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

Seyfarth Synopsis: Employers should prepare for the holiday shopping season and protect their employees from harm and injuries.

As the holiday shopping season approaches, OSHA has previously reminded retail and hospitality employers of the importance of taking safety precautions during the holiday season’s major sales events, such as Black Friday.

Holiday shopping has increasingly become associated with violence and hazards. There has been numerous instances of riots, shootings, and pepper-spray attacks in crowds looking for holiday deals.  In one case, a worker was trampled to death while a mob of shoppers rushed through the doors of a store to take advantage of a Black Friday sales event.  Events of violence and shooting at malls and retail establishments have become all too common in our society.  Additionally, retail distribution centers that fill customer orders are exceedingly busy at this time of year and often staffed with new and/or temporary workers.  Such increased staffing levels can lead to increased workplace accidents.

Under OSHA’s general duty clause, “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death.”  To minimize injuries in the workplace during the holiday season, OSHA’s website on Holiday Workplace Safety provides employers with recommendations for crowd management plans and safe practices for retail distribution centers.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings, should an accident 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 Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced a Request for Information (RFI) on safety improvement technologies for mobile equipment and for belt conveyors, both at surface mines. 83 Fed. Reg. 29716 (June 26, 2018).

In its RFI MSHA notes that “mining safety could be substantially improved by preventing accidents that involve mobile equipment at surface coal mines and metal and nonmetal mines and belt conveyors at surface and underground mines.”  As part of an “Awareness Campaign” on mobile equipment and conveyor belts, MSHA is seeking information on the role of engineering controls that that might (1) increase the use of seatbelts, (2) enhance the equipment operator’s ability to see all areas near the machine, (3) warn operators of potential collision hazards, (4) prevent operators from driving over a highwall or dump point, and (5) prevent entanglement hazards near moving or re-energized conveyor belts.  MSHA indicates that it is requesting this information and data to reduce the risk of accidents and to improve miner safety.

MSHA is also indicating that it will hold stakeholder meetings to provide interested stakeholders with an opportunity to discuss and share information about the issues raised in the RFI.  It will publish a separate notice announcing the stakeholder meetings in the Federal Register at a later date.

Comments and responses to the RFI are due by December 24, 2018.  Submissions and responses to the RFI may be found at docket number MSHA_FRDOC_0001.

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

By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).

The Final Rule, which will be effective on June 2, 2018, requires that:

  • Each working place be examined at least once each shift for conditions that may adversely affect safety or health of miners before work begins or as miners begin work in that place;
  • Mine operators promptly notify miners in affected areas of any conditions that may adversely affect their safety or health and promptly initiate appropriate corrective action. Notification is only necessary when adverse conditions are not promptly corrected before miners are exposed;
  • A record of the examination be made before the end of each shift, including the name of the person conducting the examination; the date of the examination; location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected, and the date of the corrective action (when that occurs); and
  • The record be made available to MSHA and miners’ representatives upon request.

The new rule imposes new requirements on mine operators, but is notably less burdensome that previous iterations of the workplace examination rule that has been in process for several years. For example, a previous proposed version of the rule would have required operators to examine workplaces before work began, whereas now the rule adds on “or as miners begin work in that place.” Also importantly, a previous version of the rule would have required operators to notify miners of all identified conditions, even if those conditions had been corrected before work began. Now, under the final rule, notification will only be required with respect to conditions that are not corrected. On a related note, operators need only make a record of conditions that are not promptly corrected.

Although the new rule is less burdensome on the regulated community than previous versions of the rule would have been, operators need to be mindful of potential pitfalls. The new rule appears to leave open the opportunity for MSHA to use operator examination records as “evidence” of a violation, or to support higher negligence findings. And of course the new requirements will provide MSHA with more bases to issue citations, since it will be a violation to not complete the various requirements under the new rule, including documentation of the date corrective action is completed for issues not promptly corrected.

MSHA is holding stakeholder meetings at six locations across the country to provide “outreach and compliance assistance materials on the Final Rule.” In addition, that Agency plans stakeholder meetings in Seattle, Washington, and at MSHA’s district offices by way of video teleconferencing at a later date.

