By Adam R. YoungMelissa A. Ortega, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has put out a reminder to employers on winter weather Personal Protective Equipment (PPE) requirements on how to design an effective PPE program. Employers must provide PPE, to protect workers’ safety, and health.

As winter returns and brings with it cold temperatures, ice, and snow, it’s Seasons Greetings from the federal Occupational Safety and Health Administration.  As with heat stress, cold exposure and resulting cold stress can result in a range of injuries and illnesses, ranging from minor skin irritation to serious illness and death. NIOSH addresses cold stress in detail in online guidance.  https://www.cdc.gov/niosh/topics/coldstress/default.html.  When combined with metabolic heat and indoor occupational heat sources, the heavy PPE, in addition to jackets, and hats worn for cold weather can also create heat illness risks that also must be addressed and managed. 

In OSHA’s recent guidance, OSHA has reminded employers of their responsibilities to ensure that employees wear winter gear for both outdoor and indoor workers who are exposed to the cold. Under federal OSHA’s rules, there is no requirement for employers to compensate employers for the ordinary clothing, skin creams, or other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas, hats, and raincoats. See 29 CFR 1910.132(h)(4).  Specialized work equipment, like insulated nitrile work gloves or lined fire-resistant jackets, must be provided by the employer.  Under some state laws, any equipment needed for the job must be provided by the employer.  Of course, there is no prohibition in any state on employers choosing to provide employees with non-specialized “street wear” to use at work. 

Dressing Properly for the Cold

OSHA notes that dressing properly is extremely important to preventing cold stress. When cold environments or temperatures cannot be avoided, the following would help protect workers from cold stress:

  • Use at least three layers of loose-fitting clothing. Layering provides better insulation.
  • Use of insulated coat/jacket (water resistant if necessary). Tight clothing reduces blood circulation. Warm blood needs to be circulated to the extremities.
  • Use of a knit mask to cover face and mouth (if needed).
  • Use of a hat that will cover an employee’s ears. Hats help keep the whole body warmer. Hats reduce the amount of body heat that escapes from your head.
  • Use of insulated gloves (water resistant if necessary), to protect the hands
  • Use of insulated and waterproof boots to protect the feet.

In its guidance, OSHA also provides cold weather safety tips:

  • The employer should ensure that employees know the symptoms of cold stress.
  • Employees should monitor their physical condition and that of your coworkers.
  • Employees should stay dry in the cold because moisture or dampness, e.g. from sweating, can increase the rate of heat loss from the body.
  • Employees should keep extra clothing (including underwear) handy in case you get wet and need to change.
  • Employees should drink warm sweetened fluids (no alcohol).
  • Employees should use proper engineering controls, safe work practices, and personal protective equipment (PPE) provided by the employer.

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. YoungA. Scott HeckerPatrick D. JoyceDaniel R. Birnbaum and Craig B. Simonsen

Seyfarth Synopsis: Here we go again. The impending federal government shutdown may suspend many enforcement and consultation functions of the United States Department of Labor, including OSHA.

The federal government is currently funded through November 17, 2023. If Congress does not approve a funding deal by the time the clock strikes midnight on Saturday, November 18, the federal government will be left without its glass slippers and will shut down. Under federal law, a failure to fund the government will suspend nonessential government activities, including certain functions of the Occupational Safety and Health Administration (“OSHA). The United States Department of Labor (“USDOL”) has developed a contingency plan, as have other government agencies, describing in detail which operations will be maintained and which will be suspended. USDOL’s plan covers OSHA.

The plan, if triggered, will furlough about 43% of OSHA staff. All signs point to furloughs covering support operations and not compliance officers.

According to the USDOL contingency plan, the agency will continue to inspect:

  1. Imminent dangers;
  2. Workplace fatalities and catastrophes;
  3. Serious safety and health complaints; and
  4. Follow-ups relating to abatement and high gravity serious violations.

We understand OSHA has held internal meetings determining that OSHA will continue to issue Serious OSHA citations and conduct informal conferences to resolve those citations. While OSHA will investigate fatalities, other catastrophic events, and high hazard complaints, other inspections for more minor hazards will be postponed.

Per the contingency plan, the Agency will discontinue all:

  1. Compliance assistance;
  2. Outreach programs;
  3. Training classes;
  4. Technical assistance;
  5. Rulemaking, including deregulation efforts;
  6. Whistleblower protection activities not described above; and
  7. Financial and other administrative efforts.

