Seyfarth Synopsis: On February 11, 2025, President Trump nominated David Keeling as Assistant Secretary of Labor for OSHA, pending Senate confirmation. Keeling, with extensive experience in occupational safety, is expected to adopt a pro-employer stance, contrasting with the Biden Administration’s approach. Anticipated changes include a delay or termination of new regulations on heat illness and workplace violence, and granting employers more control over third-party participation in OSHA inspections. Amanda Laihow, a respected figure in the safety community, is nominated to become OSHA Deputy Assistant Secretary. Keeling’s tenure may face challenges due to recent staff departures at OSHA.

On February 11, 2025, the Senate received President Trump’s nomination of David Keeling as Assistant Secretary of Labor for Occupational Safety and Health, to lead the Agency with the same name (OSHA). As the chief for OSHA, Mr. Keeling’s nomination will require Senate confirmation.  During the first Trump Administration, the Republican-led Senate never brought Trump’s OSHA nominee, Scott Mugno, up for a confirmation vote. We have no indication yet as to when the Senate will hold hearings on Mr. Keeling’s nomination.

Mr. Keeling has held positions overseeing occupational safety at large employers specializing in materials handling and delivery. Mr. Keeling would bring extensive experience with safety and health, as well as an understanding of OSHA agency enforcement actions against complex organizations. We anticipate Mr. Keeling will bring a more pro-employer orientation than the Biden Administration OSHA led by Doug Parker, and will show more openness to OSHA voluntary protection programs (VPP), which employers can use to partner with OSHA and proactively enhance their safety programs. OSHA under the Biden Administration moved to install new regulations protecting workers from heat illness and workplace violence. We expect a Keeling-led Trump OSHA will delay or terminate those regulatory efforts. We also expect OSHA to announce that employers and property owners will have the authority, going forward, to determine which third parties can join OSHA onsite inspections at non-union-represented workplaces. We have heard anecdotes that numerous OSHA employees – particularly Assistant Area Directors – have accepted the so-called “Department of Government Efficiency”-encouraged buyouts. Departures of key OSHA staff would force Mr. Keeling to pursue his agendas with a leaner, less-experienced team.

Per Bloomberg and OSHA sources, Amanda Laihow has been nominated as OSHA Deputy Assistant Secretary. Ms. Laihow is a former Commissioner and General Counsel of the Occupational Safety and Health Review Commission. Ms. Laihow is widely respected in the safety and health community.

Per Bloomberg Law, President Trump plans to name Wayne Palmer of Virginia to lead the Mine Safety and Health Administration. Mr. Palmer served as deputy assistant secretary for the MSHA during the first Trump administration.

Seyfarth Synopsis: As of February 3, 2025, California’s COVID-19-specific workplace regulations will expire, though employers must still track COVID-19 cases until February 3, 2026. Cal/OSHA can enforce COVID-19 as a workplace hazard under the Injury Illness Prevention Program standard, making it prudent for employers to consider infectious disease prevention in their IIPP.

Since 2020, California employers have had to comply with Cal/OSHA’s COVID-19-specific regulations. First there was the emergency temporary standard (“ETS”), followed by the 2-year non-emergency “permanent” standard. But as of February 3, 2025, most provisions will expire and no specific regulatory requirements addressing COVID-19 as a workplace hazard will remain. However, there are two important considerations to keep in mind:

  1. The requirement from the non-emergency “permanent” COVID-19 regulation to keep a record of and track all COVID-19 cases in a log does not expire until February 3, 2026. From a practical standpoint, employers may be maintaining empty COVID-19 logs, as  there’s no regulatory mandate for employers to require employees report if they have COVID-19. And there’s no regulatory requirement that employers take any particular action upon becoming aware of an employee’s COVID-19 positive status, such as contact tracing or notification to close contacts. Nevertheless, employes must continue to record employee COVID-19 cases on a log.
  2. Cal/OSHA can still enforce COVID-19 as a workplace hazard under the Injury Illness Prevention Program (IIPP) standard. For this reason, it’s prudent for employers to incorporate basic infectious disease prevention protocols into their IIPP, such as encouraging sick employees to report their illnesses and to stay home until recovered.

For any questions about these changes or other Cal/OSHA regulations, please reach out to a member of our Workplace Safety & Environmental Team. We are ready to assist with navigating these updates and ensuring compliance and to ensure you stay informed and able to maintain a safe workplace.