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

By Benjamin D. Briggs, Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Smart technology setSeyfarth Synopsis: Keep your holidays happy and safe. At this time of year, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace environment for employees and customers and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn bring liability onto the employer.

The holidays are a time to redouble your focus on workplace safety. At this time of year, people can be distracted or tired and may be teaming with people they do not ordinarily work with due to others taking time off. Working with someone new, especially at high risk jobs, may be a recipe for disaster. It is important to ensure all employees are properly trained and qualified for the tasks they are being asked to perform, especially if a task is not within their normal job activities.

In addition, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace for employees, customers, and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn, bring liability onto the employer. The holidays are a good time to remind employees of drug and alcohol policies and to be on the lookout for violations of those policies. See Eleventh Circuit Says “NO” to Drunk Driving, and President Declares “National Impaired Driving Prevention Month”.

The holidays are also a time when your employees may be at risk for workplace violence, both from within the company and from third parties. Many employees will be excited about the time spent with friends and family, but many others may not have those opportunities. Be aware of the signs of a distressed and potentially violent employee. See for instance, Wave of Shootings Puts Workplace Violence Back in the Spotlight, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers. We have also blogged about workplace safety risks from shoppers and third-parties. See Holiday Shopping and Crowd Management Safety Guidelines for Retailers,

In addition be on the lookout for other holiday workplace liability issues, especially at company holiday parties. For instance, in Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties, we suggested that employers consider these tips to minimize your organization’s exposure to legal liability and, more importantly, prevent an undesirable incident from occurring at your office holiday party:

  • Prior to the party, circulate a memo to reiterate your company’s policy against sexual and other forms of harassment. Remind employees in the memo that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Ensure your dress code prohibits any form of revealing or provocative attire, and remind employees that the policy applies at company-sponsored events.
  • If appropriate, allow employees to invite a spouse or their children to the party. Many employees might think twice about their actions if spouses and/or children are present.
  • Consider limiting the number of alcoholic drinks or the time during which alcohol will be served. In either case, stop serving alcohol well before the party ends.
  • Serve food at the party so employees are not consuming alcohol on an empty stomach and make sure there are plenty of non-alcoholic alternatives available.
  • Host the party at a restaurant or hire a caterer. Remind bartenders that they are not permitted to serve anyone who appears to be impaired or intoxicated and to notify a particular company representative if anyone appears to be impaired.
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home. If an employee appears to be heavily intoxicated, have a manager drive the employee home or ride with the employee in a cab to ensure he/she gets home safely.
  • Check your insurance policies to ensure they cover the company adequately, including any accidents or injuries that arise out of a company party or event.
  • Promptly investigate any complaints that are made after the party, and take any necessary remedial action for conduct that violates company policy.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

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

bottleSeyfarth Synopsis: In a challenge brought by trade associations for the farm supply and fertilizer industries, the D.C. Circuit vacates OSHA memorandum narrowing the retail exemption from the PSM standard.

The U.S. Court of Appeals for the District of Columbia Circuit recently ruled against OSHA on a Petition for Review of an OSHA interpretative memorandum in Agricultural Retailers Ass’n & Fertilizer Inst. v. United States Department of Labor, No. 15-1326 (D.C. Cir. Sept. 23, 2016).

In this case, the Agricultural Retailers Association and the Fertilizer Institute sought review of a July 22, 2015 OSHA memorandum and interim policy interpretation that had significantly narrowed the Retail Facilities Exemption to the Process Safety Management of Highly Hazardous Chemicals (PSM) standard, 29 C.F.R. § 1910.119.   The challenged interpretation had a dramatic effect on agricultural retailers that provide fertilizers to end users in the agricultural industry.  In that regard, the interpretation swept in many previously-exempt fertilizer and farm supply retailers into coverage under the onerous PSM standard.

