By James L. CurtisBenjamin D. BriggsAdam R. Young, and Craig B. Simonsen

Seyfarth SynopsisJordan Barab, former Deputy Assistant Secretary of OSHA, announced on his blog this week that he would “start full time work at the Education and Labor Committee in the House of Representatives” to provide OSHA oversight.

Barab, a regular Trump Administration critic, stated that “the opportunity to help organize oversight hearings and investigations to ensure that OSHA, MSHA and NIOSH are executing the missions that Congress gave them and work on new legislation that will better protect workers is too much to resist in what we all hope and expect to be the last two years of the Trump administration.  Now that we actually have our hands on some of the tools of power for the first time in two years, I’m anxious to stop just writing and tweeting about what’s wrong with this country and this administration, and start doing something about it again.”

Barab had previously been the Deputy Assistant Secretary at OSHA from 2009 through January 2017, during the Obama Administration.  He was a proponent of the prior OSHA practice of heavy handed enforcement that viewed employers as adversaries rather than as partners in protecting employees.

Employers should view this as an effort by the new Democratic led House of Representatives to promote the proclivities of unionized labor as well as aggressive and expansive enforcement.

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.

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

Seyfarth Synopsis: OSHA has recently issued a Frequently Asked Questions for General Industry for the Respirable Crystalline Silica Standard. 

We had noted previously in the blog that most of the provisions of the Respirable Crystalline Silica Standard for General Industry and Maritime, 29 CFR § 1910.1053, became enforceable on June 23, 2018. The standard established a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and additional ancillary requirements.

OSHA has now published a FAQs document that provides discussion on the Scope and Application (29 C.F.R. § 1910.1053(a)), Definitions (29 C.F.R. § 1910.1053(b)), Exposure Assessments (29 C.F.R. § 1910.1053(d)), Regulated Areas (29 C.F.R. § 1910.1053(e)), Methods of Compliance (29 C.F.R. § 1910.1053(f)), Written Exposure Control Plan (29 C.F.R. § 1910.1053(f)(2)), Housekeeping (29 C.F.R. § 1910.1053(h)), Medical Surveillance (29 C.F.R. § 1910.1053(i)), Communication of Respirable Crystalline Silica Hazards to Employees (29 C.F.R. § 1910.1053(j)), Recordkeeping (29 C.F.R. § 1910.1053(k)), and Temporary Employees.

Details relating to the enactment and regulation under the standard have been captured in our previous blogs on the topic.  See for instance OSHA Enforcement Memo for Crystalline Silica Standard in General Industry and Maritime, OSHA Publishes Crystalline Silica Standards Rule Fact Sheets for Construction, Circuit Court Finds OSHA Failed to Adequately Explain the Crystalline Silica Standards Rule, and OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards.

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

By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just been sued for removing the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

A coalition of groups including the Public Citizen’s Health Research Group (PCHRG), American Public Health Association, and the Council of State and Territorial Epidemiologists filed a complaint against the U.S. Department of Labor and its Occupational Safety and Health Administration.  PCHRG v Acosta, No. 19-CV-166, (D. D.C. January 25, 2019).  The lawsuit challenges OSHA’s decision to amend a 2016 rule on the “Tracking of Workplace Injuries and Illnesses” to remove the requirement that businesses with 250 or more workers electronically submit logs of each on-the-job injury or illness their workers sustain, although these employers must still keep such records on site.

We had recently blogged about OSHA’s just issued final rule (the Rollback Rule) to remove the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 and OSHA Form 301 to OSHA each year.  Under the now amended rules these establishments will still be required to electronically submit information from OSHA Form 300A. 84 Fed. Reg. 380 (January 25, 2019).

The PCHRG suit claims that the Rollback Rule should be declared “unlawful and set aside because OSHA has failed to provide a reasoned explanation for its change in position, failed to adequately consider comments submitted in opposition to the change, and relied on considerations that have no sound basis in law.”  According to the lawsuit, “OSHA’s action, findings, and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

Under the current rules, the deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

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.