Seyfarth Synopsis: Once again, employers are required to submit OSHA Forms 300, 301 and 300A online via OSHA’s Injury Tracking Application (ITA).

OSHA requires some employers to upload 2024 OSHA Form 300 log, Form 300A Summary, and Form 301 Incident Report information to its Injury Tracking Application (ITA) by March 2, 2025. Users may manually enter data to the secure ITA website, upload a CSV file to add multiple establishments at the same time, or transmit data electronically via the API (application programming interface).

Only certain employers are required to comply with the electronic submission requirements. Employers must consider the number of employees and industry classification at a specific site establishment, rather than at the entire Company.

Employers must submit Form 300A Summary data for an establishment if it meets one of the following criteria:

  • 250 or more employees and is not in an industry listed in the Exempt Industries list in Appendix A to Subpart B of OSHA’s recordkeeping regulation, or
  • 20-249 employees and is in an industry listed in Appendix A to Subpart E.

Employers must also submit Form 300 Log and Form 301 Incident Report data for an establishment if it has 100 or more employees and is in an industry listed in Appendix B to Subpart E.

Certain State Plans (e.g. Minnesota) require additional private sector establishments to submit 300A and 300/301 data. Private sector employers in these State Plans should contact their State Plan for guidance about what is required to be submitted.

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.

Employers 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. Employers may also wish to review OSHA’s Injury Tracking Application training video.

OSHA is now sharing ITA data and third party tracking services are mining it. Employers must be even more vigilant to ensure that all data they submit is accurate.

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.

OSHA enforces almost 1,000 standards and tens of thousands of individual regulations related to General Industry, Construction, Maritime, and other industries. Once again, OSHA released its preliminary data for the top ten most frequently cited standards for FY 2024 at the National Safety Council Safety Congress & Expo. Final FY 2024 data will be released in early-April 2025 to allow inspection data to close following the end of the fiscal year on September 30, 2024.

Reflecting OSHA’s 2024 focus on falls, fall protection general requirements in construction again tops the list. Respiratory protection saw the biggest relative increase in position, demonstrating a greater focus of airborne hazards in General Industry workplaces. To reduce the risk of incidents and OSHA citations, employers and safety managers would be wise to focus on the safety hazards associated with these standards.

  1. Fall Protection – General Requirements (1926.501): 6,307 violations
  2. Hazard Communication (1910.1200): 2,888
  3. Ladders (1926.1053): 2,573
  4. Respiratory Protection (1910.134): 2,470
  5. Lockout/Tagout (1910.147): 2,443
  6. Powered Industrial Trucks (1910.178): 2,248
  7. Fall Protection – Training Requirements (1926.503): 2,050
  8. Scaffolding (1926.451): 1,873
  9. Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102): 1,814
  10. Machine Guarding (1910.212): 1,541

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

Seyfarth Synopsis: The federal Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (“EPA”) have published their 2025 increases to civil penalties.

We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. The agencies have now finalized the 2024 inflation adjustments, which increase the penalties.

Under the rule, the new maximum OSHA civil penalties for 2025 will be increased by 2.6%:

 2025 Penalties2024 Penalties
Other than Serious Violations:$16,550$16,131
Serious Violations:$16,550$16,131
Repeat Violations:$165,514$161,323
Willful Violations:$165,514$161,323
Failure to Abate (Per Day):$16,550$16,131


The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2025, for violations occurring after July 15, 2024.

USEPA also updated their penalties based upon inflation numbers from 2024. Readers familiar with USEPA’s penalty structure know that environmental statutes typically set out a “per day” penalty, as well as a maximum statutory penalty. However, certain statutes allow for civil judicial enforcement that does not carry a maximum statutory penalty.