Appearing before the House Workforce Protections Subcommittee earlier this year, OSHA chief Doug Parker represented OSHA would not be doing “proactive” inspections, likely referring to the programmed inspections that constitute about 44% of OSHA’s inspection activity. According to Assistant Secretary Parker, OSHA’s recently-announced initiative on respirable crystalline silica, discussed in a prior blog, would be tabled during a shutdown.

While OSHA maintains a fair amount of activity under USDOL’s contingency plan, other Department agencies will feel greater impacts. For example, the Wage and Hour Division expects to furlough 1,531 of its 1,538 employees, leaving seven workers to “protect life and property” during any shutdown. Despite these reductions in enforcement personnel, employers must continue to comply with applicable laws – shutdowns do not represent a license to cut corners or relax vigilance, particularly regarding workplace safety and health.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

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

Seyfarth Synopsis: The Mine Safety and Health Administration “remains troubled by the fact that our impact inspections continue to discover the same hazards we’ve identified as root causes for fatal accidents and that we know can cause serious occupational illnesses,” says MSHA Assistant Secretary Chris Williamson.

The federal Mine Safety and Health Administration (MSHA) regulates and conducts enforcement activities concerning mines, facilities connected to mines, and all employers who provide services at mines.  The Agency has exceptional powers that in some ways exceed those of federal regulators at non-mine worksites, including the ability to shutter workplaces deemed to be unsafe.  The MSH Act is a strict liability statute, so an operator need not be at fault – or to have intended to commit a violation – for penalties to attach.  Under some circumstances, Company agents may be held personally liable for violations of the Act and its implementing regulations.

MSHA has recently seen an increase in workplace fatalities, with a government report, “Mine Safety and Health At a Glance: Fiscal Year,” listing 42 mine worker deaths in FY 2023, as opposed to 32 the preceding year.  Such jumps are not unprecedented, as FY 2020 saw 23 deaths, compared to 39 in FY 2021.  But mine fatalities have generally trended down since at least the late 1970s.

Assistant Secretary Williamson has been publicly-quoted saying, “I don’t think there is just one thing that is driving it . . . .  There are a number of issues and it’s a culmination of all those things.”  Indeed, the causes of the fatalities are varied and occur across different types of mines.  One contributing factor could be a rise in the number of miners; agency data suggests a 3% increase in FY 2023.  So, miners completely new to the job or even to a particular mine could be affecting the fatality surge.  This suggests employers should ensure they have a robust training system in place to acclimate new employees to both general and site-specific hazards.  Operators can also mitigate risk by ensuring workers have a path to report perceived hazards that can then be promptly addressed and corrected, as needed.

Enforcement alone cannot solve the problem of more frequent miner deaths, a fact Assistant Secretary Williamson acknowledges.  Indeed, enforcement numbers seem to be returning to pre-COVID levels at the same time fatalities have increased.  Perhaps this means the agency will invest resources in compliance assistance while concurrently pursuing enforcement activities.

Whether MSHA will have the resources to tackle each of these avenues remains an unanswered question, particularly where the agency is also engaged in multiple active rulemakings addressing issues as diverse as requiring operators to develop safety plans for surface mobile equipment and to increase protections for miners against silica.  Congress does not appear ready to provide the funding levels that DOL believes are needed to achieve these goals, so already-thin resources at MSHA and other agencies could be stretched even further going forward.

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  Daniel R. Birnbaum, Adam R. Young, and Craig B. Simonsen

Image from OSHA.

Seyfarth Synopsis: OSHA has recently highlighted tractor operator safety by increasing use of rollbars or cage frames.

Employers use tractors to clear winter snows.  As snow season approaches, OSHA warns that many older tractors are in use that are not equipped with rollover protective structures (“ROPS”).  While all tractors manufactured after October 25, 1976 are required to be installed with ROPS and a seatbelt, using ROPS and a seat belt system regardless of tractor age can help reduce injuries.  

Employers can focus on ensuring appropriate training occurs of workers on safe tractor operations, both initially and annually.  Employers should also ensure the ROPS are replaced if overturn occurs and ensure the ROPS meets all applicable OSHA standards.  Employers should also ensure that manufacturer labeling is not removed from the ROPS.

