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By David S. Wilson and Joshua A. Rodine

Seyfarth Synopsis: The California Supreme Court unanimously held that while claims brought by an employee’s spouse for COVID injury are not barred by the Workers’ Compensation Act’s (WCA) exclusivity provision, policy considerations cautioned against imposing a tort duty to the members of an employee’s household. Kuciemba v. Victory Woodworks, Inc.

The Facts

 On May 6, 2020, Robert Kuciemba began working for Victory Woodworks, Inc. (Victory) at a construction site in San Francisco. Two months later, and without taking the required precautions as outlined in San Francisco COVID-19 health ordinance, Victory transferred a group of workers to the San Francisco site from another site where they may have been exposed to COVID. After being required to work in close contact with these new workers, Kuciemba was infected with the virus. Kuciemba then transmitted the virus to his wife, who was hospitalized for several weeks.

In October 2020, the Kuciembas sued Victory and asserted several tort claims. The District Court granted Victory’s motion to dismiss, concluding that (1) claims that Mrs. Kuciemba contracted COVID through direct contact with Kuciemba were barred by the WCA’s exclusive remedy provision, and (2) Victory’s duty to create a safe workspace did not extend to non-employees. The Kuciembas appealed to the Ninth Circuit, which then sought the California Supreme Court’s input on these two questions.

The California Supreme Court Decision

The Court first considered whether the WCA’s exclusivity provision barred Mrs. Kuciemba’s negligence claim. It concluded that her claim could proceed, even though her COVID infection resulted directly from her husband’s infection, which he sustained while on the job. The Court noted that while the derivative injury rule usually bars lawsuits from third parties arising out of a workplace injury (e.g., loss of consortium), the pertinent question was not whether an employee’s work-related injury was a “but for” cause of Mrs. Kuciemba’s infection; rather, the proper inquiry is whether the third party claim is “legally dependent” on the employee’s injury. Since Mrs. Kuciemba’s COVID infection and hospitalization were not legally dependent on her husband experiencing symptomatic COVID, her claim was not barred under the WCA.

Since the claim was not barred, the Court then addressed whether Victory’s duty to create a safe workplace extended to the spouses of its employees. While the Court noted that several factors weighed in favor of establishing such a duty, it ultimately decided against it.

The Court’s rationale was twofold. First, it emphasized that recognizing a duty of care to nonemployees in this situation would impose too heavy a burden on both employers and society in contravention of public policy. It explained that “[b]ecause it is impossible to eliminate the risk of infection, even with perfect implementation of best practices, the prospect of liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public.” And the precedent of such a duty, “might cause some essential service providers to shut down if a new pandemic hits.”

In addition, the imposition of a duty to prevent COVID infections of household members would greatly burden judicial economy. “Imposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings.” For example, the causation of a COVID infection would be virtually impossible for an employer to refute at the pleading stage, since a plaintiff need only allege plausible case theory. The Court closed by pointing out that “[i]f ever there was ever a ‘floodgates’ situation, this is it.” In short, while infections of this sort are foreseeable, the ramifications of extending a tort duty justify a departure from the default rule of liability.

What Kuciemba Means for Employers: 

 While this case’s reach is partially limited by the extraordinary nature of the COVID pandemic, the fact that the Court placed clear limits on workplace COVID exposure claims is a welcome result. Furthermore, the decision is beneficial to employers in relation to the Court’s language regarding consideration of the societal effects of overbroad workplace liability and the unmanageability of similar claims.

By Hoorya R. Ahmad and Patrick D. Joyce

Seyfarth Synopsis: Effective July 17, 2023, employers with outdoor workers in the state of Washington will be required to follow revised heat illness prevention rules. The revised rules modify Washington’s long-standing 2008 rule and expand employees subject to the rule’s protection. Employers should review the required Washington State Accident Prevention Programs to ensure their programs contain all of the elements required by the revised heat illness prevention rule before July 17, 2023.

Washington has a long-standing Outdoor Heat Exposure rule, first implemented in July 2008, that only covers certain industries during limited portions of the year. In response to the extreme heat wave experienced in the Pacific Northwest in early summer of 2021, the Washington State Department of Labor & Industries (L&I) adopted a broader set of emergency temporary rules on July 9, 2021 to address extreme high heat procedures covering a larger group of employers, with requirements for preventative cool-down rest, shade, and mandatory cool-down rest periods at 100 degrees Fahrenheit. Last summer, in another effort to prevent and reduce heat-related illness and injury, L&I issued another emergency temporary rule, which was in effect between June 15, 2022 and September 29, 2022.

On June 27, 2023, L&I adopted updates to the existing Outdoor Heat Exposure rules, which will become permanent as of July 17, 2023. The updates are presented as a response to rising temperatures in Washington State, which have resulted in an increase in heat-related injuries in outdoor workers. L&I aims to protect outdoor workers by requiring employers to implement several detailed measures such as: access to cool drinking water; cooling areas; communication tools and observation of employees, including buddy systems to help detect and respond to over-heating; and requiring employees to self-monitor and take mandatory cool-down breaks.