For 2025, USEPA updated penalties under all of the major environmental statues (including the Toxic Substances Control Act, Federal Insecticide, Fungicide and Rodenticide Act, Oil Pollution Control Act, Safe Drinking Water Act). As an example of the civil penalty increases for 2025, the chart below shows the increases under the major environmental statutes: the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA):

2025 Penalties2024 Penalties
Clean Air Act                        
Daily: Maximum (per violation):		$59,114 – $124,426
$472,901		$57,617 – $121,275
$460,926
Clean Water Act                   
Daily: Maximum (per violation):		$27,378 – $68,445
$342,218		$26,685 – $66,712
$333,552
RCRA Daily:$74,943 – $124,426$73,045 – $121,275
CERCLA Daily:
(including EPCRA)
Maximum (per violation):		$71,545

$214,637		$69,733

$209,202


EPA’s 2025 penalties are effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after January 8, 2025. EPA’s 2024 penalties remain effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after December 27, 2023 but before January 8, 2025.

DOL and EPA are required to continue to adjust maximum penalties for inflation by January 15 of each new year.

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

Seyfarth Synopsis: Ongoing wildfires in Southern California trigger Cal/OSHA regulations that require employers to train and protect employees from wildfire smoke. The regulation applies to most outdoor workplaces, requiring employers to provide N95 respirators at certain AQI trigger levels, effective communication, and training on wildfire smoke hazards.

Devastating and fast-moving wildfires have destroyed thousands of homes and businesses in several parts of Southern California, resulting in tragic deaths, upended lives, and disrupted workplaces.  As firefighters continue to battle the fires and bring them under control, the region has been blanketed by wildfire smoke, a recognized occupational hazard. Though smoke is often apparent via sight and smell, air quality can be impacted far beyond the range of the fires.

Cal/OSHA enforces a permanent regulation relating to Protection from Wildfire Smoke that applies to workplaces where the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke. Employers must track wildfire smoke in areas where employee exposure is anticipated, using one of several options provided authorized by Cal/OSHA, including the airnow.gov website maintained by U.S. EPA. As of January 9, 2025, AirNow approximates AQI Category of 150 or more (for all particulate matter, not just PM 2.5) in the red, purple, and maroon areas below:

 Courtesy of AirNow.gov as of 9:20am January 9, 2025.

Employers can anticipate that most of the workforce of Los Angeles County and surrounding areas could be occupationally exposed to wildfire smoke in the coming days above the AQI threshold. For instance, construction sites, warehouses with open bay doors, retail workers who go outdoors, and even indoor workplaces without mechanical ventilation that rely upon open windows will all be impacted by wildfire smoke.  Indoor workplaces and enclosed vehicles with mechanical ventilation and closed windows are exempt from the standard, as are employees who are only exposed to an AQI for PM 2.5 of 151 or above for less than one hour per shift. Firefighters engaged in wildland firefighting are not covered by the standard. 

Employers with covered employees must take the following steps to protect workers who may be exposed to wildfire smoke:

  • Monitor air quality using one of the methods set out in the rule, including AirNow.gov.
  • Identify harmful exposure to airborne particulate matter from wildfire smoke at the start of each shift and periodically thereafter by checking the AQI for PM 2.5 in regions where workers are located.
  • Reduce harmful exposure to wildfire smoke if feasible, for example, by relocating work to an enclosed building with filtered air, or to an outdoor location where the AQI for PM 2.5 is 150 or lower.
  • If employers cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, they must provide:
  • Filtering facepiece respirators such as N95 masks to all employees for voluntary use, and
  • Training on the hazard as required by the Injury and Illness Prevention Plan.

If employees must be exposed to an AQI for PM 2.5 of 500 or above, appropriate respiratory protection is mandatory and must be provided under a compliant respiratory protection program. Employers also need to establish and implement a system for communicating wildfire smoke hazards with employees and ensure that employees may report such hazards without fear of reprisal.

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

Seyfarth Synopsis: Continuing its assault on commonly used chemicals that pose risks to human health, the United States Environmental Protection Agency (“USEPA”) issued (but has not yet published in the Federal Register) bans on Trichloroethylene (“TCE” or “Tri”) and Perchloroethylene (“PCE” or “Perc”) under the Toxic Substances Control Act (“TSCA”).  The bans were first proposed in 2023, but have now been finalized.  Unless challenged or overruled by Executive Order under the new administration, the final version of the rules will be effective 30 days after publication in the Federal Register.

TCE and PCE are industrial solvents historically used in the dry cleaning industry, in industrial degreasing, and as chemical intermediaries in the chemical production industry.  TCE is commonly used in adhesives, paints, coatings, and refrigerants, while PCE is prevalent in dry cleaning and metal degreasing.  Though industry has been phasing out TCE and PCE since the mid-1980’s, USEPA’s rules complete the final part of the phaseout process and place significant barriers to any use of TCE or PCE in the future.