OSHA issued the interpretation after a 2013 explosion at a West, Texas fertilizer supplier left 15 people dead and many others injured. Under the interpretation, OSHA retreated from the so-called “50 percent test” for determining whether a seller of highly hazardous chemicals qualified for the retail exemption.  Under that test, an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user.”  Application of this test meant that fertilizer suppliers typically fell within the exemption despite having large quantities of highly hazardous chemicals at their establishments.  The challenged interpretation applied a different, much narrower, test to determine applicability of the exemption.  Under that test, retail facilities included only those “organized to sell merchandize in small quantities to the general public” as set forth sectors 44 and 45 of the NAICS Manual.  This definition precluded employers that sold or distributed large, bulk quantities of highly hazardous chemicals (i.e., farm and fertilizer supply businesses) from relying upon the retail exemption.

The thrust of the petitioners’ challenge to OSHA’s memorandum was that it was actually an OSHA standard, not an interpretation, and that, in turn, OSHA was required to follow rulemaking procedures, including notice-and-comment requirements. OSHA admittedly did not follow these procedures.  OSHA contended that rulemaking procedures did not apply because its action was a mere interpretation of a standard, and that its memorandum did not issue or modify a “standard.”  The D.C. Circuit rejected OSHA’s argument and agreed with petitioners.  In so doing, the court held that the memorandum amounted to a “standard within the meaning of the OSH Act” because its purpose was to correct “a particular significant risk,” rather than guide general enforcement.  Given that determination and OSHA’s admitted failure to follow rulemaking procedures, the court granted the petition and “vacated” OSHA’s memorandum.

For the time being, this means that employers (including agricultural retailers) may once again rely on the “50 percent rule” for determining applicability of the retail exemption to the PSM standard. How long that reprieve lasts remains to be seen given OSHA’s apparent commitment to this issue, but one thing is clear — any future change to the retail exemption will afford stakeholders the opportunity to be heard through notice-and-comment procedures.

In the meantime, we will continue to monitor and keep you updated on this issue as it develops.

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 and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: In this recent case a Federal Magistrate Judge finds that OSHA has gone too far in expanding an incident inspection into a wall-to-wall inspection.

A District Court Magistrate Judge recently recommended that the Court quash a warrant “improvidently granted” to OSHA to expand an accident investigation into a broader Regional Emphasis Program (REP) inspection. Report and Recommendation (R&R), In the Matter of the Establishment Inspection of Mar-Jac Poultry, Inc., No. 2-16-MC-004-JCF (N.D. GA August 5, 2016).

In attempting to expand the accident investigation into a much broader inspection under the REP, OSHA argued that there was overlap between the hazards that caused the accident and hazards addressed by the REP, as well as information reflected on the Company’s OSHA 300 logs showing work-related injuries leading to medical treatment or days lost from work. The Magistrate found that the fact that there was overlap between the hazards that triggered the accident and the hazards in the REP was not sufficient to expand the inspection to cover everything in the REP.  Rather, the inspection could only be expanded to cover those areas where OSHA had uncovered potential violations, in this case electrical issues.  The Magistrate also found that OSHA’s analysis of the OSHA 300 logs likewise confused “exposure to potential hazards with evidence of a possible violation.” The Magistrate said that “it may be true that enough injuries of a certain type could support a finding of probable cause to inspect an entire facility for a specific violation, but OSHA’s presentation on this point falls well short of that mark.”

The Magistrate found that the question was not whether potential hazards exist (all business have potential hazards), but whether potential OSHA violations existed, and OSHA had not made that showing. OSHA is currently in the process of filing objections to the Magistrate’s ruling in hopes that the District Court Judge will reverse this finding. We will update this blog once the District Court rules.

For employers, the important take-away from this case is that without specific and well-founded evidence of a potential OSHA violation, OSHA is not entitled to turn an incident inspection into a wall-to-wall inspection.

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 and Ilana R. Morady

iStock_000009254156LargeSeyfarth Synopsis: The proposed MSHA rule would require mine operators to examine their mines and to notify miners of dangerous conditions.

MSHA announced today that it has formally submitted a proposed mine examination rule for publication in the June 8, 2016 Federal Register.  81 Fed. Reg. 36818.

