By Brent I. Clark, James L. Curtis, Patrick D. JoyceA. Scott HeckerDaniel R. BirnbaumMelissa A. Ortega and Taylor Iaculla

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

The final day of the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting began with a panel of Judges and Commissioners from the Occupational Safety and Health Review Commission: the Honorable Cynthia Attwood and the Honorable Covette Rooney. Chief Administrative Law Judge Rooney discussed the Review Commission’s ongoing Administrative Law Judge settlement rates, which continue to hover near 92% for federal OSHA cases. For settlement conferences, the data reflected the shift towards in-person meetings with a minority of hearings held virtually. Chief Judge Rooney expressed a preference for in-person hearings as a Judge, but gratitude for the potential for remote hearings where necessary.

Chief Judge Rooney also announced that she will retire this coming July and we wish her the best after a long and storied career!

At the Review Commission level, in Fiscal Year 2023, the Review Commission directed 16 of 26 petitions for discretionary review, and decided 17 cases. For the current fiscal year, no decisions have been issued despite 7 of 12 being directed for discretionary review. Commissioner Atwood expressed concern that the Commission is currently “paralyzed” by its inability to issue decisions, as Commissioner Atwood is the only member serving on the three-member panel. Because the Senate has not confirmed the current nominee, Amanda Laihow, to the Commission, the Commission cannot issue any decisions or decide on almost all routine motions. Beyond this issue, Commissioner Atwood noted that the Review Commission has yet to receive its full budget from Congress, and is currently operating under a continuing resolution until March 22.

The second panel was a mock settlement mediation conference, mediated by the Honorable Christopher Helms, Administrative Law Judge with the Review Commission. The panel first discussed mandatory settlement proceedings under 29 CFR 2200.120 and Judge Helms shared his preferences. Administrative Law Judges can exercise wide discretion and conduct the proceedings as they prefer, but within the guidelines of the rules.

The panel then went through a mock mediation for a hypothetical where an employer was cited for willful violations of the lockout tagout standard with penalties totaling over $200,000. This qualified the case for mandatory settlement mediation. Judge Helms prefers to hold a mandatory settlement opening conference and requests written statements from the parties. Judge Coleman then holds a private caucus session with the parties to ascertain their goals for the settlement conference.

The third panel of the day featured Seyfarth’s very own A. Scott Hecker. Scott was joined by a senior Department of Labor attorney and a National Employment Law Project attorney in a discussion regarding vulnerable workers. Vulnerable workers include Black, Latino, immigrant, and child workers. The panel discussed the hazards faced by this group of workers and tools the Biden Administration, the Department of Labor (“DOL”), and employers can prevent and addresses the hazards.

“Underrepresented workers are overrepresented in the data,” Hecker said. Where you can see the data, you can follow the trends, identify where the problems are, and address them. Where employers can really make a difference is with training. Training should be in the language that employees speak and relayed understandably. Hecker further stressed that frequent safety issues can invite OSHA’s scrutiny and other government scrutiny as OSHA frequently engages in cross-agency collaboration, a sentiment shared by the senior DOL attorney.

The DOL attorney focused on the tools that DOL has to protect immigrant workers from retaliation and possible deportation. The DOL attorney emphasized that DOL “protects workers regardless of immigration status.” DOL partners with the Department of Homeland Security (“DHS”) to protect employees, including worksite-wide deferred action. OSHA is the second agency to work with DHS to certify “U” and “T” visas for workers who are victims or violence and trafficking, respectively. DHS has also agreed not to conduct mass raids of worksites where the worksite is the subject of a DOL investigation. Lastly, the panelists commented on state law efforts to combat issues facing vulnerable workers. For example, Florida recently passed legislation permitting sixteen- and seventeen-year-olds to work at certain residential roofing sites while New York’s Department of Labor affixes a tag notifying consumers if a product was unlawfully produced.

The final panel addressed mental health. The panel addressed the conflict between employers’ obligations under the Occupational Safety and Health Act (“OSH Act”) and the Americans with Disabilities Act (“ADA”). Specifically, employers asserting a defense to ADA claims through the OSH Act’s general duty clause, which requires employers to provide a workplace free from recognized hazards which may cause or are likely to cause death or serious physical harm. The panelists discussed a circuit court case that barred employers from adopting per se bans on employees with conditions that pose a hazard. Instead, employers must engage in individualized assessments to determine whether the employee poses a risk under the general duty clause. The panelists then focused on common hazards related to the cannabis industry. OSHA does not provide guidance for evaluating or addressing cannabis industry hazards. However, OSHA continues to regulate the industry. The panelists discussed a recent case where OSHA issued a serious citation due to the hazard posed by ground cannabis dust. According to the DOL attorney, OSHA has internal testing, which has not been shared with regulated industry, showing ground cannabis dust is a hazardous chemical subject to the Hazard Communication standard. Currently, there is no OSHA or industry-recognized standard addressing acceptable levels of ground cannabis dust.

We look forward to returning to next year’s Midwinter Meeting in 2025.