Both the TCE ban and PCE ban prohibit the manufacture, import, production,  processing, distribution in commerce, use (including consumer use) and disposal (including discharging into a pubic sewer system) the chemicals, and products containing the chemicals.  Although not limited to industries in listed NAICS codes, USEPA listed more than 225 NAICS codes, and listed a number of operations,  that will be affected by the bans.

The bans for certain uses and application will be phased in over time; TCE in consumer products and for commercial use will be banned within one year of the rules becoming final, with longer use allowed in certain industrial sectors.  For PCE, the ban for use in new drycleaning machines will take place within 6 months, with a 10-year phaseout for older drycleaning machines.  Consumer and commercial uses of PCE—other than older drycleaning machines—as well as many industrial uses, will be completely banned within 3 years.

For both TCE and PCE, USEPA has established strict workplace controls under the USEPA Workplace Chemical Protection Program (“WCPP”), and has indicted it has tried to make the WCPP rules consistent with OSHA requirements. However, USEPA’s attempt at regulating workplace safety and health under the WCPP may be inconsistent with OSHA’s jurisdiction over all-things related to occupational safety and health.

USEPA’s rules contain significant recordkeeping and reporting requirements for both TCE and PCE, and burdensome downstream notification requirements. In summary:

  • Manufacturers and Processors: Must maintain detailed records of TCE and PCE usage and manufacturing, including quantities manufactured, processed, and distributed. These records must be kept for at least five years.
  • Downstream Notification: Entities distributing TCE and PCE must notify downstream users of the restrictions and provide safety data sheets (SDS) outlining the hazards and safe handling practices.
  • Workplace Chemical Protection Program: For PCE, workplaces must implement a WCPP, which includes developing a detailed written exposure control plan, identifying, monitoring, and controlling worker exposure, providing personal protective equipment (PPE), and conducting regular training.
  • Annual Reporting: Companies must submit annual reports to the EPA detailing compliance with the new regulations, including any incidents of non-compliance and corrective actions taken.

USEPA’s new TCE and PCE rules are detailed and complex. Please do not hesitate to reach out to your Seyfarth attorney for further assistance.

Seyfarth Synopsis: With another dramatic reversal from a pro-labor Democratic administration to a second Trump administration, we anticipate that OSHA is likely to pivot away from its current enforcement-heavy agenda to a greater emphasis on cooperation with the business community.

As we try to anticipate the shifts of a second Trump administration, supported by a Republican-controlled Congress (albeit with very slim margins), these are some of our projections on what the future may hold for employers on the OSHA front during the coming second Trump Administration.

From the first Trump Administration, we know that the number of Occupational Safety and Health Administration (OSHA) inspectors and OSHA inspections dropped significantly.  During the Obama Administration (2008-2016), the number of OSHA inspectors fluctuated but generally stayed above 900, rising to 1,059 inspectors from 2009 to 2011, then declining to 943 from 2011 to 2015, then rising again in 2016 to 952 inspectors.  However, by the close of fiscal year 2020, the last year of the first Trump Administration, that number had fallen to 790.  By the end of 2023, there were 878 inspectors at OSHA, representing an 11% increase from fiscal year 2020.  Those numbers are likely to fall below 800 again, if not further.

We also know that that regulatory legal landscape is very different now than it was during the first Trump Administration, due in large part to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, No. 22-451, 603 U.S. __ (2024).  There, the Supreme Court held that courts, not agencies, are best situated to interpret ambiguous statutory provisions, even in areas of agency expertise.  In doing so, the Supreme Court has reined in agencies, like OSHA, from effectuating their enforcement agenda based on the agency’s own interpretations of its regulations.