The proposed mine examination rule (RIN:1219-AB87) would require metal and nonmetal mine operators to: (1) examine their facilities before a shift begins; (2) explicitly notify miners of any dangerous conditions found; and (3) record their examinations and establish processes to fix hazards.  The current rule allows operators to examine mines during a shift.

MSHA will gather input on this proposed rule in four meetings to be held in Salt Lake City, UT (July 19), Pittsburgh, PA (July 21), Arlington, VA (July 26) and Birmingham, AL (Aug. 4).

Last year, MSHA chief, Joe Main, stated that tightening mine inspection requirements was one of his highest regulatory priorities.

By Andrew H. Perellis and Craig B. Simonsen

Power Lines and Pulp Mill PollutionThe U.S. Government Accountability Office (GAO) has just issued a report on Critical Infrastructure Protection with a finding that Department of Homeland Security (DHS) action is needed to verify chemical facility information and to better manage its compliance process. Report to Congress, GAO-15-614 (July 2015).

Risk Level for Facilities

The Report states that since 2007, DHS has identified and collected information from approximately 37,000 chemical facilities under the Chemical Facility Anti-Terrorism Standards (CFATS) program, and categorized approximately 2,900 of those as high-risk based on the collected data. The Report indicates, though, that DHS had used unverified and self-reported data to categorize the risk level for facilities evaluated for a toxic release threat. DHS defined a toxic release as one where if released, the chemicals could harm the surrounding populations.

One key input for determining a facility’s toxic release threat is the “Distance of Concern” that facilities report. That distance would be the area in which exposure to a toxic chemical cloud could cause serious injury or fatalities from short-term exposure. DHS required facilities to calculate the distance using a web-based tool and by following DHS guidance.

Following the DHS guidance and using a generalizable sample of facility-reported data in the DHS database, the GAO “estimated that more than 2,700 facilities (44 percent) of an estimated 6,400 facilities with a toxic release threat misreported the distance.” GAO suggests that by verifying that the data DHS used in its risk assessment, it could better ensure it has identified the high-risk chemical facilities.

Chemical Facilities Compliance Implementation

While DHS began conducting compliance inspections in September 2013, according to the GAO, it did not have a documented processes and procedure for managing the compliance of facilities that had not implemented planned measures outlined in their site security plans. As a result, GAO found that almost half (34 of 69) of facilities inspected as of February 2015 “had not implemented one or more planned measures by deadlines specified in their approved site security plans and therefore were not fully compliant with their plans.”

Additionally, GAO found variations in how DHS addressed 34 facilities, such as how much additional time the facilities had to come into compliance and whether or not a follow-on inspection was scheduled. While the variations may have corresponded with the DHS’s case-by-case approach, GAO suggested that having documented processes and procedures would ensure that DHS could manage noncompliant facilities and close security gaps in a timely manner. Also, because DHS still needed to inspect about 2,900 facilities, having documented processes and procedures could provide DHS with a “more reasonable assurance that facilities implement planned measures and address security gaps.”

By Alexander J. Passantino, Richard L. Alfred, Loren Gesinsky, James L. Curtis, and Meagan Noel Newman

In anticipation of a long, stormy winer, Seyfarth Shaw has prepared a Client Alert to help employers navigate wage & hour issues arising from potential closures, as well as workplace safety issues related to severe winter weather.

In the wake of winter storms thousands of businesses, schools and government offices face the challenge of cleaning up significant ice and snowfall and trying to return to operation. For many of these employers, the unusual days ahead may require special attention to workplace safety issues. Storm cleanup poses significant hazards that must be addressed. Employees may be asked to perform tasks or volunteer to undertake certain responsibilities that are not within their regular job duties. In the hurry to get our communities up and moving again, many unfamiliar hazards can be easily overlooked by employers and employees. Even in these extraordinary circumstances, employers are responsible for the safety and health of their employees in the workplace and must take measures to prevent injury and illness.

