By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Welder on a construction site.Seyfarth Synopsis: The Federal Railroad Administration’s new Safety Advisory seeks to cover activities that fall outside the scope of FRA safety regulations, but within the purview of the OSHA regulations.

The Federal Railroad Administration (FRA) has just issued its Safety Advisory 2016–02 (November 28, 2016). The Advisory is, according to the Agency, “out of concern for the number of railroad and railroad contractor fatalities that occur when roadway workers perform certain activities that fall outside the scope of FRA’s safety regulations, but within the purview of the U.S. Occupational Safety and Health Administration’s (OSHA) regulations.”

We had previously blogged on the FRA’s amendments to its Federal Track Safety Standards.

This Safety Advisory indicates that it is a “reminder” for railroads and railroad contractors, and their employees (including roadway workers), of the importance of identifying hazardous conditions at job locations, conducting thorough job safety briefings to discuss the hazardous conditions, and taking appropriate actions to mitigate those conditions. The Advisory seeks to remind railroads, railroad contractors, and their respective employees that “OSHA’s job safety regulations may apply to certain roadway worker activities” and offers recommendations for hazard recognition strategies and challenge procedures that may improve roadway worker safety while roadway workers are engaged in activities subject to OSHA’s regulations. The FRA notes that the Advisory is responsive to the National Transportation Safety Board’s (NTSB) Recommendations R–14–33, R–14–35, and R–14–36.

The Advisory follows on the June 10, 2016, final rules addressing roadway worker safety. One of the rules amended the FRA’s Roadway Worker Protection (RWP) regulations (81 Fed. Reg. 37840, 49 CFR part 214, subpart C), while the second rule revised the FRA’s alcohol and drug regulations (81 Fed. Reg. 37894, 49 CFR part 219).

In research, the FRA had found that between January 1, 2000, and December 31, 2015, over 60 roadway worker fatalities occurred while the roadway workers performed work not covered by FRA’s safety regulations. In adopting this Advisory, it concluded that when railroad employees are engaged in activities outside the scope of the FRA’s safety regulations, “they may be required to comply with OSHA’s regulations, such as 29 CFR part 1910 (Occupational Safety and Health Standards) and 29 CFR 1926 (Safety and Health Regulations for Construction).” Specifically, railroads and railroad contractors may be required to implement policies and procedures mandated by OSHA relating to the working conditions for roadway workers.

Accordingly, the FRA Safety Advisory recommends railroads and railroad contractors:

  1. Develop hazard-recognition strategies identifying and addressing existing conditions posing actual or potential safety hazards, emphasizing the contributing factors or actions involved in roadway worker-related fatalities occurring since 2000;
  2. Provide annual training to roadway workers on the use of hazard recognition strategies developed by the railroad or the railroad contractor;
  3. Institute procedures for mandatory job safety briefings compliant with OSHA’s regulations prior to initiating any roadway worker activity. Consistent with OSHA’s regulations, roadway workers should use hazard-recognition procedures to identify potential hazards in their job briefings and then determine the appropriate measures to mitigate the identified hazards. If an unforeseen situation develops during work performance, roadway workers should stop working and conduct a second job briefing to determine the appropriate means of mitigating the new hazard; and
  4. Develop and apply Good Faith Challenge Procedures for all roadway workers who, in good faith, believe a task is unsafe or an identified hazard has not been mitigated.

In conclusion, the FRA encourages railroad and railroad contractor industry members to “take actions consistent with the preceding recommendations and any other actions that may help ensure the safety of roadway workers.”

Employers in these industry segments should consider whether these “recommendations” will be enforced as requirements, as it is likely that Agency inspectors may be looking for compliance with the Advisory, especially if an incident should occur.

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

By Benjamin D. Briggs, Brent I. Clark, James L. Curtis, Mark A. Lies, II, Patrick D. Joyce, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: The Federal District Court has denied industry’s request to enjoin OSHA’s new rules on mandatory post-accident drug screenings and safety incentive programs, workplace retaliation, and requiring employers to post OSHA logs electronically.

We had previously blogged about the Occupational Safety and Health Administration’s new rule on drug-testing, retaliation claims, and accident reporting. In response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016). Despite the pending lawsuit, OSHA previously issued an interpretative guidance on the new rule.