By James L. CurtisBenjamin D. Briggs, Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has just issued its final rule that removes the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year.  These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). 84 Fed. Reg. 380 (January 25, 2019).

In May 2016, under the Obama Administration, the Department of Labor issued a final rule that would have required companies with 250 or more employees to electronically submit their OSHA 300, 301 and 300A forms annually. The information, which would contain summaries of employee names and injuries, would be maintained on government computer systems, but could be requested by third parties such as labor unions, special interest groups, or even competing companies who have an interest in such information.

In light of the legitimate worker privacy concerns, OSHA, under the Trump Administration, in July 2018, issued a proposed rule that would narrow the electronic disclosure rule.  However, some special interest groups, comprised of public-health advocacy groups, viewed the information contained in employers’ OSHA forms as a valuable source of workplace health data.  As such, these groups previously sued to reinstate the final rule that required employers to submit OSHA 300 and 301 forms electronically.  A federal court recently denied that request.

The court in Pub. Citizen Health Research Grp. v Acosta, No. 1:18-cv-01729, 2018 BL 459531 (D.D.C. Dec. 12, 2018), reasoned that the interest groups would have to show “irreparable harm” by not being able to access the OSHA forms to succeed in their lawsuit.  They were unable to show “irreparable harm” because OSHA has issued a notice of proposed rulemaking that narrows the electronic disclosure rule, but could change their mind and ultimately require employers to submit the forms electronically.  As such, the court reasoned, such groups could potentially obtain such information in the future.  Further, the court stated that OSHA’s delay in accepting the OSHA forms does not prevent the special interest groups from conducting the same type of workplace safety research independently.  Because they are not “irreparably” harmed by OSHA’s actions, the Court denied the relief they sought.

Revised Electronic Reporting Requirement

OSHA’s January 25, 2019 final rule limits the electronic submission requirement to the 300A summary for establishments who are required to keep OSHA records and with 250 or more employees.  Establishments with 20 or more (but fewer than 250) employees in certain specified industries (in Appendix A to the regulation) must also submit form 300As.

OSHA believes that this final rule will better protect personally identifiable information or data that may be re-identified with a particular worker by removing the requirement for employers with 250 of more employees to submit their information from Forms 300 and 301 electronically. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

We have blogged frequently on OSHA’s electronic reporting rule.  See California Enacts New Record-Keeping Mandates in Response to Changing Federal Program, Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting RequirementsOSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next YearOSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

The deadline for electronic submissions of the calendar year 2018 OSHA Form 300A information is March 2, 2019.

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.

By James L. Curtis and Craig B. Simonsen

Seyfarth SynopsisDue to Senate Rules, the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health, has now again been “returned” to the Senate for consideration.

Even though President Trump’s nomination of Scott Mugno to head OSHA was approved by Senate Committee on December 13, 2017, but it was not put to a full senate vote by the end of that year forcing a restart of the whole nomination procedure.  2018 did not prove any more fruitful for this nomination.  Accordingly, Mugno has again been nominated and so is now back before the Committee on Health, Education, Labor and Pensions for another vote recommending his appointment proceed to a full Senate vote.  No new date for a vote is currently set which will continue to delay the new administration’s safety and health policies.

For reference, a copy of Mugno’s December 5, 2017, written statement before the Senate Committee, is available for review.

We will continue to monitor the status of this nomination.

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 James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2019 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2018 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2019 inflation adjustments which again nudges the penalties even higher.  84 Fed. Reg. 213 (Jan. 23, 2019).

Under the 2019 rule, the maximum OSHA civil penalties will be:

2018 Penalties

2019 Penalties
Other than Serious violations: $12,675 $13,260
Serious violations: $12,675 $13,260
Repeat violations: $126,749 $132,598
Willful violations: $126,749 $132,598
Failure to abate (per day): $12,675 $13,260

The new OSHA penalty amounts are applicable to OSHA citations issued after January 23, 2019, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA 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 Health (OSHA/MSHA) Team.

