By Brent I. Clark, Patrick D. Joyce, Adam R. Young, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week. Today, we heard some introductory remarks from the Solicitor of Labor, a panel who discussed the recent Occupational Safety and Health Review Commission (OSHRC) decisions, a panel on OSHA’s enforcement activities and goals, and a panel on issues arising at the OSHA and MSHA commission level.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Palm Springs, California. Representatives from the OSH Review Commission, the MSH Review Commission, Administrative Law Judges, OSHA, MSHA, the U.S. Department of Labor Solicitor’s Office, and OSHA state plans were present.

The morning started with comments from Kate O’Scannlain, the Solicitor of Labor. Ms. O’Scannlain started the conversation by reiterating the goal of the Solicitor’s office over the past several years: working with employers and counsel in a collaborative and cooperative manner to ensure employee safety. Ms. O’Scannlain continued by setting out the further goals of the Solicitor’s office: working fairly and transparently, understanding the critical role counsel plays in ensuring employee safety and health. Next, Ms. O’Scannlain set out OSHA’s and the Solicitor’s office goals for fiscal year 2020: a focus on enforcement of the crystalline silica standard in general industry, maritime, and construction; a continued focus on improving trenching and excavation safety; addressing companies the Solicitor’s office interprets to be “chronically refusing” to comply with OSHA regulations; and working with the healthcare industry to improve workplace violations protections for its workers as it relates to employee/patient interactions.

Next, we heard from Patrick Kapust, who recently assumed OSHA’s Directorate of Enforcement after the departure of Tom Galassi at the end of 2018. Mr. Kapust discussed OSHA’s updated inspection weighting system, which is aimed at assuring resources are allocated in the most efficient manner possible, and answered questions related to OSHA’s Severe Violator Enforcement Program (SVEP). The majority of questions from the audience related to removal from the SVEP list, which can damage an employer’s reputation and result in total black-listing in some industries. Employers asked how they can be removed from the SVEP list if they settle with OSHA in a way that ensures the employer no longer meets the criteria for inclusion in SVEP (as OSHA will not agree to explicit language removing the employer from SVEP). Mr. Kapust also reminded the audience that submission of electronic reporting data was due on March 2, 2020 and OSHA would looking to issue violations for late-submitters in mid-2020. Mr. Kapust discussed the success of OSHA’s “Serious Injury Reporting” (SIR) initiative that stemmed from the 2015 changes to OSHA’s reporting requirements. OSHA conducted a verification of 100 employers to determine if they were providing truthful and accurate on their “Rapid Response Investigation” (RRI) form, finding that employers provided accurate information in 98 out of 100 cases.

Finally, Mr. Kapust discussed the active role OSHA is taking in the current Coronavirus (COVID-19) situation, working with the Department of Health and Human Services and providing information to CDC and NIOSH. At this point, OSHA has already issued approximately 20 informal complaint letters to employers related to COVID-19 concerns. Mr. Kapust also confirmed what has always been the case: while CDC is not recommending use of surgical masks or dust masks to protect against transmission of Coronavirus, use of such masks (as long as they do not form tight seal and a negative pressure) is not covered under OSHA’s Respiratory Protection Standard (1910.134). Therefore, employers do not need to provide employees who choose to wear such masks with Appendix D.

We then heard from a panel discussing recent OSHRC decisions involving the General Duty Clause, use of Specialty Contractors, and Repeat citations. According to the panel, a recent case under OSHA’s General Duty Clause affirmed what most had suspected for a long time: that evidence of implementation of abatement makes it harder for employers to prove that there is no feasible abatement. This is the classic “do no good” situation: the employer wants to abate the hazard but does not want to provide OSHA with proof that a particular type of abatement is feasible.

The panel also discussed employer reliance on specialty contractors in construction, confirming that the hiring employer needs to make a reasonable level of inquiry into the health and safety practices of the specialty contractor to establish reasonable reliance upon the expertise of the specialty contractor. Finally, the panel discussed two recent decisions related to Repeat citations and how OSHA can prove substantial similarity and business continuity.