The Court just issued its decision denying the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm in the absence of a preliminary injunction. Slip Op. 7. “Moreover, the court agrees with Defendants that the Rule simply incorporates the existing prohibition on employer retaliation against employees for reporting work–related injuries and employer procedures that would discourage a reasonable employee from reporting an injury.”

The Court’s ruling is not on the merits of the case but rather, is limited to the request for a preliminary injunction. However, it is unclear whether the Plaintiffs will continue to pursue this litigation given the Court’s refusal to preliminarily enjoin the rule.

The new rule will take effect on December 1, 2016.

The Substance of the New Rule as Enacted

The new rules are complex. First, a new anti-discrimination and anti-retaliation rule will apply to all employers. This rule requires all employers to inform employees about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses. OSHA also interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting. Additionally, the new rule prohibits incentive programs that are solely based on providing employees with benefits for not having workplace injuries. OSHA’s belief is that such policies chill employees from reporting legitimate workplace injuries in order to receive the benefit. OSHA’s new rule also allows compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act.

The new rule also requires that large employers and employees in specific high hazard industries file their injury and illness information electronically with OSHA. OSHA intends to release this employer injury and illness information publicly on its website, believing that this will “shame” employers into improving workplace safety and health. OSHA believes that the electronic data submission requirement would also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials. The electronic filing portions of the rule begin to take effect in 2017.

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 James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Warehouseman after accident at heightSeyfarth Synopsis: Despite Congressional direction to the contrary, OSHA just adopted a significant 500+ page final rule on industry, and only provided employers sixty days to comply!

Despite a Congressional “request” that agencies not move forward on new regulations during the transition to the Trump administration, the Occupational Safety and Health Administration recently issued a massive 513 page final rule revising and updating its general industry standards on walking-working surfaces, including ramps, ladders, gangways, roofs, and other surfaces.

While this rulemaking has been in the works since the 1990s, the original 293 page proposed rule was published in 2010. 75 Fed. Reg. 28861 (May 24, 2010). Now, without any further advance warning, OSHA has promulgated the final rule and provided only sixty days for compliance.

The final rule includes new and revised provisions addressing fixed ladders, rope descent systems, fall protection systems and criteria, and training. In addition, the final rule adds requirements on the design, performance, and use of personal fall protection systems.

In commenting on the new rule, outgoing OSHA Administrator Dr. David Michaels said that the “rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries.” “OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls.” Dr. Michaels indicated that the rule should also increase the “consistency between general and construction industries, which will help employers and workers that work in both industries.”

According to OSHA, the “rule’s most significant update is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level, prohibiting the use of body belts as part of a personal fall arrest system, and requiring worker training on personal fall protection systems and fall equipment.”

The new standard will affect 6.9 million establishments that employ 112 million employees. OSHA also found that the ladder training will apply to 5.2 million employees engaged in the construction, installation, maintenance, repair, and moving operations in general industry.

Excluded from the new rules are employees that fall outside of OSHA’s jurisdiction due to location or operational status, such as Department of Transportation (railroad and trucking) responsibilities, or those that are subject to unique industry specific fall protection standards, such as telecommunication and electric power generation, transmission, and distribution.

OSHA estimates that full compliance with this rule would prevent an estimated over 5,800 injuries and 29 fatalities per year.

Rule Timeline

The rule will be effective beginning January 17, 2017 — providing employers very little time to come into compliance! However, some of the provisions have delayed effective dates, including:

  • May 17, 2017 – train employees on fall and equipment hazards;
  • July 17, 2017 – ensure exposed workers are trained on fall hazards;
  • July 17, 2017 – ensure workers who use equipment covered by the final rule are trained;
  • November 20, 2017 – inspect and certify permanent anchorages for rope descent systems;
  • November 19, 2018 – install personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures;
  • November 19, 2018 – ensure existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system; and
  • November 18, 2036 – replace cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet.

For employers, adoption of this rule will represent a significant challenge.

OSHA’s rule was published with a Fact Sheet and a “Questions and Answers”.

Congressional Review

The new Rule could come under review by the Trump administration or be subject to the Congressional Review Act (CRA) (5 U.S.C. §§ 801-808), in which lawmakers have 60 legislative days to overturn a regulation from the current or, in this case, previous administration. If lawmakers are not in session for a full 60 days after enactment of the new rule before adjourning their final session, the clock resets, and the new Congress is given another 60 days to act on the new rule.