By Ilana Morady, Brian Gillis, Clara Rademacher, Patrick D. JoyceBradley Doucette, and Adam R. Young

Seyfarth Synopsis: Senate Bill 553, signed into law by Governor Gavin Newsom, requires nearly all employers in the State of California to prepare a Workplace Violence Prevention Plan, train employees on how to identify and avoid workplace violence, and maintain a violent incident log by July 1, 2024. On March 7, 2024, Cal/OSHA published the long-awaited model Workplace Violence Prevention Plan

Governor Newsom has signed SB 553, a first of its kind workplace violence prevention law, which requires nearly all California employers to create, adopt, and implement written Workplace Violence Prevention Plans that include numerous elements, annual workplace violence prevention training, violent incident logs, and the creation and retention of various records.

Interestingly, the Division of Occupational Safety and Health (Cal/OSHA) in collaboration with various stakeholders has been working on a general industry workplace violence standard since 2017. Now, SB 553 requires the Division to start enforcing new workplace violence requirements that are largely modeled on Cal/OSHA’s existing draft standard. Under the new law, the Cal/OSHA Standards Board is required to adopt workplace violence standards codifying SB 553 no later than December 31, 2025. But regulations or not, Cal/OSHA is empowered and directed to start enforcing SB 553 on July 1, 2024.

The model Cal/OSHA Workplace Violence Prevention Plan complies with the full slate of requirements for a written Plan, and using this Plan will reduce the likelihood of a programmatic Cal/OSHA citation.

Who is Covered?

The requirement for a Workplace Violence Prevention Plan applies to all employers and employees in the State, with a few limited exceptions:

  • Employers already covered by Cal/OSHA’s Violence Prevention in Health Care standard
  • Employees who telework from a location of their choosing that’s outside the control of the employer
  • Locations not open to the public where fewer than 10 employees work at a given time
  • Department of Corrections and Rehabilitation and law enforcement agencies

Defining “Workplace Violence”

“Workplace violence” is defined broadly as any act of violence or threat of violence that occurs in a place of employment. The law also defines 4 specific types of workplace violence.

The definition includes, for example, verbal and written threats of violence and incidents involving use of firearm or dangerous weapon regardless of whether an employee sustains an injury.

However, the definition also captures acts that some might think waters down the meaning of workplace violence, such as a threat against an employee that results in or has a high likelihood of resulting in, injury, psychological trauma, or “stress,” regardless of whether the employee sustains an injury. This means there’s no “reasonable person” test; the definition is subjective. A seemingly innocuous comment to some might be considered workplace violence based on the perception of an employee.

What Must be Included in a Workplace Violence Prevention Plan?

Workplace Violence Prevention Plans must be in writing and easily accessible by employees. The Plans can be included as a stand-alone section within an existing injury and illness prevention plan (IIPP) or they can be maintained as a separate document.

The model Workplace Violence Prevention Plan published by Cal/OSHA includes all of the required information necessary for compliance including identifying the individuals responsible for implementing the Plan, and the following procedures for:

  • Involving employees in the development and implementation of the Plan
  • Coordinating implementation of the Plan and training with other employers such as staffing agencies.
  • Accepting and responding to reports of workplace violence, and prohibiting retaliation against reporting employees
  • Ensuring employees comply with the Plan
  • Communicating with employees about: (1) how to report violent incidents, threats, or workplace violence concerns to employer or law enforcement and (2) how concerns will be investigated and results communicated
  • Responding to actual and potential workplace violence emergencies
  • Identifying and evaluating workplace violence hazards
  • Post incident response and investigation
  • Reviewing Plan effectiveness annually, when deficiency is apparent, or after a workplace violence incident

Training Requirements

SB 553 also requires employee training. Employers must provide employees with initial training when the Plan is first established and continue to conduct annual trainings thereafter. Training needs to cover the following topics:

  • The employer’s Plan and how employees can obtain a free copy of the Plan
  • How to report workplace violence hazards and workplace violence incidents
  • Corrective measures the employer has implemented
  • How to seek assistance to prevent or respond to violence
  • Strategies to avoid physical harm
  • Information about the violent incident log and how employees can obtain a copy

Additional training is required when new or previously unrecognized workplace violence hazards are identified, or when there are changes to the Plan.

Employers must retain training records for at least 1 year.

Recording and Reporting Requirements

Employers are required to record every workplace violence incident in a violent incident log including:

  • Date, time, and location of the incident
  • Detailed description of the incident
  • Classification of who committed the violence
  • The violence type including whether it was a physical attack or threat, whether weapons or other objects were involved, or whether it was a sexual assault
  • Consequences of the incident including whether security or law enforcement was contacted and whether actions were taken to protect employees from a continuing threat

Employers must retain the log for 5 years and omit personal identifying information. Employees are entitled to view and copy the log within 15 calendar days of a request.

Other Recordkeeping Requirements

Unlike the IIPP standard, which has a 1-year retention period for records of implementation, SB 553 has a lengthy 5-year retention requirement for workplace violence hazard identification, evaluation, and correction records. Records of workplace violence incident investigations (which may not include medical information) are also subject to the 5-year retention requirement.

Changes to Existing Rules On Seeking Temporary Restraining Orders on Behalf of Employees

Finally, SB 553 changes California’s Code of Civil Procedure by adding several employee-friendly protections to the process by which employers may petition for temporary restraining orders (TROs) and orders after hearings (i.e. restraining orders that are often in place for three or more years) on behalf of employees.