Finally, we heard from a panel of OSHRC and MSHRC commissioners regarding trends in occupational safety and health and mine safety and health. It was the first time all three OSHRC commissioners and all five MSHRC commissioners had spoken together on a panel at an Occupational Safety and Health Law Meeting. The commissioners offered practice tips regarding persuasive brief writing, oral arguments, and petitions for reconsideration (in MSHA).

We look forward to tomorrow’s program, which includes: professionalism and civility in OSHA/MSHA practice, a discussion on opioids in the workplace, the role of technologies in safety and health programs, an update on recent Executive Orders affecting occupational safety and health, and a panel on updates to OSHA’s Process Safety Management standard.

More to come from the conference tomorrow…

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, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: Given the fast moving fact and legal issues surrounding the 2019 Novel Coronavirus (COVID-19), Seyfarth has established a website to keep employers up to date on the latest developments

To update employers on the latest information on Coronavirus, we have prepared a website dedicated to the latest information and materials on the COVID-19. The Seyfarth page provides updates, blogs, and articles on the challenges faced by employers in light of the development of the spread of the virus. In addition, the website materials contain links to FAQs and presentation slides with practical recommendations for employers in light of the potential pandemic and actions to be as should the virus spreads.

Note also that the materials form our comprehensive webinar are available. See the Coronavirus webinar presentation slides and the presentation recording.

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 Counseling & Solutions Teams.

By Rebecca A. Davis, Brent I. Clark, Patrick D. Joyce, Ilana R. Morady, and Kay R. Bonza

Seyfarth Synopsis: As an early and aggressive response to potential threats related to the novel coronavirus disease, now identified as COVID-19, the United States Environmental Protection Agency (EPA) activated its Emerging Viral Pathogen Guidance for Antimicrobial Pesticides (Guidance).

The Guidance, first developed in 2016, provides a process to enable the use of certain EPA-registered disinfectant products against emerging pathogens, such as SARS-CoV-2, the pathogen which causes the disease known as COVID-19, that are not otherwise identified on the product label. If a registrant already holds a “pre-qualified emerging viral pathogen designation,” then respecting COVID-19, it can provide an efficacy statement on the efficacy of a product to disinfect SARS-CoV-2 (that is, protect against COVID-19) in technical literature issued to health care facilities and medical providers, and in publicly available resources such as non-label-related websites, consumer information services, and social media sites.

The efficacy criteria is based on the ease with which the type of virus is inactivated by the disinfectant. Specific to SARS-CoV-2, the disinfectant must be EPA-approved as a hospital/healthcare or broad spectrum disinfectant; the disinfectant must already be approved by EPA for one small or one large non-enveloped virus (viruses that are generally more difficult to kill or inactivate); and the EPA-approved label must contain emerging pathogen “terms of registration” language describing the emerging pathogen claims the manufacturer can make. SARS-CoV-2 is an enveloped virus, meaning it has a membrane wrapped around it, which makes it easier to kill with the appropriate disinfectant product than small or large non-enveloped viruses.

Registrants that don’t meet the criteria set forth in the Guidance, but who make claims related to inactivation of SARS-CoV-2 may face enforcement actions and stiff penalties for distributing mislabeled pesticides.

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

By Benjamin D. Briggs, Mark A.Lies, II, and Daniel R. Birnbaum

Seyfarth Synopsis: By now, the worldwide health authorities and media have publicized the 2019 Novel Coronavirus (COVID-19) (sometimes called Coronavirus) (the “virus” or “disease”) that has been first identified in Wuhan, Hubei Province, China. The United States has experienced a growing number of cases of the virus and it is likely only a matter of time before the disease surfaces in more cases throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

During this webinar program we will update employers about the latest information on Coronavirus, which has now been considered a potential pandemic. Attendees will be provided with an overview of the new challenges faced by employers in light of the development of the spread of the virus. Finally, the program will provide practical recommendations in light of a potential pandemic and actions to be taken as the virus spreads..