The only time the CRA was used occurred in 2001, when it was used to overturn an OSHA standard on ergonomics that had been implemented in the final days of the Clinton administration.

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 Andrew H. Perellis, Kay R. Bonza, and Patrick D. Joyce

Seyfarth Synopsis: With a dramatic change from a progressive democratic to a conservative republican administration, we anticipate that EPA is not only likely to pivot away from an enforcement heavy to a more business friendly agenda, it is also likely to abandon many of the previous administration’s landmark climate regulations and take a more measured approach to climate change.

The U.S. presidential election outcome has left many with questions about what to expect with the new administration and a Republican-controlled Congress. However one thing is certain: we will experience a 180 degree shift in current environmental policy when Donald Trump takes office in January 2017.  Below is a synopsis of the key environmental changes we expect to see under the Trump administration, although, of course, nothing is certain given the overall lack of information regarding Mr. Trump’s policy proposals and no background as to how he will act as an elected official.

Regulatory Reform

Mr. Trump has stated that he will likely issue a temporary moratorium on all new environmental regulation, and plans to strike regulations which his administration deems “unnecessary” and that “kill jobs and bloat government.”  Specific rules Mr. Trump has singled out to “eliminate” include: the Interior Department’s proposed Stream Protection Rule to safeguard communities from coal mining operations; the EPA and Army Corps of Engineers’ Clean Water Rule redefining water bodies subject to federal jurisdiction and protection; and EPA’s Clean Power Plan which requires states to develop strategies to reduce carbon dioxide emissions from power plants.

In addition, currently proposed EPA rules will likely not be made final, and environmental regulations facing challenges in the courts could be weakly defended by the Justice Department at the direction of the new administration. It is also possible any regulations that make it to the U.S. Supreme Court will be struck down by a conservative Court. Rescinding regulations that do not fall in line with the new administration is a possibility, but one that requires another EPA rulemaking process that may face challenges by environmental groups and states in support of the regulations.

Energy

Mr. Trump has indicated he has plans to revamp U.S. energy policies to make the U.S. a net energy exporter by opening onshore and offshore leasing on federal lands and waters to encourage production of energy resources. He also has hinted at plans to review all “anti-coal regulations,” rescind the coal mining lease moratorium on new federal coal leases announced in January 2016, and open up more public land for fossil fuel extraction. Eliminating the proposed Stream Protection Rule will remove regulatory requirements for the coal mining industry to consider the effects of their operations on groundwater, surface water, and endangered species, making it cheaper and easier to mine coal.  At the same time, the new administration is likely to focus on promoting policies and regulations to develop the infrastructure necessary for the export of fossil fuels.

While the fossil fuel industries may receive less scrutiny under environmental regulations under the Trump administration, the new administration may not change the renewable energy sector significantly because individual states have made significant progress in this area. For example, many states now require utilities to draw a percentage of their generation capacity from renewable energy sources and have implemented policies and set future goals to increase the use of renewable sources.  Corporations are increasingly procuring their own power, from rooftop solar energy to utility-scale wind farms, all of which are contributing energy to the electric grid.  Federal regulation that may interfere with states’ progress in the renewable energy sector is unlikely given Mr. Trump’s disfavor for regulations and the Republican position against limiting states’ rights.

Climate Change

Under the new administration, and with climate change skeptic Myron Ebell on the shortlist to become EPA Administrator, regulations for controlling greenhouse-gas emissions face a high likelihood of being scrapped, including the Clean Power Plan, mentioned above, and the Obama administration’s Climate Action Plan.  It is also highly like the U.S. will back out of the Paris Agreement, where more than 190 countries agreed to reduce their carbon dioxide emissions and limit global warming to below two degrees Celsius.  The agreement calls for “appropriate financial flows, a new technology framework and an enhanced capacity building framework” to support action by developing and vulnerable countries.  While formally withdrawing from the agreement may prove difficult due to a time-specific exit clause barring exit for three years from the date of ratification, followed by a one-year waiting period upon a request to withdraw, the new administration could opt to ignore the agreement and refuse to provide financial aid.  Without the participation of the U.S., the world’s second-largest greenhouse gas polluter, the goal to limit global warming may be unattainable.