California Code of Civil Procedure Section 527.8 previously allowed employers to petition for a Workplace Violence TRO on behalf of their employees who had “suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace” to seek protection from an individual; often a former employee or member of the public who is violent and/or threatening the employee at their workplace. This was a helpful, albeit limited, remedy for employers seeking to protect the workplace.

SB 553 expands Section 527.8 and authorizes collective bargaining representatives, not just employers, to petition for TROs on behalf of employees, allowing even more relief for employees faced with threats and violence. SB 553 also provides for employee names to be withheld from the TRO papers, providing anonymity for victims who otherwise might have hesitated on supporting a TRO for fear of retaliation from the individual at issue.

SB 553 also expands upon the actionable conduct necessary to give rise to a TRO and amends Section 527.8 to allow employers to seek a TRO on behalf of their employee where the employee suffers harassment––and not simply violence or threats of violence.

Workplace Solutions

Employers should reach out to the authors or your favorite Seyfarth attorney to strategize about how to create and roll out compliant Plans, and modify existing policies to conform to the new SB 553 requirements before July 1, 2024.

Edited by Cathy Feldman and Coby Turner

By Brent I. ClarkJames L. CurtisPatrick D. JoyceA. Scott HeckerDaniel R. BirnbaumMelissa A. Ortega and Taylor Iaculla

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

Day 2 started with a panel discussion on recent case law with significant impacts on workplace safety. The panelists discussed a recent Supreme Court case concerning whistleblowers, reflecting yesterday’s theme of protecting workers from retaliation. In the case, on appeal from the Second Circuit, the Supreme Court held that whistleblower claims must only satisfy the lower contributing factor standard as opposed to a heightened standard the Second Circuit attempted to impose. The panel also highlighted a recent case involving powered industrial truck (PIT) underride citations that were vacated by the appellate court after the Review Commission declined to review. The employer was cited under the general duty cause for exposing its truck operators to underride hazards. The appellate court noted that such citation was preempted by the PIT training standard, despite the standard not explicitly referencing the underride hazard. The court found that because the specific PIT standard included a training clause, and OSHA had previously used the very same training rule to cite a PIT underride hazard – in a case where we were involved and successfully defended a client – this was enough to preempt use of the general duty clause. According to Edmund Baird, Associate Solicitor, Division of Occupational Safety and Health, the decision is considered by OSHA and the Solicitor’s office to be a “troubling case” that can make enforcement of underride issues through the general duty clause in the future “difficult.”

The panel then addressed the recent trend of constitutional challenges to government agencies’ authority. As discussed in yesterday’s blog post, these challenges seek to revise or replace the Chevron doctrine, which affords government agencies’ regulatory interpretations a level of deference when those interpretations are challenged. The panelists posited that decisions seeking to alter the current framework may result in the adoption of the Skidmore framework, which restricted deference based on an analysis of the agency’s consistent interpretation of the law it seeks to enforce. The panelists also cautioned that if Chevron is overturned and new administrations attempt to revise the regulatory framework through agency interpretation, they will not be afforded the same level of deference they might otherwise expect.

The next panel discussed safety and health obligations for foreign workers, how those obligations affect employers, and OSHA’s regulatory efforts. The panel discussed the legal and business challenges faced by employers in ensuring vendors and contractors comply with laws, and reminded the attendees of the importance of utilizing written contracts with vendors or contractors. The panel also acknowledged potential issues when sending its own employees abroad, and the need to assess safety and health risks associated with relevant countries and develop policies addressing such issues. Further, Emily Hargrove, Chief of Staff to the Assistant Secretary of OSHA, discussed OSHA’s current focus on protecting foreign workers through various means. This includes a focus on foreign workers employed in the United States in the residential roofing, meat and poultry, warehouse and distribution, and agriculture industries.   OSHA is also focused on developing relationships with consulates and countries such as Mexico, El Salvador, and Honduras to educate migrant workers of their rights.

The conference then split into break-out sessions. During a session on discrimination, the panel looked at how workplace discrimination and harassment could be addressed by workplace safety laws, including as a workplace violence incident under the general duty clause. The panel noted recent OSHA investigations and interest related to such issues, most commonly where employees allege they have been subjected to discrimination culminating in incidents of workplace violence.

We also attended a breakout session regarding updates on State OSHA Plans. The panel provided a robust discussion of the unique challenges and benefits State Plan states have when regulating employee safety and health in their jurisdictions. Judith Cruz Concepción, Assistant Secretary of the Puerto Rico Occupational Safety and Health Administration, spoke on the challenges Puerto Rico OSHA experiences related to staffing of compliance officers, access to employers who may not have a physical presence in Puerto Rico other than workers, and meeting various benchmarks outlined by federal OSHA for State Plans. Concepción mentioned that certain federal OSHA Emphasis Programs, such as the Heat NEP, are simpler to enforce in Puerto Rico because employers are already cognizant of the hazards presented from working in hot weather and proactively addressing those hazards, given that Puerto Rico experiences temperatures around or above 80 degrees Fahrenheit year-round.