By Brent I. Clark, Mark A. Lies, IIAdam R. YoungDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has recently released its National Emphasis Program on Trenching and Excavation, CPL 02-00-161 (October 1, 2018), which requires OSHA to open inspections against any contractor involved in trenching or excavation work and report information back to the Area Office and national online system.

OSHA has long maintained construction standards related to trenching and excavation safety, including 1926.650 (Scope, application, and definitions applicable to this subpart), 1926.651 (Specific Excavation Requirements), and 1926.652 (Requirements for protective systems).  In 2017, the regulation governing cave in protection (1910.655(a)(1)) alone was cited against more than 500 employers.  On top of OSHA citations, trenching and excavation fatalities have been a source of criminal prosecution by federal and state authorities.  To effectuate enforcement of this hazard, OSHA has released a new National Emphasis Program, replacing OSHA’s earlier Special Emphasis: Trenching and Excavation, CPL 02-00-069 (September 19, 1985).

In its news release on the Directive, Deputy Assistant Secretary of Labor for OSHA Loren Sweatt said “removing workers from and helping workers identify trenching hazards is critical….  OSHA will concentrate the full force of enforcement and compliance assistance resources to help ensure that employers are addressing these serious hazards.”  The NEP indicates that according to Census of Fatal Occupational Injuries (CFOI) data, there were 130 fatalities recorded in trenching and excavation operations between 2011 and 2016.  Private construction industry accounted for eighty percent, or 104, of those fatalities.  OSHA noted that it has a series of compliance assistance resources to help keep workers safe from trenching and excavation hazards.  The trenching and excavation webpage provides information on trenching hazards and solutions.

The 2018 NEP mandates that the Area Offices, beginning on October 1, 2018 roll out the Program with a “three-month period of education and prevention outreach.” During that period, OSHA will continue to respond to complaints, referrals, hospitalizations, and fatalities.

“Enforcement activities will begin after the outreach period and remain in effect until canceled.”  The NEP mandates intense new scrutiny of trenching and excavation operations.  The Program requires compliance officers (CSHOs) to initiate an inspection any time they observe a trench or excavation, whether observed during an inspection or merely in the course of their workday travel.  Accordingly, employing its Multi-Employer Worksite Doctrine, OSHA will be required to record and open an inspection against each employer who may have OSHA liability over trenching and excavation operations, including general contractors, subcontractors, and independent contractors.  Compliance officers must also promptly notify their Area Office of the trenching operation, state of the excavation, and any contractors involved.  They also must take photographs to document the worksite.

All enforcement activities by compliance officers must be recorded in OSHA’s online information system (OIS), creating a searchable database of trenching and excavation information.

Accordingly, construction contractors conducting trenching and excavation operations will face a greatly increased chance of an OSHA inspection and regulatory scrutiny, especially those operations that are located on major thoroughfares and high-profile locations or in areas likely to be travelled by OSHA inspectors.  Employers should consult with safety professionals and outside counsel to ensure compliance with the relevant OSHA Standards.

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 James L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  We had blogged previously that OSHA appealed an Administrative Law Judge (ALJ) ruling that severely limited OSHA’s Multi-Employer Worksite Doctrine and citation of a “controlling employer” general contractor. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. August 4, 2017).  The Fifth Circuit has now reversed the ALJ, and upheld OSHA’s Multi-Employer Worksite Doctrine.

In dramatic language, the U.S. Court of Appeals for the Fifth Circuit (governing federal law in Texas, Mississippi, and Louisiana) announced, that “thirty-seven years ago, this court, in a tort case, announced that ‘OSHA regulations protect only an employer’s own employees’.”  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. 1981).  That decision had endured despite the seismic shift brought about by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and of broader employer liability under the Act.  Acosta v Hensel Phelps Construction, No 17-60543 (5th Cir November 26, 2018).  OSHA’s Multi-Employer Worksite Doctrine enables the Agency to cite employers who are “controlling,” “exposing,” “creating,” or “correcting” safety hazards.  OSHA regularly cites general contractors as “controlling” employers with regard to hazards only faced by subcontractor employees.