The webinar will take place on Monday, March 2, 2020, from:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Please Register Here.

If you have any questions, please contact Cassie Peterson at clpeterson@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental practice.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By Jennifer L. Mora

Seyfarth Synopsis: As we reported here, the CBD (cannabidiol) craze is sweeping the nation. By 2022, it is expected to be a $22 billion per year industry. That said, if a CBD product has a concentration of more than 0.3% of tetrahydrocannabinol (THC), an amount generally viewed to be sufficient to produce a psychoactive effect, then it is an unlawful Schedule I controlled substance under federal law. Problems arise when employees test positive for THC but then claim to be using a “THC-free” or “pure CBD” product. If the product has less than 0.3% of THC, and the employee isn’t smoking or using other marijuana products, we generally would expect the employee’s drug test to return a negative test result. This quagmire has resulted in employers struggling to determine the impact of these products on their workplaces. Fortunately, some employers subject to certain regulatory requirements as they relate to drug and alcohol testing sometimes benefit from clear agency guidance.

Indeed, on February 18, 2020, the United States Department of Transportation published a bulletin addressing “DOT Office of Drug and Alcohol Policy and Compliance Notice,” which follows a previous notice it had released regarding its position on medical marijuana. With respect to medical marijuana, DOT wrote in a previous bulletin:

Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

In the new bulletin focusing on CBD, DOT wrote that it does not require testing for CBD but also recognized the problem with some CBD products having enough THC for an employee’s drug test to report a positive marijuana test result. The bulletin states:

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include:  pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

DOT-regulated employers should consider reviewing their current policies and practices to ensure compliance with DOT regulations, including the drug and alcohol testing rules in Part 40 and the bulletins that specifically address medical marijuana and CBD. In addition, employers in all industries may need to consider:

  • revising their policies to address CBD use;
  • training their managers and supervisors on how to address situations where an employee defends a positive drug test by claiming use of CBD;
  • educating employees about CBD; and
  • having a conversation with their drug testing providers about CBD and the lab’s drug testing and reporting processes.

Seyfarth Shaw will continue to monitor legal developments in this dynamic area of the law.

By Mark A.Lies, II, Brent I. ClarkDaniel R. BirnbaumIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA has issued guidance on protecting workers from exposure to 2019 Novel Coronavirus (2019-nCoV or Coronavirus).

Faithful readers are already familiar with our previous dispatches, including Chinese Coronavirus Outbreak—What Employers Need to Know; Coronavirus: Employer Liability Issues; Legal Update & January 6, 2020 Webinar–Coronavirus: Employer Liability Issues; and, of course, our Coronavirus INFORMATION and FAQs.

Now, Cal/OSHA has adopted guidance that covers California-specific safety requirements under its Aerosol Transmissible Diseases (ATD) standard.  (In contrast,  federal OSHA has no specific standard for regulating Coronavirus; rather, it generally regulates the potential hazard of Coronavirus via the “General Duty Clause” of the OSH Act, which requires employers to furnish workers with a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.)

California’s ATD standard requires covered employers to protect workers from diseases and pathogens transmitted by aerosols and droplets. The ATD standard primarily applies to health care facilities, but also applies to laboratories, public health services, police services, and other locations where employees are reasonably anticipated to be exposed to confirmed or suspected cases of aerosol transmissible diseases. Covered employers must have an “ATD Exposure Control Plan,” with procedures to identify Coronavirus cases or suspected cases as soon as possible and protect employees from infection.

California’s ATD standard also requires covered employers to protect employees from the Coronavirus through

  • training on topics such as signs and symptoms of the disease and modes of transmission,
  • engineering controls such as “airborne infection isolation rooms or areas, exhaust ventilation, air filtration and air disinfection,”
  • work practice controls such as “procedures for safely moving patients through the operation or facility, handwashing, personal protective equipment donning and doffing procedures, the use of anterooms, and cleaning and disinfecting contaminated surfaces, protective equipment, articles and linens,”
  • personal protective equipment, and
  • medical services including infection determination and treatment.