The revised rules apply year-round to all employers with employees performing work in an outdoor environment, with trigger temperatures of 52 and 80 degrees Fahrenheit depending on the type of clothing worn by the employee.

Key Additions, Changes, and Clarification to the “New” Permanent Heat Rules

  • The rules apply to all outdoor workers when exposed to outdoor heat year-round and not just May – September, as with the prior version of the Outdoor Heat Exposure rule.
  • Outdoor temperatures action levels are reduced from 89°F:
    • 52° Fahrenheit for employees wearing non-breathable clothes including vapor barrier clothing or PPE such as chemical resistant suits; and
    • 80° Fahrenheit for all other clothing
  • New and revised defined terms:
    • Broadens definition of “acclimatization”, referring to the body’s temporary adaptation to work in heat that occurs as a person is exposed to it over a period of 7-14 days. Acclimatization can be lost after 7 consecutive days away from work in the heat.
    • Adds definition of “buddy system”- where individuals are paired or teamed up into work groups so each employee can be observed by at least one other member to monitor and report signs and symptoms of heat-related illness.
    • Adds definition for “Risk factors for heat-related illness” to include environmental factors such as air temperature, relative humidity, air movement, radiant heat from the sun and other sources; workload and work duration; PPE and clothing worn by the employees; and personal factors such as age, medications, physical fitness, and pregnancy.
    • Adds definition of “Shade” to mean “[a] blockage of direct sunlight.” Shade may be provided by natural or artificial means. Shade is not adequate when heat in the shaded area defeats the purpose of shade, which is to allow the body to cool.
  • Increased employer and employee responsibilities:
    • An outdoor heat exposures safety program must be included in the employer’s written accident prevention program in a language that the employees understands. The outdoor heat exposure safety program must include at a minimum:
      • procedures for providing sufficiently cool drinking water;
      • shade or other sufficient means to reduce body temperature;
      • emergency response procedures for employees demonstrating signs or symptoms of heat-related illness;
      • acclimatization methods and procedures;
      • high heat procedures; and
      • the specific method used by the employer to closely observe for signs and symptoms for heat-related illness.
    • Employers must utilize mandatory preventative cool-down rest periods when employees begin to feel overheated. Must be paid unless taken during an unpaid meal break.
    • Employers must acclimatize all employees not acclimatized to the heat by closely observing them for 14 consecutive days, including new employees, those returning from absences of greater than 7 days, and all workers during a “heat wave.” Close observation is defined as regular communication with employees working alone, such as by radio, cellphone, a mandatory buddy system, or other effective means of observation. Heat wave is defined as any day in which the predicted high temperature for the day will be at least the trigger temperature for heat protection measures (80°F or 52°F) and at least 10 degrees Fahrenheit higher than the average high daily temperature in the preceding five days.
    • Access to shade. Employers must provide employees one or more areas of shade close to working area that is large enough to accommodate all employees during a meal or rest period.
    • Drinking water must be suitably cool in temperature, and there must be sufficient quantities for each worker to drink.
  • High heat procedures. Mandatory 10-minute cool-down rest period every two hours when temperatures exceed 90 degrees Fahrenheit, and 15 minutes every hour when temperatures are at or above 100 degrees Fahrenheit. Cool-down periods must be paid unless taken during an unpaid meal break. Employers must closely observe employees for signs and symptoms of heat-related illness at and above 90 degrees Fahrenheit.
    • Emergency response operations are excluded from mandatory cool-down rest periods when aiding firefighting, protecting public health and safety, or restoring or maintaining critical infrastructure at risk; but must be permitted a cool-down period if needed.
  • Responding to signs and symptoms of heat-related illness. Employers must ensure effective means of communication so that employees at the work site and their supervisors can contact each other to report signs and symptoms of heat-related illness and get medical attention when necessary. Cellular devices for this purpose may be used only if reception in the area is reliable.
  • Information and training. Employees and supervisors must be trained on appropriate first-aid and emergency response procedures prior to performing outdoor work when occupational exposure to heat might occur, and at least annually after the initial training.
    • Employees must receive “effective training” on the following topics: environmental factors and other work conditions (such as workload, work duration, PPE) that contribute to the risk of heat-related illness; general awareness of personal factors that may increase susceptibility to heat-related illness such as physical fitness, medical conditions, alcohol use, pregnancy, and previous heat-related illness.
    • Explain to employees the concept of acclimatization and the importance of frequent cool-down rest periods; gradual increase of work duration in the heat; mandatory cool-down rest periods when outdoor temperatures reach or exceed 90 degrees Fahrenheit; the employers procedures for providing shade or other sufficient means to reduce body temperature, including location of such means and how the employee can access them; and the employer’s procedures for close observation of employees for signs and symptoms of heat-related illness.
    • Supervisor training must include the importance of considering the use of engineering or administrative controls such as air-conditioning and scheduling work during the cooler hours of the day in order to reduce employees’ exposure to heat.