Elliot Furst, Senior Counsel in the Washington Attorney General’s Office, discussed differences between State Plan states, their funding arrangements, and their ability to address hazards unique to their states. Furst indicated that Washington is capable of quickly pivoting to address hazards unique to the State, including heat illness, wildfire smoke, and ergonomics because the agency’s funding source is not tied to the general fund and the legislature does not actively monitor the agency. This observation creates an interesting incentive structure and helps explain our experience with the agency, their aggressive enforcement agenda, and focus on newly-identified hazards. We also heard about the practical differences related to advocating on behalf of employers or employees in State Plan states compared to federal OSHA jurisdictions.

At a separate Cal/OSHA breakout discussion, panelists focused on two topics that have consistently been on OSHA’s radar in recent years: heat and ergonomics. The panel discussed OSHA’s efforts to address both issues, which are currently regulated under the general duty clause. Regarding ergonomics, best practices for employers were discussed, including focusing on developing the proper policies and programs to address such issues in the workforce. Concerning inspection management, the panel spoke on the potential for employees to demonstrate lifting or related movements during OSHA inspections, which may run contrary to a company’s standard operating procedures or training. As such, employers should proactively work to address these issues. Turning to heat, the panel discussed the increasing prevalence of heat illness, the challenges in addressing such issues, and the status of OSHA’s rulemaking on a heat illness standard. The panel stressed training for employees, as well as awareness of various State Plan states, especially on the west coast, that may have specific standards addressing heat.  Lastly, the panel acknowledged the challenges employers may face in keeping an engaged workforce that is aware of heat hazards and the importance of taking action to use a company’s resources that will keep employees safe.

Finally, a panel discussed ethical issues arising from AI and big data, addressing potential ethical issues surrounding the use of AI and big data as it relates to safety and health. The panelists considered the benefits and pitfalls of utilizing AI and big data in assessing safety and health hazards in the workplace. Currently, technology can help employers monitor safe work practices and help evaluate potential hazards. However, use of such technology may lead to increased risk if employers fail to address hazards that AI or data have indicated pose safety and health hazards. These issues necessitate the need for updating policies and procedures to effectively sort and evaluate information derived from AI and big data.

By Brent I. Clark, James L. Curtis, Patrick D. JoyceA. Scott HeckerDaniel R. BirnbaumMelissa A. Ortega and Taylor Iaculla

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

Tuesday, March 5

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico. On Tuesday, March 5, the conference focused on the Mine Safety and Health Act, which included Mine Safety and Health Administration representatives presenting and in attendance. One key development related to two significant MSHA cases that involve arguments  that MSHA’s interpretation of the Mine Safety and Health Act is flawed. This comes after recent Supreme Court cases challenging the Chevron doctrine, which affords government agencies’ regulatory interpretations a level of deference when those interpretations are challenged. Overturning the doctrine would empower judges to decide if a regulation is clear and unambiguous, without deferring to the agency’s interpretation of the regulation at issue.  

The afternoon session shifted focus, primarily focusing on best practices and procedures for accident investigations, representation issues, the role of company personnel and unions, as well as an employer’s rights during OSHA inspections. The session highlighted the intersectionality that OSHA has with other areas of law, such as labor law, privacy law, and whistleblower rights.

Wednesday, March 6

Today’s session featured Douglas L. Parker, the head of the Occupational Safety and Health Administration, who spoke about the Biden Administration’s priorities and initiatives for the upcoming year, which included encouraging employers to adopt a safety and health focused culture. OSHA will focus on key components, such as: increasing employer participation through alliance programs, focusing on warehouses, addressing fall hazards in both general and construction industries, and silica hazards. Increasing employer participation was a common theme throughout Parker’s commentary, who noted that OSHA does not want employers to pass the “burden” on to employees and expressed renewed interest in prioritizing whistleblower protections and anti-retaliation measures, citing it as an issue of “personal importance.” 

The Assistant Secretary also spoke about OSHA’s focus on VPP modernization efforts and its intent to expand the use of safety and health management systems. OSHA will continue to use penalty strategies and expects to see an increase in willful and egregious cases as a result of “focusing on the right employers.” The Assistant Secretary added that the agency will be releasing a new mission statement, which employers can expect to include protecting workers from retaliation.

Seema Nanda, Solicitor of Labor at the U.S. Department of Labor, followed up and noted that the Office of the Solicitor will prioritize retaliation and protecting immigrant workers, developing imminent danger cases, and increasing utilization of 11(b) for repeat offenders. She also noted that the agency will continue to use debt collection initiatives for recidivist employers.  The Office of the Solicitor will use all available tools, and Nanda stressed that the agency will look to employ corporate wide settlements and enhanced compliance agreements to effectuate global settlements as appropriate. In the OSHA context, it will also focus on its use of warrants, subpoena power and subpoena enforcement, enhanced abatement, and coordinating with the Department of Justice in regard to civil and criminal penalties. Notably, Nanda expressed that the agency will also increase its collaboration with state plans.

We also heard from Dionne Williams, Deputy Director, Directorate of Enforcement of OSHA, who spoke at length about key enforcement initiatives for 2024, including a focus on national emphasis programs related to heat hazards, those targeting warehouse and distribution center establishments, retail establishments with high injury rates, and silica. Williams discussed the severe violator enforcement program, noting that there have been 1,251 cases in the program since its inception, with almost 250 cases occurring just in the past year. As part of its national emphasis program focused on heat-related hazards, Williams noted that OSHA’s goal is to increase heat inspections by 100% above its baseline average for fiscal years 2017-2021. Further, when the heat index reaches 95 degrees, including both indoor and outdoor locations, OSHA will engage in targeted inspections.

