletins published by the Industry Wide Labor-Management Safety Committee. The Citation, issued under New Mexico OSHA’s General Duty Clause, is currently under appeal. No criminal charges have been filed based solely on the Citation.

As the “Rust” case illustrates, even if no criminal charges are based on the OSHA citations, state authorities may evaluate criminal charges relating to a workplace fatality. After a fatality is reported, state authorities routinely open concurrent criminal inspections. Many states (here New Mexico) then bring criminal charges of manslaughter against managers and employees involved in an accident. 

In the “Rust” case, under New Mexico law, the defendants face charges of involuntary manslaughter committed with a gun, punishable by a mandatory five years in prison. The involuntary manslaughter charges, which involves a killing while a defendant is acting negligently or without caution, mirror the “plain indifference” standard for acting “Willfully” for purposes of an OSHA citation. Special prosecutors on the case were quoted by media outlets as saying that there was a “pattern of criminal disregard for safety,” similarly mirroring the “Willful” standard.  

The recent charges should remind employers of the absolute importance of reviewing applicable safety standards, supervising employees exposed to such hazards, and enforcing the employer’s safety rules. The charges also serve as a powerful reminder that every individual in an organization will be viewed as having a responsibility for safety and duty to comply with applicable safety standards.

Employers who have workplace fatalities should engage qualified legal counsel and effectively manage inspections to minimize the probability they get willful citations.  OSHA’s employee interviews will be critical and employees must be adequately prepared — OSHA will not inform employees of their Miranda rights and may try to interview employees without management or company counsel present. If the employer receives a willful citation relating to a fatality, the employer should appeal and take all necessary steps to get the willful classification vacated.

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 A. Scott HeckerAdam R. YoungPatrick D. JoyceJames L. CurtisDaniel R. Birnbaum and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced enhanced enforcement and oversight efforts following an “alarming rise” in trenching fatalities, intended to draw attention to construction worker safety and present issues and solutions. Current OSHA enforcement guidelines require inspectors to open an inspection every time they see an open trench or excavation, regardless of whether a hazard is readily apparent.

The first half of 2022 saw an alarming increase in trench fatalities, increasing to 35 construction workers and greatly exceeding the 15 fatalities in 2021. In 2023, OSHA has redoubled its enforcement efforts to help prevent trenching accidents.

OSHA currently highlights trenching hazards on its website, to “[p]revent trench collapses and save lives.” Because employees may be quickly engulfed in significant amounts of material during trench collapses, OSHA recommends steps for controlling trenching hazards and keeping excavation work safe:

  • Ensure there is a safe way to enter and exit the trench;
  • Trenches must have cave-in protection – remember to Slope, Shore, Shield;
  • Keep materials away from the edge of the trench;
  • Look for standing water or other environmental hazards; and
  • Never enter a trench unless it has been properly inspected.

Based on OSHA’s news alert, enforcement related to trenching fatalities may be focused on ingress and egress, protective measures designed to prevent cave-ins, audits on nearby hazards that may create a safety issue, and inspection efforts by employers. Accordingly, employers should focus on these issues to reduce potential liability.

Any employer who has employees at a project that uses trenching or excavation should anticipate OSHA activity, and consult appropriate legal counsel to ensure that they are fully compliant.   Since 2018, federal OSHA has maintained a National Emphasis Program on Trenching and Excavation that requires OSHA compliance officers to open an OSHA inspection any time they observe an open trench or open excavation, “regardless of whether or not a violation is readily observed.”  Accordingly, any on-site OSHA compliance officer will open a separate inspection related to the trench if one is present. Even more impactful, any OSHA compliance officer driving by a construction site where there is an open trench is supposed to pull over, get out his camera, and open an OSHA inspection.

OSHA’s trenching and excavation page includes additional resources and publications to ensure trench and excavation safety, including:

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.