One of the most significant change in the revised rule is that the rule now applies year round. In addition, employers must draft a heat exposure safety program before July 17, 2023, take steps to quickly provide training to supervisors and employees on its heat-prevention and response plan and update its written literature to include those response plans. Furthermore, after the initial training provided to employees and supervisors, annual training is required of supervisors.

Because of the urgency with which L&I adopted the rules, making them effective less than 30 days from adoption, employers would be wise to work with outside counsel and ensure that the newly-required heat exposure safety program, included within the mandatory Accident Prevention Program, complies with this revised rule.

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By Ilana Morady, Patrick D. Joyce, and Benjamin D. Briggs

Seyfarth Synopsis: On June 20, 2023, the California Department of Public Health (CDPH) updated its guidance to local health departments on the definition of a COVID-19 outbreak. The new definition changes the timeframe for counting COVID-19 cases that make up an outbreak from 14 to 7 days. The CDPH change necessitates that the definition of an outbreak for purposes of Cal/OSHA’s non-emergency COVID-19 standard also changes. Now, an employer need only implement the more stringent outbreak provisions of the COVID-19 standard if there have been at least three COVID-19 cases within an exposed group during a 7 day period.

At this stage in the COVID-19 pandemic, and under the more relaxed Cal/OSHA COVID-19 non-emergency standard that went into effect earlier this year, most California employers have a smoothly running COVID-19 prevention program in place. But the prospect of an “outbreak” still causes dread among employers.

The outbreak provisions under the new standard require implementation of various COVID-19 mitigation protocols that are costly and challenging to administer, and that may cause extreme resistance in the employee population. In addition, the analysis of whether an “outbreak” exists, and which employees are subject to the stricter protocols (the “exposed group”—essentially people in the presence of a COVID-19 case anywhere on the premises during their infectious period), is confusing.

Since the early days of the pandemic, Cal/OSHA’s regulations have required outbreak protocols when there have been three or more COVID-19 cases within an exposed group who visited the workplace during their infectious period at any time during a 14-day period. However, the current Cal/OSHA standard was written to be automatically updated to reflect CDPH outbreak changes.

What Changed?

On June 20, 2023, the CDPH quietly updated its guidance on the definition of outbreaks in non-healthcare settings by taking the timeframe for counting COVID-19 cases in a particular exposed group down from 14 days to 7 days. This change means that the Cal/OSHA outbreak requirements now only apply when there have been three or more COVID-19 cases within an exposed group during a 7 day period. CDPH’s stated reason for the change is “based on the shortened disease incubation period with more recent SARS-CoV-2 variants.​”

The change should make it much easier for employers to avoid hitting outbreak status, and triggering the accompanying restrictions. But, employers still need to look at a 14-day period for getting out of outbreak status, i.e. Section 3205.1 applies until there are one or fewer COVID-19 cases detected in the exposed group for a 14-day period. Also, the major outbreak provisions, which require even more mitigation controls and are triggered by 20 or more employee COVID-19 cases in the exposed group within a 30-day period, remain unchanged from the 14-day counting window (they are not tied to the CDPH changes).

What Does Our Business Still Need To Do If There Is An Outbreak?

Now, if your business has 3 or more COVID-19 cases in an exposed group during their infectious period in a 7-day period, it will be in outbreak status. During an outbreak, employers must still:

  • Immediately make testing available to employees in the exposed group for the outbreak and continue to make tests available at least weekly until there are one or fewer new COVID-19 cases detected in the exposed group for a 14-day period.
  • Ensure that all employees who had close contacts and remain at work take a COVID-19 test within three to five days after the close contact, and exclude from the workplace employees who test positive for COVID-19.
  • Exclude employees who do not take a COVID-19 test within three to five days after the close contact until the return-to-work requirements for COVID-19 cases are met.
  • Perform a review of potentially relevant COVID-19 policies, procedures, and controls and implement changes as needed to prevent further spread of COVID-19 as soon as the outbreak provisions apply, and then periodically thereafter.
  • Implement ventilation changes to mechanical ventilation systems including increasing filtration efficiency to at least MERV-13, or the highest efficiency compatible with the ventilation system. Evaluate whether HEPA air filtration units are needed.
  • Require employees in the exposed group, regardless of vaccination status, to wear a face coverings when indoors, or when outdoors and less than six feet from another person, unless an exception applies.

Workplace Solutions

While many companies may have put these issues somewhat out of sight and out of mind, it is important to remember that restrictions remain as employees may be traveling and bringing illnesses back to the workplace. Outbreaks are still happening, but this change helps blunt some of the impact. Stay tuned for updated guidance and developments, and don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Coby Turner

By: Andrew Scroggins and Benjamin Briggs

On May 19, 2023, both Houses of the Illinois General Assembly passed HB2862, which amends the Day and Temporary Labor Services Act, 820 ILCS 175/. On June 16, 2023, the bill was sent to the Governor, with an effective date that is the later of July 1, 2023, or the date it is signed by the Governor. If the Governor has not signed or vetoed the bill by August 15, 2023, it will become law automatically.