Against that background, and consistent with the soon-to-be-president’s stated goal of a more limited federal government, including less federal government involvement in the workplace, we can expect:

  • Fewer and slower inspections and a slimmer regulatory agenda.  During the first Trump Administration, OSHA faced initial years of flat budgets and OSHA had a difficult time competing for safety professionals with private industry when trying to hire compliance officers.  The agency will very likely face the same pressures again during the second Trump Administration.  We also anticipate fewer new OSHA regulations, fewer OSHA Emphasis Programs focusing enforcement on specific hazards and industries, and less programmed inspection activity.
  • Substantially reduced emphasis on whistleblower and anti-retaliation claims.  The Biden Administration invested significant resources in bolstering OSHA’s and the Department of Labor’s whistleblower investigation programs.  We anticipate a rollback of those efforts and potential return to more business-friendly Voluntary Protection Program (VPP) and cooperative compliance programs over time.  
  • Abandonment of OSHA’s heat safety rule.  OSHA published its proposed heat safety rule and began accepting public comments in summer 2024.  The rule would apply to all employers and be triggered when employees are exposed to temperatures of 80ºF for more than fifteen minutes in any given sixty-minute period.  The public comment period will close on December 30, 2024, and there will very likely not be enough time to consider the public feedback and finalize the final rule before the end of the Biden Administration on January 21, 2024. Republican elected officials recently have expressed opposition to heat illness protection, with the Texas and Florida governments passing laws preventing municipal rules relating to water breaks. Given the anti-regulatory orientation of a second Trump Administration OSHA, we anticipate OSHA bringing the heat illness rule-making process to a screeching halt.
  • Potential withdrawal of OSHA Walkaround Rule.  On April 1, 2024, the Federal Register published OSHA’s final rule revising its regulations regarding whom employees can authorize to act as their representative(s) to accompany compliance officers during on-site OSHA inspections.  The revised regulation clarifies that employees have the right to designate a non-employee, third party to be their representative during the physical walkaround. In doing so, OSHA has effectively indicated non-unionized employees can look to unions for support during an OSHA inspection. 

The rule is currently the subject of litigation in Texas; a coalition of business associations has filed a lawsuit against OSHA, captioned Chamber of Commerce of the United States of America, et al. v. OSHA, et al.  Even if the Chamber of Commerce does not prevail, a Trump-controlled Department of Labor could choose to withdraw the new rule. The rule already passed the period for withdrawal by Congress under the Congressional Review Act.

  • Leaders with pro-business leanings overseeing OSHA.  During the Biden Administration, the Department of Labor was led by individuals with pro-labor ties: former union leader and Boston Mayor Marty Walsh, and Julie Su, the former head of California’s Labor and Workforce Development Agency who formerly worked as a civil rights lawyer.  OSHA was led by Doug Parker, who began his legal career as a staff attorney at the United Mine Workers of America.  President Trump is likely to nominate an Assistant Secretary of Labor for OSH with ties to the business community rather than organized labor. 

Employers will recall, though, that OSHA went without a confirmed head of the agency during the entire first Trump Administration after President Trump nominated Scott A. Mugno, formerly the Vice President of Safety, Sustainability and Vehicle Maintenance at FedEx Ground, for the role.  His nomination never received U.S. Senate approval, and Deputy Assistant Secretary of Labor Loren Sweatt remained in charge of the agency until the Biden Administration.

In a somewhat surprising move, President-elect Trump has proposed Republican Congresswoman Lori Chavez-DeRemer as Secretary of Labor.  Ms. Chavez DeRemer, who was defeated by her Democratic opponent in November, is known as a relatively pro-labor Republican and past supporter of the PRO Act, a legislative effort during the Biden Administration to protect Union organizing rights.  While Ms. Chavez-DeRemer may face opposition in the Senate, we anticipate she would be more open to union policy agendas, including maintaining the OSHA Walkaround Rule discussed above.  President-elect Trump has not yet nominated an Assistant Secretary of Labor for OSH; the choice of nominee may further clarify the agency’s enforcement agenda for 2025.

  • Focus on egregious and willful offenders, limiting penalties for first time offenders and small businesses.  While President-elect Trump has occasionally distanced himself from Project 2025, many believe it contains a reasonable forecast of policy goals for the second Trump Administration, including with respect to OSHA.  Chapter 18 of the plan, which focuses on the Labor Department and related agencies, refers to OSHA in this way:  (1) it proposes that Congress and the DOL should “exempt small business, first-time, non-willful violators from fines issued by the Occupational Health and Safety Administration”; (2) the DOL should clarify that a home office is not subject to OSHA regulations; (3) federal labor agencies should use their discretion under the law to “exempt small entities from regulations where possible”; and (4) OSHA’s focus should be on health and safety inspections on egregious offenders. While we foresee Trump administration support for a rule limiting OSHA penalties to small businesses receiving their first OSHA citation, we do not anticipate that OSHA will exempt small general industry and construction employers from most OSHA standards.