Additionally, winter weather creates a variety of hazards that can significantly impact everyday tasks and work activities. These hazards include slippery roads/surfaces, strong winds and environmental cold.

Read the full Client Alert for all of our guidance and recommendations.

By James L. Curtis and Craig B. Simonsen

The Department of Homeland Security (DHS) has published an Advance Notice of Proposed Rulemaking (ANPR) intended to “mature” the Chemical Facility Anti-Terrorism Standards (CFATS) program, and to identify ways to make the program more effective in achieving its regulatory objectives. 79 Fed. Reg. 48693 (August 18, 2014).

The CFATS program was intended to identify and regulate high-risk chemical facilities to ensure that they have security measures in place to reduce the risks associated with those chemicals. Many of the regulated facilities are part of the chemical sector – which employs nearly “one million people and earns revenues between $600 billion and $700 billion per year.” Other facilities with high-risk chemicals include “universities, oil and natural gas operators, and hospitals.”

This ANPR is part of an effort highlighted by a U.S. Environmental Protection Agency, U.S. Department of Labor, and the Department of Homeland Security recent publication of their first joint Report for the President, entitled “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment,” published under the August 2013, Executive Order 13650. The EO was intended to enhance the safety and security at chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities. We previously blogged about the U.S. EPA’s Request for Information on its Clean Air Act Accidental Release Prevention Program, and about the U.S. DOL’s Request for Information on “Modernization” of OSHA’s PSM Standard. This CFATS program ANPR is the third prong action under the President’s EO.

In a recent blog, Caitlin Durkovich, the DHS Assistant Secretary for Infrastructure Protection, commented that “the CFATS program is an important part of our nation’s counterterrorism efforts as we work with our industry stakeholders to keep dangerous chemicals out of the hands of those who wish to do us harm. Since the CFATS program was created, DHS has actively engaged with industry to identify and work with high-risk chemical facilities to ensure they have security measures in place to reduce the risks associated with the possession of chemicals of interest. While there is still work to be done, DHS to date has approved nearly 1,000 facility site security plans and the pace to approve and inspect facilities continues to improve.”

Initially DHS had issued CFATS as an interim final rule. 72 Fed. Reg. 17688 (April 9, 2007). In November 2007, the Department adopted as Appendix A to CFATS (72 Fed. Reg. 65396) a final list of over 300 “Chemicals of Interest” (COI) that were listed as posing “significant risks to human life or health if released, stolen or diverted, or sabotaged.” Publication of the Appendix A list of COI brought the CFATS interim final rule into “full effect.”

Under the rules facilities that were initially determined by DHS to be “high-risk” needed to complete and submit a Security Vulnerability Assessment (SVA). If DHS made a final determination that a facility was high-risk, then that facility would be required to submit a Site Security Plan (SSP) for DHS approval. DHS points out in a fact sheet that “more than 48,000 preliminary assessments [(Top-Screens)] were reviewed by DHS from facilities with Chemicals of Interest. 3,986 facilities are currently covered by CFATS….  1,838 Security Plans [are] authorized.” DHS has now notified more than 8,895 facilities that they have been initially designated as “high-risk” and are now required to submit SVAs.

Generally, through this ANPR, the DHS is inviting interested persons to submit written comments, data, or views on how the current CFATS regulations might be improved. Specifically, DHS is asking for comments on the following topics:

  1. The information submission processes (i.e., the Top-Screen, SVA, and SSP submissions) and associated schedules;
  2. The means and methods by which facilities claim a statutorily exempt status and whether or not commenters think that deletions, additions or modification to the list of exempt facilities should be considered;
  3. The use of Alternate Security Programs in lieu of SVAs and, in particular, the current limitation on the use of Alternate Security Programs in lieu of SVAs to Tier 4 facilities;
  4. The, scope, tier applicability and processes for submitting and reviewing SSPs and Alternate Security Programs;
  5. The processes for submitting and evaluating requests for redetermination by chemical facilities previously determined by DHS to be high-risk; and
  6. The issuance of orders and the regulatory enforcement process.

Written comments on the ANPR are due on October 17, 2014.