Employees can also minimize the risk of injuries by ensuring they securely fasten their seat belts, do not carry passengers, and exercise caution when operating the trailer, such as driving slower near hazards, saying clear of steep slopes, being alert when approaching row ends or rows, and avoiding sharp turns and sudden stops.  Employees should also ensure brakes are set when stopping a tractor and appropriately using park locks.

Equipment should also be regularly maintained, including inspection when a rollover occurs and checking tractor batteries, fuel tanks, oil reservoirs and coolant system seals.  Foldable ROPS should be kept in the up position, unless operating near low-clearance objects.  Employers should avoid using self-made ROPS, unless it complies with OSHA test procedures and performance requirements.

OSHA’s General Duty Clause requires employers to provide a workplace free from any recognized hazard. OSHA has published additional guidance on Tractor Safety for the Landscaping and Horticultural Services Industry and a Protecting Farmworkers from Tractor and Harvester Hazards QuickCard.

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 Ilana MoradyBrian B. GillisClara RademacherPatrick D. Joyce, and Bradley Doucette

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.

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.

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.

Along with identifying the individuals responsible for implementing the Plan, a Plan must include 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.

Will Cal/OSHA Publish A Model Program? 

Cal/OSHA frequently creates model programs, and using them has benefits: they’re easy to use, and, if completed correctly and implemented properly, they pass muster during a Cal/OSHA inspection. While Cal/OSHA hasn’t yet said whether they plan to publish a model Workplace Violence Prevent Plan program, the chances are high that they will.

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, modify existing policies to conform to the new SB 553 requirements before July 1, 2024.

Edited by Cathy Feldman and Coby Turner

Seyfarth Synopsis: USEPA has published a new Memo on RCRA Applicability to End-of-Life Lithium Batteries.

In May 2023 the U.S. Environmental Protection Agency (“USEPA”) published  a Memorandum and Q&A on the applicability of RCRA to end-of-life Lithium Ion and Lithium Metal Batteries. The guidance, sent to the USEPA Regional Division Directors, clarifies how the RCRA rules for universal waste and recycling apply to both intact and damaged batteries, and strongly encourages battery recycling, if the batteries are undamaged.

USEPA states that “most lithium-ion batteries are likely hazardous waste at end of life”  based on the characteristics of ignitability and reactivity (D001 and D003).  Nevertheless USEPA has taken the position that like other batteries, lithium ion and lithium metal batteries can be managed under the Universal Waste Rules until they reach the recycling or disposal facility.  USEPA advises however that while both intact rechargeable and single use lithium batteries can be managed as Universal Waste, lithium batteries that are Damaged, Defective or Recalled (“DDR”) may not be managed as Universal Waste.  The Agency also clarifies that while the Universal Waste Rules do not require manifesting of intact (versus DDR) batteries by generators, they must nevertheless be sent to a RCRA-permitted Treatment Storage and Disposal Facility (“TSDF”) or hazardous waste recycler as a final destination.

Much of the USEPA memo is in the form of Q&A,  and through those Q&As, USEPA describes how recycling rules apply to lithium batteries as they progress through the recycling process (collection, identification sorting, disassembly, and “shredding”).  The memo includes a description of the various wastestreams generated during the shredding process, and discusses in particular its position that “black mass” generated as part of shredding must be tested to determine if it is a characteristic hazardous waste, or must be presumed to be hazardous waste.

Because lithium batteries vary significantly in the size, level of charge remaining in the battery, condition of the battery,  and the amount of materials that are recyclable,  USEPA suggests very strongly that facilities either presume intact lithium batteries to be hazardous waste (and manage them under the Universal Waste Rules of 40 CFR 273 provided they are not DDR) or test them prior to recycling or disposal. As the use of lithium-ion batteries and lithium-metal batteries continues to increase at a significant rate, and there is more clarity on the regulated status of batteries at end-of-life, companies should be diligent in their characterization, packaging, management and recycling or disposal of such batteries; please let your attorney in the Seyfarth Workplace Safety and Environmental Practice know if you need assistance working through the recycling and waste management process.

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

Seyfarth Synopsis: The U.S. Department of Labor recently announced that OSHA has launched a new initiative focused on enhancing enforcement and providing compliance assistance to protect workers from the hazards of silica.