The bill makes significant changes to the Act that will impact both staffing agencies that employ day or temporary laborers and the clients who engage their services. As detailed below, the amendment:

  • Requires that laborers assigned to a client for more than 90 calendar days receive “equal pay for equal work,” including benefits, as compared to direct employees of the client, and that clients share information with the staffing agency sufficient to ensure that requirement is met.
  • Requires notice to laborers when the assignment is to a site experiencing a strike, lockout, or “other labor trouble.”
  • Requires staffing agencies to make inquiries about safety at the client worksite, advise the client of any existing job hazards, provide training to its laborers placed on assignment, and provide information about the training to its client.
  • Requires clients to disclose information about anticipated job hazards, review the staffing agency’s training, provide training tailored to the site, and permit the agency to visit the site to observe safety practices.
  • Increases fees charged to staffing agencies and penalties for staffing agencies and clients who commit notice violations.
  • Provides third-party organizations the ability to file civil actions to enforce compliance with the Act.

Covered “Day and Temporary Labor”

The Act’s definition of “day and temporary labor” remains unchanged. As before, it refers to “work performed by a day or temporary laborer at a third party client,” but specifically excludes work “of a professional or clerical nature.” (820 ILCS 175/5.) In other words, staffing agencies that assign their employees only to professional or clerical roles, or their client companies that use temporary staffing only for professional or clerical work need not be concerned with the Act’s requirements.

As before, staffing agencies that place day and temporary laborers on assignment must register with the Illinois Department of Labor. (820 ILCS 175/45.) The process and requirements for doing so have not changed, but the amendment increased the fees charged for registration. The amendment also gives the Illinois Attorney General the authority to ask a circuit court to suspend or revoke registration “when warranted by public health concern or violations” of the Act (820 ILCS 175/50) and increases by threefold the amount of penalties that may be assessed for violations discovered during audits. (820 ILCS 175/70.)

Also as before, laborers who are contracted for a single day assignment must be provided a Work Verification Form. (820 ILCS 175/30.) The client is responsible for ensuring this requirement is satisfied, and the penalties for failure to provide the form have increased. Before, clients were subject to a civil penalty of no more than $500; now, the penalty may range from $100-$1,500. Clients are also responsible for ensuring that any staffing agency that provides covered laborers has registered with the state and may be penalized $100-$1,500 for each day it contracts with a staffing agency that should be registered but has not done so. (820 ILCS 175/85.)

Laborers On Assignment More Than 90 Days Are Entitled To “Equal Pay For Equal Work”

For covered laborers, the Act imposes significant new requirements that will require coordination between staffing agencies and their clients. Under the new law, laborers who have been on assignment for more than 90 calendar days are entitled to “equal pay for equal work” as performed by those employed directly by clients. (820 ILCS 175/42.) The language of the amendment presents numerous practical challenges for both staffing agencies and clients.

The first challenge is defining “equal work.” Under the Act, the laborer must be paid at least as much as the client’s “lowest paid directly hired employee:”

  • Who has “the same level of seniority at the company”
  • Who is “performing the same or substantially similar work on jobs the performance of which requires substantially similar skill, effort, and responsibility”
  • Where the work is “performed under similar working conditions.”

If a “comparative employee” is not identified, then the laborer is to be paid at least the same amount as “the lowest paid direct hired employee at the [client] with the closest level of seniority.”

A second challenge is defining “equal pay.” Under the Act, equal pay includes both “the rate of pay and equivalent benefits.” However, staffing companies “may pay the hourly cash equivalent of the actual cost benefits in lieu of benefits required.” This would require the client to share information about the benefits it provides and the value of those benefits. Further complicating this analysis is the fact that the Act does not explain what “benefits” are included. For example, do the requirements apply only to health and welfare benefits, or are other fringe benefits included? And what about staffing agencies that offer health and welfare benefits to their employees: are they required to compare the value of their plans to those offered by their clients and to offer pay to make up any difference?

Typically, only the client would be in possession of much of the information needed to make these assessments, and under the Act clients are “obligated to timely provide” the staffing agency “with all necessary information related to job duties, pay, and benefits of directly hired employees necessary” for the staffing agency to comply. A client who fails to provide the information has committed a “notice violation” for which it may be liable for compensatory damages, a penalty charge in an amount up to $500, and attorney’s fees and costs. (820 ILCS 175/95.)

New Jersey passed a law with similar requirements earlier this year. (N.J.P.L.2023, c.10.) The constitutionality of the law is being challenged in federal court.

Laborers Must Receive Advance Written Notice Of Job Site Strikes, Lockouts, Or “Other Labor Trouble”

The amended Act includes a new section aimed at giving laborers the right to refuse assignment to a site where there is a labor dispute. (820 ILCS 175/11.) Specifically, if the assignment is to “a place where a strike, a lockout, or other labor trouble exists,” then the staffing agency must provide “a statement, in writing” to the laborer no later than the time of dispatch. The writing may be electronic, but the staffing agency bears the burden to show the notice was in fact provided. Moreover, that written statement must be provided “in a language that the [laborer] understands” that informs the laborer “of the labor dispute” as well as the laborer’s “right to refuse the assignment, without prejudice to receiving another assignment.”