Supreme Court and Agency Decision-making

With a Republican president and Republican-controlled Congress, a conservative Justice will almost certainly be appointed to the U.S. Supreme Court and as a result, we expect the Court to be less deferential to agency decision-making. We had previously blogged about the U.S. Supreme Court’s decision in Perez v. Mortgage Bankers Association and indicated that conservative leaning Supreme Court justices have called into question whether agency interpretations of their own regulations should be given any judicial deference.  The appointment of a conservative Justice could tip the scale in favor of curbing the level of deference given to agency interpretations, thereby prompting agencies like the EPA to undertake the formal rulemaking process more frequently to amend their interpretations of existing rules.

EPA’s National Enforcement Initiatives

The EPA selects National Enforcement Initiatives (NEIs) every three years, to prioritize its resources on the most significant environmental risks that can be mitigated by government action, and those issues where noncompliance is a significant contributing factor.  The NEIs for fiscal years 2017 – 2019 went into effect on October 1, 2016, and include: a focus on reducing air pollution from the largest sources and reducing hazardous air pollutants; ensuring energy extraction activities comply with environmental laws; reducing pollution from mineral processing operations and reducing risks of accidental releases at industrial and chemical facilities; and protection the nation’s waters from industrial pollutants, raw sewage, contaminated stormwater, and animal waste.

These enforcement priorities will very likely shift under the new administration which has the ability to redirect resources from one priority to another. Given Mr. Trump’s focus on revamping the U.S. coal industry, he is likely to de-emphasize the enforcement of environmental laws in the energy extraction sector and instead opt for a business-friendly approach.  The EPA as a whole may begin to approach enforcement more reactively when incidents prompt intervention, rather than proactively to prevent environmental disasters.  Enforcement may be replaced by increased agency initiatives to promote compliance assistance and more heavily consider the costs of environmental compliance on the regulated community.  Decreased enforcement activity could in turn lead to citizen suits to force the EPA to enforce its regulations.

Conclusion

Navigating environmental policy under the new administration will likely involve paying closer attention to state regulatory regimes that will move to the forefront in instances of reduced federal regulation. EPA could shift a large portion of environmental regulation and enforcement to the states, subjecting multi-state companies to different state-specific regulatory requirements.  We will continue to monitor the changes sure to take place for environmental compliance and enforcement under the Trump administration and will provide more clarity as the situation unfolds.  However, keep in mind that the EPA is like a cargo ship out on the ocean; it takes time to change course.

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

By James L. Curtis, Brent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: With a dramatic change from a progressive democratic to a conservative republican administration we anticipate that OSHA is likely to pivot away from the enforcement heavy agenda to a more business friendly agency.

As we try to anticipate the President-Elect Donald Trump’s administration, supported by a Republican lead Congress, these are some of our thoughts and projections on what the future may hold for employers on the OSHA front.

Generally, we know from Candidate Trump claims that for the immediate future he may:

  • Propose a hiring freeze on all federal employees to reduce the federal workforce (except military, public safety and public health)
  • Propose a new requirement that for every federal regulation imposed, two existing regulations will be eliminated

While these claims are very broad in nature and offer no practical details on how they will be implemented, it sends a strong message of his goal of a more limited federal government and less federal government involvement in the workplace. Accordingly, these items may, to the extent that they are implemented, slow the frequency of planned inspections and the speed at which ongoing inspections and proposed citations are processed, and will likely halt (or dramatically slow) new regulations that may have been in the works. OSHA’s current pending and suggested rulemaking activities, such as its interpretation for narrowing the retail exemption under the Process Safety Management Standard, new permissible exposure limit (PEL) rules, and beryllium rules may all be re-considered and revamped in a new Republican administration.

Specifically, we know that David Michaels, PhD, MPH, Assistant Secretary of Labor for OSHA, will be leaving OSHA.  Michaels will likely be replaced by someone with a more pro-business perspective. However, we also know that the recently increased OSHA penalties are the law, therefore, will not likely be rolled back under the Trump administration.  We also believe that it is unlikely that the five year look back period for “repeat” violations will change.

As readers of our blog are aware, OSHA has recently proposed significant changes to the injury recordkeeping and anti-retaliation rules. Those changes are currently in litigation and OSHA has pushed back the effective date until December 1, 2016.  Given the change in administration, we would not be surprised if OSHA further delays implementation of these new rules.  If OSHA chooses to press forward with the new rules, they may be an early target for removal by the Trump administration.