Exposure to crystalline silica dust above recognized permissible exposure limits can result in severe lung disease, including incurable silicosis.  The United States Department of Labor has actively addressed exposure to silica dust for more than 80 years, and a General Industry Respirable Crystalline Silica Standard went into effect on June 23, 2018.  Under that standard and OSHA’s interpretations, employers must use administrative or engineering controls whenever feasible to eliminate exposures to silica dust.

Crystalline silica and engineered stone have been an area of emphasis for occupational safety and health agencies’ recently, with California advancing a petition to issue emergency revisions to its existing silica regulations.  The stone industry has engaged in an unprecedented good faith campaign in collaboration with Cal/OSHA to target resources at fabricators engaging in the dry cutting of stone, which the data shows is the major cause of airborne crystalline silica exposures above the action level.  The industry has strongly supported (1) the elimination of dry fabrication methods; (2) strict adherence to existing regulations, including effective wet-cutting methods; and (3) comprehensive education for both fabricators and workers regarding the potential hazards associated with dry-cutting processes.  Seyfarth Workplace Safety Partner Adam R. Young provided critical testimony before the Cal/OSHA Standards Commission regarding key elements of the petition. 

On September 22, 2023, federal OSHA issued a memorandum to its regional administrators as well as to state plan designees following California’s lead, even citing to many of the anecdotes that drove California’s new rulemaking.  One key distinction between the federal and California efforts is that federal OSHA will not take on new rulemaking, but instead will base its enforcement initiative on its currently-applicable silica regulations.  A second significant difference is that California appears to be targeting broader range of employer NAICS codes, including, e.g., brick wholesalers.  

Industry organizations have indicated the desire to work cooperatively with federal OSHA and state workplace safety agencies to ensure all fabrication shops use effective wet-cutting methods and end non-compliant, dry-cutting practices, thereby eliminating dust and protecting employees.

For more information on silica, please see our recent blogs: OSHA Issues FAQs for General Industry for Crystalline Silica StandardOSHA Enforcement Memo for Crystalline Silica Standard in General Industry and MaritimeOSHA Publishes Crystalline Silica Standards Rule Fact Sheets for ConstructionCircuit Court Finds OSHA Failed to Adequately Explain the Crystalline Silica Standards Rule; and OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards.

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 Matthew A. SloanA. Scott Hecker, Adam R. YoungPatrick D. Joyce, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Department of Labor has announced notice and comment rulemaking as it seeks to revise its regulations regarding who can be authorized by employees to act as their representative to accompany OSHA compliance officers during physical workplace inspections.

Under current federal OSHA regulations, outside union officials and other third-parties who do not work at the site are not automatically entitled to accompany an OSHA inspector during an OSHA inspection, including the walkaround.  If outside third parties are permitted to attend, it must be because OSHA believes “good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”  29 CFR 1903.8(c).  The reference to “industrial hygienist or a safety engineer” in the current form of the regulation implies that a third-party is expected to have technical safety expertise.

OSHA’s August 29 press release announcing the proposed rule explains the rule would remove the specific reference to “industrial hygienist or a safety engineer” and “clarif[y] that employees may authorize an employee, or they may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.”  Id.  These third parties – which can include advocacy groups, unions (whether or not they presently represent employees at the worksite), and other labor organizations – need not have technical safety expertise.  Instead, all they need are “skills, knowledge or experience that may help inform the compliance officer’s inspection . . . includ[ing] experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.”  Id.

As currently drafted, the proposed rule would require the OSHA compliance officer to make an official determination that “good cause has been shown why [the union representative or other the third party’s] participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” Proposed 29 CFR 1903.8(c).  However, OSHA is still seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.

Until the proposed rulemaking is complete, under current federal OSHA rules, employees at union and non-union sites in federal OSHA jurisdictions are entitled to the presence of at least one representative who is also an on-site employee during the course of the inspection.  State plan states, like California, have their own rules and regulations regarding union and third-party access to OSHA inspections but, as required by section 18 of the OSH Act, States will need to ensure their standards and enforcement of those standards are at least as effective as any final rule published by OSHA following the notice and comment rulemaking process.

Unionized employers should consult their collective bargaining agreements to determine whether those agreements provide greater access to outside Union representatives or other third-parties than what is currently afforded under the law.