The phrase “other labor trouble” is vague, and the Act fails to offer any explanation what types of activities other than a strike or lockout might need to be communicated to laborers. The Act also fails to explain how much detail must be provided to “inform” the laborer of the dispute.

As a practical matter, staffing agencies and clients will need to cooperate to share information in order to comply with these new requirements. Nonetheless, the Act places accountability for any violations on the staffing agency. The Act treats every instance of failure to provide satisfactory notice as a separate violation. Here, too, the notice penalties include compensatory damages, a penalty charge in an amount up to $500, and attorney’s fees and costs. (820 ILCS 175/95.)

Both Covered Staffing Agencies And Clients Must Take Additional Action Regarding Safety

The amendment adds significant new provisions related to safety that will require staffing agencies and clients to take independent actions and to coordinate with each other.

Staffing agencies must “inquire” before any assignment begins to learn about the client’s safety and health practices at the workplace where the laborer will be assigned. This inquiry must include an assessment of safety conditions, worker tasks, and the client’s safety programs, and may include visiting the worksite.

If during the inquiry the staffing agency “becomes aware of existing job hazards that are not mitigated by the client company,” it must make the client aware, urge the client to correct the hazard, and document its efforts, and remove the laborer if the hazards are not corrected.

Staffing agencies also must provide “general awareness safety training for recognized industry hazards” that may be encountered at the client’s worksite. The training must be free for the laborer and provided in the laborer’s “preferred language.” The staffing company must maintain records of the date the training was delivered and the content of the training.

Staffing agencies also need to communicate these training efforts to their clients at the start of the contract between the two parties. This requirement includes providing a general description of the topics that were covered.

Finally, staffing agencies must provide laborers with information about how to report a safety concern at the workplace as well as the Illinois Department of Labor hotline number.

Clients face their own new requirements. Before any laborer begins work, the client must “document and inform” the staffing agency of any anticipated job hazards, and review the safety training that the staffing agency provided. The client must provide its own “specific training tailored to the particular hazards” at its worksite, document and maintain records of the training, and provide confirmation to the staffing agency within three days that the training was completed.

If the job tasks or work location change and new hazards are presented, then the client must inform both the staffing agency and the laborer, then provide new training and personal protective equipment before the new work begins.

The client also must allow the staffing agency to visit any worksite to observe and confirm the client’s training, and to obtain information about the job tasks, safety and health practices, and hazards at the site.

On the one hand, these new requirements generally align with the Temporary Worker Initiative guidance published by the Federal Occupational Safety and Health Administration (OSHA). However, that guidance has not been codified. The amendment to the Illinois law raises the stakes for staffing firms and their clients in Illinois and transforms what was once guidance into prescriptive obligations with attendant penalties for noncompliance. 

Third-Parties May File Private Actions To Enforce Compliance

The amendment also creates new rights for any “interested party,” which is defined broadly to include any “organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements.” (820 ILCS 175/5.)

These “interested parties” are now empowered to initiate civil actions against both staffing agencies and clients if they have a “reasonable belief” that there has been a violation of the Act within the preceding three years. The interested parties must first submit a complaint to the Illinois Department of Labor, which then advises the staffing agency or client of the complaint. However, even if the Department of Labor finds the complaint to be unjustified or outside of its jurisdiction, or if the staffing agency or client cures the alleged violation, the interested party will receive a notice of right to sue. An interested party that prevails in a civil action is entitled to 10% of the statutory penalties assessed, as well as its attorney’s fees and expenses incurred.

Conclusion

The Illinois General Assembly’s amendment of the Day and Temporary Labor Services Act imposes significant new obligations on staffing agencies and their clients, and provides little time to put in place the steps needed to comply. The General Assembly has left the Department of Labor flat-footed as well, and no regulations or guidance have been provided to clarify the often ambiguous terms added to the Act. Both staffing agencies and their clients should revisit their policies and practices in light of these new requirements, and aim to work cooperatively with each other to navigate these new requirements in good faith while awaiting further guidance how the Act should be construed. Staffing agencies and clients also should make sure that their services agreements include provisions that protect the confidentiality of the information each much share. If you need additional information, please do not hesitate to contact us.

By Adam R. Young and Mark A. Lies II

With the Biden Administration’s aggressive new generation of OSHA compliance officers and enforcement objectives, employers would be wise to develop a written program that incorporates all best practices for inspection management.  Attached is a link to an article outlining best practices for employers when faced with handling an OSHA inspection. 

Follow this link for the full article on this topic.

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

Seyfarth Synopsis: A Small Business Advocacy Review Panel for a potential OSHA standard to address Prevention of Workplace Violence in the Healthcare and Social Assistance sectors concluded on May 1, 2023. The Final Report is available here, with specific Findings and Recommendations here.