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

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

Seyfarth Synopsis: OSHA recently unveiled an online tool allowing the public to access severe injury reports, injury trends over time, geographic trends, and trends specific to each employer.

OSHA’s new Severe Injury Report dashboard allows the public to search and download data by year, industry NAICS code, state, establishment name (i.e., employer), and Occupational Injury and Illness Classification System codes. The dashboard includes information on all severe injuries reported by employers covered under federal OSHA from 2015 through the end of 2023.

OSHA defines a severe injury as “an amputation, in-patient hospitalization, or loss of an eye.”

Image from OSHA.

OSHA’s new dashboard continues its years-long push to obtain compliance by publicly shaming employers and raises concerns about data interpretation and improper use by third parties. Now, for each employer under federal OSHA jurisdiction, any member of the public can see injuries, hospitalizations, and amputations over a 10-year period, including in visual form such as a graph. Requestors will also get national trends and a pie chart of top five events and exposures. Anyone with internet access can search by NAICS code, types of events, and body parts affected to compare Company data to industry data.

This tool provides injury data without contextual information or consideration of other metrics taking employer size and other trends into account – all of which could present a fuller picture of an employer’s total injury rate. We anticipate that third party tracking services will use OSHA’s now publicly-available data to track companies and their alleged injury risks based on only a partial snapshot. The publication of this data further reinforces the importance of accurately reporting injury data, assessing the risk associated with corresponding OSHA citations, and determining how they are best resolved.

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

By Daniel R. Birnbaum, Ilana R. Morady, Benjamin D. Briggs, and Patrick D. Joyce

Seyfarth Synopsis:  Following California’s Workplace Violence Prevention Plan regulation becoming effective, the California Division of Occupational Safety and Health (“Cal/OSHA”) recently published its draft Workplace Violence Prevention regulation.  It is seeking public comments by September 3, 2024, with an advisory committee hearing scheduled for later this year.

As we recently blogged, the State of California implemented one of the largest efforts at requiring employers to implement and enforce workplace violence protections in the country. SB 553, covering nearly every employer in the state, became effective on July 1, 202. As part of the legislation, Cal/OSHA has been ordered to develop a Workplace Violence Prevention regulation and present it to the Board before December 31, 2025. Cal/OSHA recently published its initial draft regulation (Title 8 CCR 3343), which contains more specific workplace violence prevention requirements, including engineering controls. Under SB 553, a new regulation must be adopted by December 31, 2026.

In the draft regulation, Cal/OSHA requires, among other things, that employers implement engineering controls and work practice (a/k/a “administrative”) controls appropriate for the workplace to eliminate or minimize employee exposure to identified workplace violence hazards. The draft regulation then goes on to define engineering controls to include:

electronic or mechanical access controls to employee occupied areas; weapon detectors (installed or handheld); enclosed workstations with shatter-resistant glass; deep service counters; spaces configured to optimize employee access to exits, escape routes, and alarms; separate rooms or areas for high risk persons; locks on doors; furniture affixed to the floor; opaque glass (protects privacy, but allows employees to see where potential risks are); improving lighting in dark areas, sight-aids, improving visibility, and removing sight barriers; video monitoring and recording; and personal and workplace alarms.

Work practice controls would be defined as including:

appropriate staffing levels; provision of dedicated security personnel; an effective means to alert employees of the presence, location, and nature of a security threat; control of visitor entry; methods and procedures to prevent unauthorized firearms and weapons in the workplace; employee training on workplace violence prevention methods; and employee training on procedures to follow in the event of a workplace violence incident or emergency.

While the standard was drafted by the Legislature as a “performance standard” that permits employers to choose the engineering and administrative controls best suited for their worksites to minimize exposure, Cal/OSHA’s draft regulation creates the realistic potential that the agency will enforce it as a “specification standard,” creating risk for employers who do not consider and implement the specific controls included in the definition.

Comments on the draft standard are due by September 3, 2024, with an advisory committee hearing scheduled for later this fall. Those in the regulated community can consider consulting with experienced counsel to assist in submitting comments to Cal/OSHA.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.