We also believe that OSHA’s emphasis during the Obama administration on whistleblower and anti-retaliation claims will not be given the same focus under the Trump administration. Rather, we anticipate OSHA returning to more business friendly Voluntary Protection Program (VPP) and cooperative compliance programs over time.

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 Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: OSHA “strongly supports” EPA’s proposed updates to its existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act. The proposed changes seek to reconcile EPA requirements with OSHA and NIOSH requirements.

Dr. David Michaels, the Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration (OSHA), recently weighed in in favor of the U.S. Environmental Protection Agency’s (EPA) rulemaking concerning the Significant New Uses of Chemical Substances: Updates to the Hazard Communication Program and Regulatory Framework, Minor Amendments to Reporting Requirements for Premanufacture Notices. 81 Fed. Reg. 49598 (July 28, 2016).

We had blogged previously about the passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Chemical Safety Act). In signing the Bill on June 22, 2016, President Obama indicated that “The Frank R. Lautenberg Chemical Safety Act for the 21st Century will make it easier for the EPA to review chemicals already on the market, as well as the new chemicals our scientists and our businesses design.”

EPA’s regulations establishing workplace restrictions on the use of new chemicals had not previously considered existing OSHA controls. EPA subsequently proposed changes to its regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the OSHA Hazard Communications Standard (HCS), the OSHA Respiratory Protection Standard, and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. EPA’s proposed changes that reference OSHA regulations include: (1) a requirement that persons subject to significant new use rules (SNURs) use engineering and administrative controls to protect workers before resorting to use of personal protective equipment, similar to OSHA’s regulation at 29 C.F.R. § 1910.134(a)(1); (2) revisions to require a written hazard communication program that includes criteria for classifying chemical hazards in each workplace, similar to OSHA’s regulation at 29 C.F.R. § 1910.1200; and (3) a requirement that any safety data sheet developed to comply with OSHA or other requirements be submitted as part of the reporting requirements under the TSCA.

Assistant Secretary Michaels commented on the record in support of the EPA’s proposed revision to 40 C.F.R. § 721.63, Protection in the Workplace, to align with the OSHA’s Respiratory Protection Standard, at 29 C.F.R. § 1910.134(a)(1)). “OSHA supports a requirement for those subject to applicable significant new use rules (SNURs) to determine and use appropriate exposure controls per the hierarchy of controls to ensure worker protection.” With regard to the respiratory protection requirements in 40 C.F.R. § 721.63, Assistant Secretary Michaels commented that “most manufacturers and processors are already subject to and complying with the most updated NIOSH regulation for testing and certifying respirators. This proposed change also achieves compliance with 29 C.F.R. § 1910.34(d)(1)(ii), OSHA’s requirement that employers select NIOSH-certified respirators for the protection of workers should respirators be necessary.” Finally, Michaels commented that the EPA’s effort to align the classification of chemical hazards with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals, adopted by OSHA in 2012, provides “a common and coherent approach to classifying chemicals based on their hazardous properties” and will “reduce duplication in effort and burden for those subject to these requirements.”

Those in the chemical manufacturing and processing, and petroleum and coal manufacturing industries may wish to keep an eye out to see if EPA’s proposed amendments are adopted, as the new rule may ease the regulatory burden of complying with parallel EPA and OSHA regulations.

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

By Jeryl L. Olson

Urban PlannerSeyfarth Synopsis: The U.S. Army Corps of Engineers (USACE) has just issued a Regulatory Guidance Letter which provides to property owners (including developers) the right of appeal USACE Approved Jurisdictional Determinations.

On November 1, the U.S. Army Corps of Engineers (USACE) issued a Regulatory Guidance Letter (No. 16-01, October 2016) (RGL) which provides to property owners (including developers) the right of appeal of USACE Approved Jurisdictional Determinations (AJDs).

Jurisdictional determinations are used by USACE to confirm formal determinations by the USACE of the applicability of the Clean Water Act or Rivers and Harbors Act to tracts of land, i.e., whether property contains wetlands or other water features. While jurisdictional determinations are discretionary, the USACE commonly issues jurisdictional determinations regarding the presence of wetlands when requested by owners.  In the new RGL, USACE has acknowledged that AJDs can have significant impacts on the use or development of property, and that such decisions can be appealed.