A Small Business Advocacy Review Panel (“Panel”) convened under Section 609(b) of the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, to address the potential for an OSHA standard concerning workplace violence (“WPV”) in healthcare and social assistance, similar to California’s existing standard.  The Panel continued a seven-year push by OSHA to evaluate WPV and the potential for a federal standard.  According to the panel’s findings, the healthcare industry’s 20.9 million employees face WPV at a rate six times higher than the rest of the American workforce, primarily resulting from violent behavior by patients, extended care residents, and visitors. On calls with stakeholders in preparation for the report, employers raised concerns about the quality of WPV programs in place (compliant with the draft framework for a WPV standard), increased costs from new overlapping regulations, and minimal potential effects in risk-reducing behavior.   For hospitals and many employers in the industry, the Joint Commission – a hospital accreditation body recognized by the Centers for Medicare & Medicaid Services –addresses workplace violence in the relevant industries.

The Panel recommended OSHA consider, among other items:

  • The need for a rule, given “existing regulations, guidance and accreditation standard on WPV prevention.”
  • Flexibility in the standard to allow employers to tailor their compliance approaches to the particular circumstances of their facilities.
  • The appropriate scope, including particular risks and concerns in various potentially-covered sectors.
  • “[T]he elements of [effective WPV training programs in healthcare and social assistance],” so OSHA can incorporate them into any standard or related guidance.
  • “[T]he recordkeeping requirement to make it clear that, while certain information should be recorded about an incident, there would not necessarily be a requirement for a separate form or format that employers would be required to use.”

We will continue to monitor this rulemaking and report on relevant updates.  In the meantime, we have blogged previously on this topic, and employers can review those postings for additional WPV insights. See for instance: National Retail Federation Free Webinar on Workplace Violence; National Safety Council Releases Workplace Violence Resources for Employers; OSHA Healthcare COVID-19 Rule Takes Priority over Heat Illness, Workplace Violence; CDC Guidance on Workplace Violence in Retail Associated with COVID-19, Customer Face Mask Enforcement; Illinois State Police Provide Training on Active Shooter, Workplace Violence; House Passes Legislation on Workplace Violence in Healthcare and Social Assistance; Commission Decisions Confirm that Employers Must Take Action to Protect Employees from Workplace Violence; Workplace Violence and Shootings in the Spotlight; OSHA and Title VII on Workplace Violence in Healthcare and Social Assistance; NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers; OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting; Healthcare Employers to Get Even More Attention from OSHA; OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers; CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders.

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 Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: As Canadian wildfire smoke spreads across the Northern United States, employers should review the CDC/NIOSH guidance on occupational exposure to wildfire smoke and implement effective measures to protect employees. 

Canadian forests continue to burn, with about 3.8 million hectares (9.4 million acres) burned at the time of this writing, roughly 15 times the annual average.  At least 100 million Americans have been affected by air quality alerts from the wildfire smoke.  For instance, New York City continues to record unhealthy level AQIs across the region (currently 117-165 near Manhattan). 

Wildfire smoke is made up of a complex mixture of gases and particles. As a wildfire burns, different compounds are released in the smoke, such as carbon monoxide, carbon dioxide, hydrocarbons, particulate matter (PM), benzene, acrolein, and aldehydes.

Though many Western OSHA state plans enforce specific rules relating to wildfire smoke, federal OSHA has no regulations and has issued no guidance on how best to protect workers from this specific hazards.  Federal OSHA’s General Duty Clause requires employers to provide a workplace free from recognized hazards likely to cause serious injury or death.  And the federal respiratory protection standards requires employers to protect employees from anticipated airborne hazards. According to the CDC, wildfire smoke has a “clear potential for such exposures to result in adverse health outcomes” including asthma exacerbations, bronchitis, and pneumonia.  Employers would be wise to take remedial action.  

NIOSH, a subagency under the CDC (and not part of OSHA), has advised employers to implement procedures to reduce exposures to smoke when necessary. If workers must work in areas with high levels of smoke, especially for long periods, or if a worker is sensitive to wildfire smoke and feels their health or safety is negatively impacted by smoke exposure, NIOSH suggests plans be implemented to reduce smoke exposure, including:

  • Relocate or reschedule work tasks to smoke-free or less smoky areas or times of the day,
  • Reduce levels of physical activity when possible, especially strenuous and heavy work,
  • Require and encourage workers to take frequent breaks in places that are free from smoke, and
  • Limit the worker’s smoke exposure by making accommodations for that worker to perform his/her duties indoors or in a location that reduces exposure to smoke, if possible. To create an indoor environment that reduces exposure to and protects the occupants from wildfire smoke, it is important that employers and building manager

In addition, a NIOSH Approved® respirator, such as a filtering facepiece respirator (FFR) N95® respirator, can be used to reduce exposure to airborne particulates from wildfire smoke when the recommendations listed above cannot be implemented and it is feasible to obtain respirators. Where there is no serious hazard, employers can offer employees the use of FFRs on a voluntary basis with only limited training (including Appendix D) and no other programs.  However, where the wildfire smoke is at sufficient level to create a serious hazard, the regulations require employers to mandate the use of respiratory protection.  Employers then must also implement a complex respiratory protection program with medical evaluations and fit tests for each employee who will use a respirator.  Federal OSHA has not dictated a standard for the AQI level where wildfire smoke becomes so unhealthy that employers should offer voluntary FFRs or must mandate the use of respirators. By comparison, Oregon regulations use AQI 101 as the threshold at which employers should offer FFRs on a voluntary basis, and AQI 251 as the threshold where employers must mandate the use of respirators for any outdoor work.