Anticipating the themes and topics covered by Ms. Williams, Seyfarth’s Workplace Safety Team recently presented on and provided their analysis on OSHA enforcement in the upcoming year. That presentation is available here: “Be Prepared: OSHA Enforcement Trends for 2024 and Beyond | Seyfarth Shaw LLP.” 

Williams was followed by Peter Vassalo, Counsel for Special Litigation, Division of Occupational Safety Health. Vassalo commented that OSHA is committed to utilizing all the “tools in its toolbox,” including its criminal enforcement mechanisms, by partnering with the Department of Justice and state attorneys general. LaTasha T. Thomas, Senior Counsel to the Solicitor also spoke, commenting generally on the rulemaking process and how the rulemaking process will be unaffected by the upcoming election.

Today’s panels also included discussion on employee participation related to OSHA investigations, in both union and non-union work environments. Specifically, the panel highlighted the Department of Labor’s proposed rule concerning walkaround rights of employees, in which the Department is seeking to expand walkaround rights. The proposal came in response to a Northern District of Texas ruling that determined that OSHA could not permit non-employees to act as employee representatives during OSHA inspections. The proposed rule is currently with the Office of Management and Budget, which is in the final stages of its review.

We will continue to provide updates throughout the week.

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

Seyfarth Synopsis: The United States Centers for Disease Control and Prevention (CDC) is shifting its COVID-19 isolation guidance, advising that COVID-positive individuals no longer need to isolate once they have been fever-free for 24 hours and their symptoms are mild or improving.

After weeks of rumors, the CDC revised its COVID-19 guidance to eliminate its five-day isolation recommendation and to suggest only enhanced situational precautions after an individual is fever-free for 24 hours:

When people get sick with a respiratory virus, the updated guidance recommends that they stay home and away from others. For people with COVID-19 and influenza, treatment is available and can lessen symptoms and lower the risk of severe illness. The recommendations suggest returning to normal activities when, for at least 24 hours, symptoms are improving overall, and if a fever was present, it has been gone without use of a fever-reducing medication.

Once people resume normal activities, they are encouraged to take additional prevention strategies for the next 5 days to curb disease spread, such as taking more steps for cleaner air, enhancing hygiene practices, wearing a well-fitting mask, keeping a distance from others, and/or getting tested for respiratory viruses. Enhanced precautions are especially important to protect those most at risk for severe illness, including those over 65 and people with weakened immune systems.

The updated guidance also advises “additional considerations for people who are at higher risk of severe illness from respiratory viruses, including people who are immunocompromised, people with disabilities, people who are or were recently pregnant, young children, and older adults. Respiratory viruses remain a public health threat.”

California updated its isolation guidance at the beginning of January.

Employers with policies aligning with prior guidance advising that individuals with flu-like symptoms test for COVID and isolate for at least five days after testing COVID-positive could consider updating them to keep pace with CDC’s revisions.  Employers outside of the healthcare industry continue to broadly eliminate COVID-specific policies, but everyone should remain cognizant of specific industry or jurisdictional requirements that may differ from CDC guidance. 

For advice and counseling on this issue, or for more information on any related topic, please contact the authors or any member of the Workplace Safety and Environmental Team.

By Rachel BernasconiPaul Cutrone, Marissa Dreher, Ben DudleyChris GardnerErin HawthorneJustine GiulianiSarah GoodhewPhilippa NoakesDarren PerryPenny StevensHenry Skene and Michael Tamvakologos

Seyfarth just celebrated ten years of service to leading employers in Australia. To mark the occasion, we invited some of our partners to share insights on the evolution of employment, industrial relations and workplace safety in Australia over the past ten years.

What have been the biggest changes in employment law, industrial relations and workplace safety over the previous ten years?

“In my view, one of the biggest changes has been the challenge for employers of all sizes to comply with increasingly complex employment laws and, more specifically, modern awards.” – Rachel Bernasconi, Partner

“The changing health and safety enforcement climate for organisations and individuals. The enforcement setting is shifting to a more assertive and higher stakes regulatory environment.” – Paul Cutrone, Partner

“An increased community awareness and engagement with respect to workplace safety, and with that, greater expectations on both organisations and the individuals within them. This change in community expectation has been reflected across Australia with the introduction of outcome-based industrial manslaughter laws, the increased use of reckless endangerment provisions (against both companies and senior managers), significantly increased maximum fines and, more recently, a heightened regulatory focus on psychosocial risk.” – Marissa Dreher, Partner

“The biggest changes have involved the courts and government grappling with what the concept of “employment” really means in modern society, and how far regulation should stray into the private relationships between parties in the 21st century. We have seen the High Court of Australia hand down decisions in relation to what “casual employment” means, as well as where the line is drawn between an employment relationship and an independent contracting relationship. And then the government has legislated to change the result of both of those cases.” – Ben Dudley, Partner

“Business leaders and HR have never been under more pressure when it comes to the workplace. A tight labour market combined with ever increasing regulation has underscored the difficulty. Related to this we’ve seen the bolstering of individual rights and a wellness zeitgeist as workplaces have never spoken more of resilience but seen less of it. The rise of the individual and a certain entitlement mentality has seemingly coincided with a decline in individual accountability with everything left to institutions (the employer being but one) to solve. For HR, “risk” has been the big theme.” – Chris Gardner, Partner