Both AJDs and Preliminary Jurisdictional Determinations (PJD) are common tools used by USACE to inform property owners about USACE decisions as to the presence of wetlands, streams, intermittent streams or other water courses on property, however, historically USACE has taken the position that its final AJDs were non-reviewable once issued. Because AJDs were until now not subject to appeal, property owners obtaining “unfavorable” USACE determinations of wetlands on their property were left with no reasonable alternatives for challenging such USACE determinations.

Owners could proceed to develop a property notwithstanding the determination, and await an enforcement action with potential criminal and civil penalties, or owners could proceed with the lengthy and costly permit process, and thereafter challenge the permit decision requiring a permit for development of or to a wetland.

As a result of the Supreme Court ruling earlier this year (U.S. Army Corps of Engineers v. Hawks Co., 136 St. 1807 (May 2016)) affirming AJDs are “final agency action” and thus immediately subject to appeal, USACE issued the RGL acknowledging the Supreme Court ruling that AJDs (but not PJDs) are reviewable.  The October 2016 RGL specifically supersedes all previous Regulatory Guidance Letters issued by USACE with respect to the reviewability of AJD determinations by USACE.

The new Regulatory Guidance Letter includes newly-developed USACE forms that may be used (but are not mandatory) in requests for AJDs and PJDs.

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

By Benjamin D. Briggs, Brent I. Clark, Joshua M. Henderson, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA has recently amended its definition of “repeat” for inspcetion citations to reconcile differences from the Federal OSHA program. The updated rules expand potential liability to California employers.

In August 2015 Cal/OSHA published a Notice of Proposed Rulemaking regarding Repeat citations. The purpose of the amendment was to make California’s “Repeat” violation classification more consistent with Federal enforcement standards by eliminating the “current geographic restrictions” for issuing a “Repeat” citation, and recalculating the starting time for calculating the look back period for a “Repeat” violation. The final Repeat Regulation rule was recently adopted and will be effective on January 1, 2017.

As noted in the Cal/OSHA Final Statement of Reasons, the Director determined that at a minimum, “she must amend the look-back period from three to five years….” “The Director has determined that under Labor Code section 50.7(d), she may not reject Federal OSHA’s recommendation to eliminate establishment/geographic restrictions, because doing so would make California’s Repeat enforcement policy less effective than the federal policy, thus jeopardizing future state plan funding.”

Starting January 1, 2017, California employers will be at risk of a Repeat citation that is based on a previous final citation issued to the same employer anywhere within the State of California.

Also, Cal/OSHA will be able to base a Repeat citation on a previous citation that is many as five (5) years old. Employers should examine their citation history and understand how the new rules may impact their risk of Repeat citations.

The revised rules, which become effective January 1, 2017, clearly increase the risk of Repeat citations and the higher penalties that come with such citations.

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 Annette Tyman, Lawrence Z. Lorber, Jaclyn W. Hamlin, and Brent I. Clark

BLACKLISTEDSeyfarth Synopsis: The first of several anticipated challenges to Executive Order 13673, “Fair Pay and Safe Workplaces,” has resulted in a preliminary injunction staying the implementation of some – but not all – aspects of the Executive Order and its implementing regulations. In a significant victory for the government contracting community, the Associated Builders and Contractors of Southeast Texas won an injunction staying the application of the reporting and disclosure requirements, as well as the prohibition on entering into mandatory pre-dispute arbitration agreements.  The Judge left the paycheck transparency provisions in effect, however, and as a result, government contractors must still plan for compliance with those requirements.

Introduction

For our readers that are interested in occupational safety and health topics, we are blogging our colleagues “Management Alert” below, with this introductory note. OSHA citations are covered among the labor laws covered by the Executive Order 13673 (Blacklisting Order). The way the Blacklisting Order reads is that the covered violations include citations which are not final, which are being contested by the employer, and which may ultimately be withdrawn through settlement or by a Judge once the employer has had a chance to present its defense.  The Blacklisting Order is another example of the government’s “guilty until proven innocent” approach to regulating businesses and employers.