In the instant appeal, the Court was asked whether OSHA has the authority, under either the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (the Act), or regulations, “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”  The Court concluded that OSHA does indeed have that authority under the Act.

Factually, an OSHA compliance officer conducted an inspection of the site and discovered three sub-contractor employees working at the base of an unprotected wall of evacuated soil.  The contractor’s and the subcontractor’s superintendents were present at the wall, with full views of the subcontractor’s employees working near the wall.  OSHA cited both contractor and the subcontractor for willfully violating 29 C.F.R. § 1926.652(a)(1) for allegedly “exposing employees to a cave-in hazard from an unprotected excavation at a construction site.”

The ALJ determined that the contractor met the requirements to be considered a “controlling employer” who had a duty under 29 U.S.C. § 651 et seq., to “act reasonably to prevent or detect and abate violations at the worksite even when the affected employees are those of another employer.”  However, because the citation arose within the jurisdiction of the Fifth Circuit, the ALJ found that “Fifth Circuit precedent foreclosed the citation” against the general contractor.  The ALJ relied on Melerine, Inc., 659 F.2d at 711, finding that “an employer at a worksite within the Fifth Circuit cannot be held in violation of the Act when the employees exposed to the hazard were employees of a different employer.”

Rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719, 2000 WL 294514 (Mar. 16, 2000).  Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,”  and vacated the citation.

The Court here concluded that “an agency’s interpretation of its governing statute in an administrative adjudication ‘is as much an exercise of delegated lawmaking powers as is the Secretary’s promulgation of a workplace health and safety standard… The Multi-Employer Worksite Doctrine is an agency document that provides guidance to OSHA inspectors as to when it may be appropriate to cite a particular employer.”  The Secretary did not derive any authority from the Policy in issuing the citation to Hensel Phelps; “he relied on the statute itself and engaged in adjudication on the basis of that statutory authority.”  The Court found that the Secretary’s construction of the statute as granting authority to issue citations to controlling employers is a “reasonably defensible” one.

Accordingly, OSHA’s Multi-Employer Worksite Doctrine is now fully enforceable in the Fifth Circuit.

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) or Workplace Policies and Handbooks Teams.

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. ClarkJames L. Curtis, Kay R. Bonza, and Craig B. Simonsen

Seyfarth SynopsisThe Occupational Safety and Health Administration (OSHA) has initiated a Site-Specific Targeting 2016 (SST-16) Program using the injury and illness information electronically submitted by employers to initiate OSHA inspections.  OSHA Directive No. 18-01, CPL 02, effective October 16, 2018.

In its news release about the Site-Specific Targeting 2016 Program, OSHA indicated that it “will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection.”  The agency will then perform comprehensive inspections of employers who are selected for Program.  For CY 2016, OSHA required employers to electronically submit Form 300A (Summary of Work-Related Injuries and Illnesses) by December 15, 2017. The deadline for submitting the 300A data for CY 2017 was July 1, 2018, though OSHA indicted that employers may still provide this information to the database.

The SST-16 indicates that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.”  The inspection cycles are generated using software that randomly selects the establishments from among those that fall into the categories above. According to OSHA, the purpose of including non-responding employers on the inspection list is to deter employers from failing to report their injury and illness information in order to avoid inspection.  Similarly, OSHA will select a sample of low DART rate establishments to verify the reliability of the 300A data being submitted to the agency.  The scope of the inspection will be comprehensive, and not simply limited to recordkeeping practices or potentially hazardous areas or operations that caused an elevated DART rate.  Employers who have received a comprehensive safety or health inspection within 36 months of the creation of the SST-16 inspection list will not be inspected again.

Going forward, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses, will be required to electronically submit their 300A forms to OSHA each year by March 2.

In the SST-16, OSHA clearly lays out how the agency plans to use the injury and illness data it now electronically collects from employers.  Given the tangible impact the data will have on programmed OSHA inspections, employers are advised to take a proactive approach to monitor and address patterns in their injury and illness rates and should take care to ensure they are submitting accurate records to OSHA.

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.