“Workplace issues have become significant business and brand risks, while increasing in complexity. Formerly, many businesses would have a siloed approach, with separate teams dealing with safety, HR, compliance, workers compensation and payroll issues. The issues that employers need to deal with have increasingly required a cross-disciplinary approach. To take some simple examples: workplace bullying and sexual harassment issues need input from HR and from safety teams. Award compliance increasingly requires legal and payroll teams to work closely together, often with external experts as well. We are also seeing a trend of claims that would previously have been addressed as employment grievances (e.g. performance management or organisational change concerns) lead to allegations of safety breaches and/or workers compensation claims.” – Erin Hawthorne, Partner

“Managing people is a first order priority for Boards and senior leaders. Employers are increasingly deploying risk-management based approaches in all facets of the employment relationship – whether ensuring their people are paid in accordance with applicable industrial instruments, meeting multi-layered work health and safety regulation, and discharging the positive legal duty introduced under the Respect@Work reforms. There is little latitude for error, with enhanced penalties for non-compliance and enforcement activity reinforcing the expectation that businesses will get it right the first time.” – Justine Giuliani, Partner

“The regulation of hazards and risks – psychosocial and sexual harassment being two examples – in the workplace that have traditionally been considered within business to be outside the ‘WHS’ sphere. And the introduction of industrial manslaughter as a consequence based offence into risk based legislation.” – Sarah Goodhew, Partner

“Ten years ago, employers were nervously anticipating the impact of new (typically, individual) claims introduced under the Fair Work Act 2009 (Cth) including general protections claims and applications for stop bullying orders. With that in mind, over the last ten years, employers have been very focused on managing individual claims, which has in turn led to a huge focus on workplace investigations. It is now very common to see employers skilling up their workforces (including HR and ER teams, and managers generally) to undertake robust investigation processes or seeking external investigation assistance for complex matters.” – Philippa Noakes, Partner

“For me, while so much has evolved, there are three major changes. The first is that compliance with employment obligations have emerged as a much higher order risk item for companies. This has been as a result of greater complexity in our laws, but also more active enforcement by regulators and the representatives of worker groups. Related to that, the second is that compliance with workplace obligations is a major reputational issue for company boards, much more so than a decade ago. Finally, we are seeing a significant lifting of the bar in the standards of behaviour expected in our workplaces, and a much greater preparedness for workers to assert their rights when these they feel these expectations have not been met.” – Darren Perry, Managing Partner

“Only 18 months ago, my top three would have been the ever increasing complexity of workplace regulation, the success of human resources and organisational leadership in response, and a commensurate weakening of union penetration and influence in most workplaces (with a few notable exceptions). Today, the answer is the four rounds of “Closing Loopholes” reforms. These changes dwarf anything that has happened in workplace relations since the introduction of enterprise bargaining in the early ‘90s. And those who remember (then) Minister Gillard proudly proclaiming in 2008 that the Fair Work Act shifted the “pendulum” back to the middle, should be aghast at just how far Minister Burke has managed to push it to one side. The reforms touch all points of the workplace: imposing increased regulation of engagement, individual rights to access arbitration, collective rights to commence bargaining and arbitration of actual conditions, new sector-wide bargaining and capacity to impose employment rights on contractors and labour hire workers, and universal workplace delegates rights to speak for both members and non-members. And you will not find anywhere in the reforms any new measures to improve productivity or even to require that it be taken into account.” – Henry Skene, Partner

“The introduction of industrial manslaughter for employers in most Australian jurisdictions signalled an increased focus by regulators on strengthening workplace safety and accountability. This legislative development underscores a critical shift towards prioritising the wellbeing of employees, demanding stricter adherence to safety protocols, and holding employers responsible for ensuring a secure work environment.” – Penny Stevens, Partner

“In my view, the biggest changes we’ve seen to the law are in areas where the law lagged social attitudes and has now caught up, namely:

  1. Compliance with workplace obligations and standards such as timely and correct payment is now a Board issue: Ten years ago, it would have been rare for a Board to spend time on this kind of issue. Now systemic underpayments attract a high level of scandal and can damage reputations – corporate and personal. As a result, organisations are spending much more on IT and auditing at the front end and litigation at the back end.
  2. Individuals and vulnerable individuals and groups empowered: Both generational shifts in thinking and social movements such as #MeToo have reset expectations about what is acceptable. In legal terms there is focus on practices such as confidentiality agreements to resolve harassment claims and many recommendations and changes that have come out of the Respect@Work report.
  3. Government intervention in IR: After decades of incremental or no reform, the Labor Government has shown a willingness to enter the IR landscape and make far reaching changes to the point of nearly prescribing outcomes. Companies in some industries are heavily impacted and succeeding with this level of regulatory risk and intervention requires a planned approach.” – Michael Tamvakologos, Partner

On behalf of the team, we would like to thank our valued clients. We are excited to continue working with you in 2024 and beyond.

In our next post, our partners look forward to sharing their insights on the changes and trends that are poised to significantly impact employers over the next five to ten years.