Note also that the Blacklisting Order will be applicable under:

  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act of 1970 (including OSHA-approved State Plans equivalent to State Laws)
  • The Migrant and Seasonal Agricultural Worker Protection Act
  • The National Labor Relations Act
  • 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act
  • 41 U.S.C. chapter 67, also known as the Service Contract Act
  • Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity)
  • Section 503 of the Rehabilitation Act of 1973
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1972 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974
  • The Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • The Americans with Disabilities Act of 1990
  • The Age Discrimination in Employment Act of 1967
  • Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors)

In a significant victory for the government contracting community, a federal judge sitting in the U.S. District Court for the Eastern District of Texas partially stayed the implementation of Executive Order 13673, “Fair Pay and Safe Workplaces,” referred to in the government contracting community as the “Blacklisting Order.”  As discussed in more detail here, the Blacklisting Order would:

  1. Require government contractors to disclose “labor law violations” under fourteen different statutes and Executive Orders when bidding for or modifying contracts;
  2. Prohibit employers from entering into mandatory pre-dispute arbitration agreements with employees; and
  3. Require certain disclosures to independent contractors and employees concerning their employment status and information related to wages and hours worked.

When the White House issued the Executive Order, the government contracting community expressed concerns about the substantial burdens it would impose on businesses and noted that the Order seemed to exceed the limits of Executive power.  Judge Marcia Crone, a federal judge in Texas, agreed.  Late on October 24, 2016, Judge Crone issued a preliminary injunction blocking: (1) the labor law violations disclosure requirements and (2) the prohibition against entering into mandatory pre-dispute arbitration agreements.  The preliminary injunction applies to all federal contractors subject to the Executive Order and it blocks all aspects of the requirements and the implementing regulations, except the paycheck transparency provision.

The Plaintiffs, an association of government contractors in Texas, argued that the Executive Order and its implementing regulations and guidance exceeded Executive power and would impose irreparable harm on their businesses.  Judge Crone found the Plaintiffs’ arguments compelling with regard to the reporting and disclosure requirements and arbitration clause prohibitions, and stayed the implementation of those requirements.

In her decision, the Judge addressed several of the arguments raised by the contracting community Plaintiffs and the government Defendants.

  • The Judge found that the Executive Order and its implementing regulations and guidance likely exceeded the limits of Executive power.
  • She noted that fourteen statutes and Executive Orders of which the Blacklisting Order requires contractors to publicly disclose “violations” all have their own detailed enforcement mechanisms and penalties.
  • The Judge noted that under the Blacklisting Order, a contractor could face debarment or disqualification even if it was contesting a violation or over nothing more than the issuance of a citation by an individual government agency official.
  • Judge Crone also found persuasive the Plaintiffs’ arguments that the provisions of the Executive Order and Final Rule which restrict or prohibit certain mandatory pre-dispute arbitration agreements are in violation of the Federal Arbitration Act and the government’s general policy in favor of arbitration.
  • The Judge found the reporting and disclosure requirements to be “compelled speech” that likely violates the contractors’ First Amendment rights and also agreed that the Executive Order likely violates contractors’ Due Process rights by “compelling them to report and defend against non-final agency allegations of labor law violations without being entitled to a hearing at which to contest such allegations.”
  • Judge Crone found that the Executive Order is likely arbitrary and capricious “in view of the complex, cumbersome, and costly requirements . . . which hamper efficiency without quantifiable benefits.”

Although the contracting community’s victory is substantial, it was not complete, as Judge Crone left the paycheck transparency provisions to take effect on their regular schedule (starting on January 1, 2017).  The paycheck transparency provisions require that contractors with procurement contracts of $500,000 provide their employees with a document disclosing “the individual’s hours worked,  overtime hours, pay, and any additions made to or deductions made from pay.” For exempt employees, the document may omit information concerning overtime hours worked so long as the individual has been informed of his or her exempt status.  Covered contractors in states with equivalent paycheck transparency laws, such as New York and California, are deemed to be in compliance with the Executive Order’s requirements so long as they comply with their state’s paycheck transparency law.  Contractors should also be aware that there is always a possibility that the preliminary injunction may be lifted – whether by the Fifth Circuit or another federal court – and in that event, the reporting and disclosure requirements could be reinstated.  For that reason, covered contractors may wish to continue to collect data in case they find themselves once again subject to the reporting and disclosure obligations.