Laboratory operations are subject to additional requirements, including the CDC’s Interim Laboratory Biosafety Guidelines for Handling and Processing Specimens Associated with 2019 Novel Coronavirus (2019-nCoV).

Cal/OSHA reminds all employers and workers that any suspected cases of Coronavirus must be promptly reported to the local public health department.

The California Department of Public Health has updated information on Coronavirus and reporting requirements. The Centers for Disease Control and Prevention has also posted specific information for health care workers and laboratory settings.

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) TeamWorkplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

Edited by Elizabeth Levy

By James L. CurtisMark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: In its introduction to its New Active shooter training materials, the Illinois State Police note that “civilians that are present at any given incident are the true first responders.”

The Illinois State Police (ISP) have developed and are making publically available a training seminar on the civilian response to active violence and other critical incidents. The seminar topics include Active Shooter scenario, See Something – Say Something, Emergency Action Plans, and the Run – Hide – Fight response.

In its materials, the ISP defines critical incidents as those that may occur at any location (including the workplace), that may impact large numbers of victims, and may be man made, naturally occurring, and may be survivable in many cases.

The ISP summarize thier training, saying that “you can survive.”  It depends on individual mental preparation, having a plan, situational awareness, and actions.

Employers will be wise to develop workplace violence prevention plans and train employees on how to respond to active shooter incidents.

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 Mark A.Lies, II and Daniel R. Birnbaum

Seyfarth Synopsis: By now, the worldwide health authorities and media have publicized the 2019 Novel Coronavirus (2019-nCoV) (sometimes called Coronavirus) (the “virus” or “disease”) that has been first identified in Wuhan, Hubei Province, China. Although the United States has only experienced several cases of the virus, it is only a matter of time before the disease surfaces in more cases throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

During this webinar program we will inform employers about current information on Coronavirus available from the CDC, WHO, and other health organizations. In addition, attendees will be provided with an overview of the potential legal liabilities associated with employees who may contract the disease. Finally, the program will provide practical recommendations to avoid potential employee exposure from the disease and actions to be taken in the event that an employee actually contracts the disease.

The webinar will take place on Thursday, February 6, 2020, from:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Please Register Here.

If you have any questions, please contact Cassie Peterson at clpeterson@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental practice.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By Mark A. Lies, II and Adam R. Young

Seyfarth Synopsis: OSHA facility visits and corresponding employee interviews can be a vexing scenario. OSHA employee interviews are a source of OSHA monetary citations. Unfortunately, most employers do not realize this potential source of liability and do not prepare their employees for the interviews. In their recent article on the topic, Mark and Adam offer some thoughts and potential recommendations for employers to prepare their employees for interviews.

Mark Lies and Adam Young have recently published their article on OSHA Employee Interviews-Leveling the Playing Field, in Concrete Openings, the official magazine of the Concrete Sawing and Drilling Association (CSDA).

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. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2020 increases to MSHA civil penalties.

The DOL has finalized the 2020 inflation adjustments, which will nudge the penalties up 1.764%.  85 Fed. Reg. 2292 (Jan. 15, 2020).

Under the 2020 rule, the new MSHA civil penalties for some of the most common citation types will be:

2019 Penalties 2020 Penalties
104(a) Regular Assessment: $135 -$72,620 $137 – $73,901
Flagrant Violations: $266,275 (maximum) $270,972 (maximum)
104(d)(2) Unwarrantable Failure Withdrawal Order: $4,840 (minimum) $4,925 (minimum)
104(b) Failure to Correct : $7,867 (maximum) $8,006 (maximum)

The new MSHA penalty amounts are applicable to MSHA citations issued after January 15, 2020, for violations occurring after July 15, 2019.

Going forward, DOL is required to continue 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.