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By Adam R. YoungJames L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: As a new update this year, certain employes are required to submit OSHA Form 300, 301 and 300A online.  OSHA recently offered a webinar on using it’s Injury Tracking Application (ITA) to submit this data.

Effective January 1, 2024, OSHA now requires some employers to upload OSHA Form information to its Injury Tracking Application (ITA) by March 2 of the following calendar year (i.e., 2023 data).  Employers must use the secure ITA website for injury and illness data submissions. Users may manually enter data, upload a CSV file to add multiple establishments at the same time, or transmit data electronically via the API (application programming interface).

OSHA previously hosted a webinar regarding the mechanics involving in electronically submitting the OSHA forms.  Only certain employers are required to comply with the new electronic submission requirements.  Last year, OSHA published a Final Rule that stating that establishments with 100 or more employees in high-hazard industries, which were already required to submit information from the OSHA Form 300A Annual Summary, must now also submit information from the OSHA Form 300 Log and the OSHA Form 301 Incident Report. Employers should consider the number of employees and industry classification at a specific site establishment, rather than at the entire Company.  Companies that are unsure of their obligations can use the ITA Coverage Application to determine if they are required to electronically submit their injury and illness information to OSHA.

Under the rules, establishments that meet any of the following criteria during the previous calendar year do not need to electronically submit their information to OSHA:

  • The establishment’s peak employment during the previous calendar year was 19 or fewer employees, regardless of the establishment’s industry.
  • The establishment’s industry is listed on Appendix A to Subpart B of OSHA’s recordkeeping regulation, regardless of the number of employees working at the establishment.
  • The establishment had a peak employment between 20 and 249 employees during the previous calendar year AND the establishment’s industry is not on Appendix A to Subpart E of OSHA’s recordkeeping regulation.

Readers may also checkout OSHA’s Injury Tracking Application training video.

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, Mark A. Lies, II, A. Scott Hecker, Patrick D. JoyceJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: While the Solicitors at the Department of Labor (DOL) only litigate civil OSHA citations, DOL has announced enhanced coordination with criminal law enforcement for employers’ representatives in fatality cases. Criminal matters often involve highly resource intensive work that involves safety managers, operations managers, and executives.

Under the Occupational Safety and Health Act, OSHA has the power to refer employers to the United States Department of Justice for criminal enforcement. Penalties include up to six months in federal prison and up to a $250,000 personal fine. The agencies review all cases where there is an alleged willful violation resulting in a fatality for potential criminal enforcement. Accordingly, all employers should evaluate and prepare for criminal exposure following any fatal accident, even if it may not initially appear work-related.

In her FY2023 Enforcement Report, Solicitor of Labor Seema Nanda noted “enhanced criminal enforcement coordination” to criminally prosecute managers who commit willful OSHA violations. Solicitor Nanda’s report provided recent representative examples, including a recent case against ALJ Home Improvement, Inc. and its owner. This roofing contractor allegedly had a history of OSHA citations, with more than two-dozen willful OSHA citations between 2019 and 2023, “including willful egregious fall protection citations” in 2022 and 2023. During this period, two of ALJ’s workers died after falling on the job. In 2023, “the U.S. Attorney for the Southern District of New York charged [ALJ’s owner] for willfully violating OSHA regulations following a criminal referral from OSHA.” During the criminal referral to DOJ, DOL has continued to litigate civil citations against ALJ and its owner individually, obtaining an administrative settlement and a district court consent injunction that requires ALJ and its owner “to comply with a series of enhanced compliance measures to ensure employee safety.” The injunction also makes clear that ALJ’s “practice of allowing its employees to work without fall protection poses an imminent danger of death or serious harm.”

Nanda also noted that DOL and OSHA are using criminal contempt as a tool to hold employers accountable for not complying with the laws that DOL enforces. In one case, a Nebraska roofing contractor received multiple OSHA citations for serious safety violations, including failure to use fall protection. According to the Enforcement Report, “after these citations became final orders, SOL filed a petition for the Department in the Eighth Circuit Court of Appeals, pursuant to section 11(b) of the OSH Act, to enforce the orders.” Section 11(b) allows DOL to seek court intervention to enforce abatement of violations and provisions in settlement agreements, and can allow for a finding of contempt of court if an employer does not comply. The Eighth Circuit granted the petition and ordered the contractor to comply.

Following the Nebraska contractor’s failure to comply with the court’s order to abate safety violations, SOL filed a motion to hold him in contempt. The Eighth Circuit granted the motion, and concluded that the contractor was in contempt. In September 2023, after the contractor continued to ignore the Court’s order, a Special Master appointed by the court ordered him to be brought into custody after he failed to appear at a hearing regarding the appropriate penalties and sanctions to ensure compliance with the final orders. “The Court released the contractor from custody only after he agreed to an interim plan to cease and desist all business operations until a compliance plan was entered.” Ultimately, the parties agreed to a compliance plan that would ensure the contractor’s compliance with the Eighth Circuit’s final orders as well as his future compliance, which the court accepted as resolution of the contempt Order.

Employers must protect the safety and health of their employees. In the event of an unfortunate fatality at work, including from a presumed personal health condition, employers should get counsel on the phone immediately. They must be especially vigilant to preserve evidence, protect privileges, and manage the impending OSHA inspection. Managers should be prepared and defended by counsel in their interviews with OSHA, as they face potential criminal liability and prison time if the agency chooses to issue willful citations.