For more information on wildfire smoke, heat illness, or any other occupational safety and health topic, contact your Seyfarth Workplace Safety and Environmental attorney.

By Adam R. Young, Jennifer L. Mora, and Craig B. Simonsen

Seyfarth Synopsis: Across nationwide testing, marijuana positivity rates for 2022 reached 4.3% (up from 2.7% in 2017), with biggest gains found in states that legalized recreational marijuana. 

Impairment and related safety hazards have been disrupting the workplace resulting in lost time, absenteeism, safety hazards, and serious industrial accidents. We track annual positivity test reports from Quest Diagnostics, one of the country’s largest drug testing laboratories.  Quest’s recently released 2023 Drug Testing Index reveals that while positivity rates for some drugs declined, the rise in positivity rates for marijuana and amphetamine continues to climb.  Of the more than six million general workforce marijuana tests that Quest performed in 2022, 4.3% came back positive, up from 3.9% the prior year. Worse still, post-accident marijuana positivity of urine drug tests in the general U.S. workforce was 7.3%, an increase of 9% compared to 6.7% in 2021. While not entirely clear, it is possible that the widespread state legalization of marijuana has contributed to an increase in test positivity and also workplace safety hazards.

Scientific testing indicates greater likelihood of errors in judgment and workplace accidents where an employee is impaired by marijuana. A National Safety Council white paper continues to recommend a Zero Tolerance Policy for marijuana in safety-sensitive positions.  Federal OSHA further advocates for post-accident drug testing as a legitimate part of a root cause analysis to determine the cause of an accident.  Employers have struggled to address the hazard of marijuana impairment at work and how best to protect workplace safety.

A problem for employers is that none of the scientifically valid drug tests for marijuana definitively prove whether a person is impaired at or near the time of an accident or the time they provide a specimen for testing. Moreover, state and local marijuana laws are making it increasingly difficult for employers to even consider or act on a positive marijuana test result.  Accordingly, employers looking to address drugs and alcohol in the workplace should work with outside counsel to ensure compliance with their current drug and alcohol testing programs. 

We have blogged previously on his topic. See for instance Method and Madness Behind New California and Washington Cannabis Laws; New Jersey Recreational Marijuana Law Provides Significant Employment Protections to Marijuana Users; And the Winner of the 2020 Election Is…Marijuana!; National Safety Council Endorses Zero Tolerance Prohibition on Cannabis/Marijuana for Safety-Sensitive Employees; Illinois Marijuana Legislation Update: Senate Bill Would Protect Employers’ Rights; Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment; Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters; Marijuana Farm Employees Face Numerous Health Hazards; and New Jersey Cannabis Regulatory Commission Issues Guidance on “Workplace Impairment” Determinations.

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 A. Scott Hecker, Adam R. Young, Patrick D. Joyce, Mark A. Lies, James L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just announced a National Emphasis Program to prevent falls, the leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.

OSHA has indicated that the emphasis program will focus on reducing fall-related injuries and fatalities for people working at heights in all industries. OSHA considered that falls remain the leading cause of fatalities and serious injuries in all industries, so it determined that an increase in enforcement and outreach activities was warranted.

Despite the balanced application of the agency’s outreach, enforcement, and compliance assistance efforts, fatalities caused by falls continue to be a leading cause of death for all workers. A comparison of the Bureau of Labor Statistics (BLS) and OIS data between 2014 and 2021 revealed the following:

OSHA concludes that “the goal of this NEP is to significantly reduce or eliminate unprotected worker exposures to fall-related hazards in all industries that can result in serious injuries and deaths. OSHA’s goal will be accomplished by a combination of enforcement), outreach to employers, and compliance assistance. OSHA anticipates that most of the inspections will occur in construction because the majority of the fatal falls to lower levels each year occur on construction worksites.

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 Hecker, Adam R. Young, Patrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: On April 14, 2023, we attended a webinar presented by U.S. DOL Solicitor Seema Nanda, DOL Wage and Hour Division Principal Deputy Jessica Looman, DOL Occupational Safety and Health Administration Assistant Secretary Doug Parker, National Labor Relations Board General Counsel Jennifer Abruzzo, and U.S. Equal Employment Opportunity Commission Chair Charlotte Burrows.  The webinar addressed 1) what retaliation is and how each agency addresses it, 2) best practices for prevention, 3) best practices to respond to instances of retaliation, and 4) available resources.