For more information this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, Daniel R. Birnbaum, Patrick D. Joyce, A. Scott Hecker, James L. Curtisand Craig B. Simonsen

Seyfarth Synopsis: To increase enforcement concerning workplace violence incidents, OSHA published a Standard Interpretation Letter concluding injuries resulting from workplace violence are recordable, even if the incident occurs outside of the workplace.

OSHA regularly issues letters or memoranda responding to questions from the public requesting interpretations of OSHA standards or regulations.  Historically, OSHA will generate dozens of these Standard Interpretation Letters in a calendar year (including over 30 in 2021).  This year, as we head into the last third of the year, OSHA has issued only two Standard Interpretation Letters.

In its only Standard Interpretation Letter this year analyzing OSHA’s recordkeeping requirements, OSHA was asked whether an instance would be recordable when an employee traveling between service calls in a company vehicle, during worktime and on a public roadway, was involved in an accident with another driver, who then shot the employee, stole his truck and fled the scene.  The employee neither said nor did anything to provoke the other driver, and, in fact, the non-employee driver was in the midst of a serial crime spree at the time of the accident.

Under these circumstances, OSHA concluded that the injury was presumed to be work-related unless an enumerated exception under the standard applied.  Citing the preamble to the recordkeeping rule, OSHA reasoned the work-related “presumption encompasses cases in which an injury or illness results from an event at work that is outside the employer’s control, such as a lightning strike, or involves activities that occur at work but that are not directly related to production, such as horseplay.”

Significantly, the Standard Interpretation Letter stated that “OSHA’s recordkeeping regulation does not allow employers to exclude injuries and illnesses resulting from random acts of violence occurring in the work environment from their recordkeeping forms.”  OSHA reached this conclusion even though the incident had occurred not at the worksite, but on a public highway, an area that historically has fallen within the Department of Transportation’s jurisdiction.

OSHA now takes the position that even random acts of violence originating from individuals with no connection to the worksite or employer – e.g., robbers, active shooters, etc. – will be considered work related, and any injuries sustained as a result of these random acts must be recorded on an employer’s OSHA 300 log.  To the extent such incidents occur outside the workplace, OSHA will still consider them work-related if the incident occurs when an employee is engaged in a work-related task during work hours. For more information on OSHA record-keeping, workplace violence 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. YoungJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced last week a notice of proposed rulemaking to revise the personal protective equipment standard for the construction industry. A revised standard will clarify that personal protective equipment (PPE) must fit each affected employee properly, to protect them from occupational hazards.

For the foreseeable future, experts estimate that the United States will face a massive shortage of construction workers, requiring employers continue to recruit new employees to the industry and change the workforce’s demographics. A more inclusive workforce (especially with women and smaller employees) means that some PPE in use will become inadequate for many employees.  PPE sometimes comes in limited size options or “one size fits all” that only properly fit the middle 95% of employees.  OSHA’s announcement expanded on the PPE safety issue:    

“The failure of standard-sized PPE to protect physically smaller construction workers properly, as well as problems with access to properly fitting PPE, have long been safety and health concerns in the construction industry, especially for some women. The proposed rule clarifies the existing requirement, and OSHA does not expect the change will increase employers’ costs or compliance burdens. The proposed revision would align the language in OSHA’s PPE standard for construction with standards for general industry and maritime.”

OSHA chief Doug Parker said that “if personal protective equipment does not fit properly, an employee may be unprotected or dangerously exposed to hazards and face tragic consequences… PPE must fit properly to provide adequate protection to employees. Improperly fitting PPE may fail to provide any protection to an employee, present additional hazards, or discourage employees from using such equipment in the workplace.”

Accordingly, OSHA is beginning the rulemaking process to require better fitting PPE in construction. The process for revising existing permanent OSHA standards is a long one, and requires that that agency solicit input from many stakeholders.  Employers and industry organizations are encouraged to submit comments and hearing requests online using the Federal eRulemaking Portal and reference Docket No. OSHA-2019-0003. Comments and hearing requests must be submitted by Sept. 18, 2023.

Construction employers also have a General Duty to protect employees from any recognized hazard. In the meantime as OSHA clarifies the construction PPE standard, construction employers should ensure that they have performed adequate PPE hazard assessments for the hazards their employees encounter.  Employers can preemptively assess any PPE sizing issues and whether employees are adequately protected. Employee involvement likely will help those assessments. 

Seyfarth continues to track new rules and PPE requirements in construction. 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.