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

By  A. Scott HeckerAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week, OSHA is promoting safe workplaces for young adults and working teenagers.

According to OSHA, employers must follow all OSHA safety and health standards to prevent their employees from being injured or becoming ill on the job. Workers under age 18 may be limited in the hours they can work, the jobs they can do, and the equipment they can use. At the federal level, OSHA’s sister agency, the Wage and Hour Division, enforces such requirements, and OSHA refers stakeholders to federal and state wage and hour child labor law resources that should help them understand what rules apply.

OSHA advises young employees about their rights, their employer’s responsibilities, and ways to stay safe on the job.  For instance, employees, including young workers, have the right to:

  • Work in a safe place.
  • Receive safety and health training in a language that they understand.
  • Ask questions if they don’t understand instructions or if something seems unsafe.
  • Use and be trained on required safety gear, such as hard hats, goggles and ear plugs.
  • Exercise workplace safety rights without retaliation or discrimination

The employer is required to:

  • Provide a workplace free from serious recognized hazards and follow all OSHA safety and health standards.
  • Provide training about workplace hazards and required safety gear.*
  • Tell them where to get answers to their safety or health questions.
  • Tell them what to do if they get hurt on the job.

To help protect themselves they may:

  • Report unsafe conditions to a shift/team leader or supervisor.
  • Wear any safety gear required to do the job..
  • Follow the safety rules.
  • Ask questions.
  • Ask for help if needed.

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

By Ilana MoradyPatrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week the California Department of Public Health (CDPH) issued an order revising COVID-19 definitions and procedures. Because the Cal/OSHA COVID-19 standard incorporates by reference certain CDPH definitions, the CDPH order impacts what the regulated community needs to be doing to comply with the Cal/OSHA COVID-19 standard.


On January 9, 2024, CDPH updated its COVID-19 Isolation Guidance and State Public Health Officer Order. The most impactful aspect of the update is a new definition of “infectious period.” Instead of spanning 2 days before symptoms (or positive test date in the absence of symptoms) through 10 days after symptom onset or testing positive, the new infectious period is:

For symptomatic confirmed cases, from the day of symptom onset until 24 hours have passed with no fever, without the use of fever-reducing medications, AND symptoms are mild and improving.

For asymptomatic confirmed cases, there is no infectious period for the purpose of isolation or exclusion. If symptoms develop, the criteria above will apply. 

CDPH still acknowledges that the “potential infectious period” is 2 days before symptoms (or positive test date in the absence of symptoms) through 10 days after symptom onset or testing positive, and accordingly still recommends wearing a mask through day 10. However for purposes of isolation and work exclusion, using the redefined, shorter, infectious period is recommended.

Why did CDPH make the change?

The context for the revisions is CDPH’s proclamation that “We are now at a different point in time with reduced impacts from COVID-19 compared to prior years due to broad immunity from vaccination and/or natural infection, and readily available treatments available for infected people. Our policies and priorities for intervention are now focused on protecting those most at risk for serious illness, while reducing social disruption that is disproportionate to recommendations for prevention of other endemic respiratory viral infections.” The order also explains that the revisions were made “In order for the Cal/OSHA COVID-19 Prevention Non-Emergency Standards​​​ to continue to be consistent with public health guidelines.”

What does the change mean for employers under the Cal/OSHA non-emergency COVID-19 standard?

Non-healthcare employers are still covered by the Cal/OSHA non-emergency COVID-19 standard, 8 CCR 3205, which does not expire until February 3, 2025. Under Section 3205, employers have several obligations that are significantly impacted by the shorter infectious period, the redefinition of which is incorporated by reference into Section 3205.

Shorter work exclusion: Although COVID-positive employees will still be subject to 10-day masking, employers can allow them to return to work much sooner than before, so long as symptoms are gone for 24 hours.

Close contacts: CDPH’s order specifies that the new “infectious period” definition is for the purposes of isolation and exclusion of confirmed cases. This raises the question of whether a different definition of “infectious period” should apply when making a contact-tracing determination of who might have had a close contact with the COVID-19 case. It appears possible that CDPH is still recommending a 48-hour look-back period for contact tracing based on the “potentially infectious period.” However for purposes of Cal/OSHA compliance under Section 3205, there is only one definition of “infectious period” that applies to all aspects of the regulation: the shorter infectious period that begins on the day of symptoms. It’s possible Cal/OSHA and/or CDPH may update their guidance to address this ambiguity. In any event, using a shorter infectious period for purposes of contact tracing will tend to result in a smaller pool of identified close contacts. This means that many employers will be able to winnow down the number of employees to whom they provide close contact notice and offer no-cost testing.

Outbreaks: The determination of whether an employer is in “outbreak” status under the Cal/OSHA COVID-19 standard hinges on the “exposed group” analysis. With a few exceptions, the “exposed group” is all employees who were in the same location as the COVID-19 case during the infectious period. The result of using a shorter infectious period in the analysis will likely generate smaller “exposed groups” and, accordingly, fewer “outbreaks.”

The CDPH’s order, and the resulting Cal/OSHA-compliance impacts, are welcome news for many employers. Stay tuned for the next chapter in the COVID-19 story, and in the interim, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Teamfor more information on this or any related topic