The request for – and subsequent partial granting of – a preliminary injunction staying the implementation of certain provisions of the Blacklisting Order is only the opening salvo in what is likely to be a long fight between the contracting community and the federal government.  As we discussed in our previous alert on the topic, multiple court challenges are possible, and the Blacklisting Order’s provisions may appear before Congress at some point.

Meanwhile, thanks to Judge Crone’s preliminary injunction, the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements are enjoined until further notice, while we continue to closely monitor developments.  Preliminary injunctions typically remain in effect at least until the conclusion of the underlying litigation.  The Plaintiffs may petition the court for the preliminary injunction to become permanent, blocking the government from enforcing the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements (unless the injunction is overturned).  Or the government Defendants may appeal to the U.S. Court of Appeals for the Fifth Circuit, perhaps paving the way for an ultimate ruling by the U.S. Supreme Court.  The ultimate resolution of the contracting community’s concerns about the Blacklisting Order remains to be seen.  One thing is clear, however: while government contractors should be pleased with their victory in Texas, they must still plan to comply with the paycheck transparency provisions.  The contracting community has won the first battle, but the war over blacklisting continues.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OFCCP & Affirmative Action Compliance Team, the OSHA Compliance, Enforcement & Litigation Team, or the Workplace Policies and Handbooks Team.

By Brent I. Clark, Joshua M. Henderson, and Craig B. Simonsen

shutterstock_65596348Seyfarth Synopsis: The California Division of Occupational Safety & Health Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care.

The California Division of Occupational Safety & Health (Cal/OSHA) Standards Board approved last week its regulations on Workplace Violence Prevention in Health Care, CCR Title 8, Section 3342. The Notice of Addition of Documents to California Code of Regulations was signed September 27, 2016, and the rule was passed by the Board on October 21, 2016. The draft has now been submitted to the Office of Administrative Law for review and approval (or not). If approved the rules will become final and will be submitted to the Secretary of State for promulgation.

We had blogged in 2015 about the Cal/OSHA draft proposed regulation that would require health-care employers, home health and hospice providers, and emergency responders to develop workplace violence-prevention plans, train their employees, and keep records related to workplace violence incidents. If adopted, the regulations also require certain hospitals to report violent incidents that resulted in an injury, involved the use of a firearm or other dangerous weapon, or present an urgent or emergent threat to the welfare, health or safety within 24 hours and all incidents within 72 hours.

Based on the definition of “reportable workplace violence incident” employers are required to report incidents that did not result in an injury if there was a high likelihood that injury, psychological trauma, or stress would result, or the incident involved the use of a firearm or other dangerous weapon. The regulations further require employers to take immediate corrective action where a hazard was imminent and take measures to protect employees from identified serious workplace violence hazards within seven days of the discovery of the hazard. Additionally, employers are required to maintain a “Violent Incident Log.”

The rule follows the enactment of SB 1299, requiring Cal/OSHA to have a workplace violence prevention regulation for healthcare workers promulgated by July 1, 2016. Yet, California was not alone. The regulation comes as emphasis on workplace violence increases in both federal and state plan OSHA jurisdictions. For instance, in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers”, in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA”, in December 2015 “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting”, and in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers”.

As part of the employer’s Injury and Illness Prevention Program (IIPP), under section 3342(c), the final rules require a “Workplace Violence Prevention Plan” (Plan) that is “in effect at all times in every unit, service, and operation. The Plan shall be in writing, shall be specific to the hazards and corrective measures for the unit, service, or operation, and shall be available to employees at all times. The written Plan may be incorporated into the written IIPP or maintained as a separate document”. In addition, the final rules do incorporate the “Violent Incident Log” provisions. The rules require that the “employer shall record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation”.

Covered employers in California should take care to evaluate their workplaces for potential workplace violence hazards and institute–and enforce–policies concerning training and reporting.  Certainly employers in California, or with a business presence in California, there is a heightened need to evaluate compliance with these new rules. In addition to modified policies, procedures, and training systems, these new rules may require substantial changes including physical facility changes and staffing increases.

Note that with or without these new rules, in California or out, an administrative enforcement action in the event of a workplace violence incident or related civil liability is a possibility. The new rules also incorporate substantial training, reporting, and recordkeeping provisions. Federal OSHA enforces workplace violence under the General Duty Clause. We would not be surprised to see the Federal OSHA referring to the California Rule in its citations in the future.

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 or the Workplace Policies and Handbooks Team.