Solicitor Nanda explained, despite nuances among the laws and standards enforced by the participating agencies, retaliation generally encompasses an employee’s engaging in protected activity, which results in an adverse action.  Adverse actions can include termination, confiscating immigration documents, threats, shift changes, reducing hours or responsibilities, blacklisting, demotion, isolation, and ostracizing – effectively any action dissuading an employee from raising a concern about a possible violation or engaging in other protected activity.  Protected activity may involve filing a complaint, planning or joining a lawsuit, complaining to a supervisor, or refusing to work.  Solicitor Nanda also represented that the Solicitor’s Office aims to engage with its agencies early in retaliation claims to seek, e.g., temporary restraining orders and to ensure every worker can exercise rights and participate in investigations.

Each participant described the laws they enforce and the circumstances they encounter when working through retaliation claims.  Specifically, OSHA’s Doug Parker explained the agency’s whistleblower program covers not only the OSH Act, but also 24 other laws covering product and food safety, fraud and financial issues, and transportation.

Solicitor Nanda labeled addressing retaliation in the workplace as a win-win.  Because it is illegal, it is a critical part of employer compliance, and by instituting anti-retaliation programs, employers can help employers avoid increased penalties and bad publicity.  Addressing retaliation can also improve the work environment, as employers who take retaliation prevention and response seriously can identify shortcomings and encourage employee engagement by reducing or eliminating fear of retribution for reporting issues.  The government takes retaliation so seriously because without employee participation in the enforcement process, agencies cannot effectively execute their missions.  Indeed, these agencies’ view retaliation as:

one of the greatest threats to workers being able to exercise the rights guaranteed to them under the law, and to the ability of agencies to protect the exercise of those rights and ensure compliance with our laws. As a result, preventing and addressing retaliation is a top priority across agencies

The presenters next shared recommendations for employers to implement best practices concerning prevention and response to retaliation.  They represented the recommendations are general, not mandatory, and do not interpret or create legal obligations.  But many derived from the work of the Whistleblower Protection Advisory Committee.

Assistant Secretary Parker kicked off a discussion concerning developing anti-retaliation programs and policies, identifying components of effective protocols to both prevent and respond to retaliation.

To prevent retaliation, employers should:

  • Provide training in plain, comprehensible language that employees can understand on: relevant laws and regulations; types of retaliatory acts; employees’ rights and obligations; and elements of the employer’s retaliation program.  Managers and supervisors should understand – and be provided examples of – what constitutes retaliation; how to deal with reports of retaliation and harassment; strengthen skills regarding de-escalation, conflict resolution, effective communication, and problem solving; and the consequences of retaliation.
  • Ensure accountability by having management take a leadership role in preventing and addressing retaliation.  Managers should set the tone, lead by example, hold themselves accountable, and empower workers.
  • Develop a complaint process that provides avenues for employees to raise concerns.  The process should provide for transparent evaluation, as well as fair, effective, and timely resolution of complaints.  Assistant Secretary Parker suggested employers should want robust anti-retaliation prevention and response programs in place because these policies are closely intertwined with substantive compliance with applicable laws and regulations.  Put another way, employees’ sharing concerns may facilitate employers’ ability to address potential safety and health shortcomings in their workplaces.
  • Maintain program oversight through ongoing monitoring of, e.g., the efficacy of anti-retaliation training, trends in complaints and subsequent resolutions, compliance with anti-retaliation policies, and numbers of worker reports to evaluate whether employees are coming forward with concerns.  Internal audits can be beneficial as well.
  • Evaluate policy and culture, including transparency surrounding working conditions and pay; potential chilling effects of safety incentive programs and employee monitoring; communications regarding the value of employees’ raising concerns; and no retaliation for employees who report alleged violations to the government.

To address incidents of retaliation, employers should

  • Implement a system, which workers trust, to receive and address complaints. 
  • Authorize appropriate personnel to respond to complaints, including providing remedies to employees. 
  • Establish independent reporting channels and ensure the confidentiality of reports to the extent practical, but do not impede government investigations or prevent employees from seeking other support or assistance
  • Investigate reports of retaliation promptly and thoroughly, ensuring reports are taken seriously and investigations are not tainted by preconceptions
  • Make sure the investigatory process is clear and is explained to the reporting employee.  Both the employee and management should be kept informed throughout investigation. 
  • Close the investigation respectfully and properly
  • Follow up, as needed, to maintain continued anti-retaliation protection for reporting employees.

When providing remedies to employees who report workplace concerns, employers should consider how to make employees whole, e.g., through reinstatement, by providing lost wages or other damages, and through disciplining supervisors who failed to follow retaliation policies.

All the participating government entities represented additional resources are available on their respective websites.  OSHA’s Assistant Secretary Parker referenced not only www.whisteblowers.gov, but also the agency’s materials on health and safety management programs and its safe and sound campaigns.

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.