By James L. CurtisKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA today published a proposed rule to amend the injury and illness recordkeeping rules by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301.  OSHA is amending provisions of the “Improve Tracking of Workplace Injuries and Illnesses” (WII Rule) final rule to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA).  83 Fed. Reg. 36494 (July 30, 2018).

OSHA, in its Notice of Proposed Rulemaking (NPRM), has “preliminarily determined” that the risk of disclosure of information contained in OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report), the costs to OSHA of collecting and using the information and the reporting burden on employers are “unjustified given the uncertain benefits of collecting the information.”  The proposed rule eliminates the requirement to file the Form 300 and 301 for establishments with 250 or more employees.  These large employers will still be required to electronically file the OSHA 300A summary of work-related injuries and illnesses. OSHA submits that this proposed change will maintain safety and health protections for workers while also reducing the burden to employers of complying with the current rule.

We had blogged previously on the WII Rule.  See All State Plan Employers are Now Required to Electronically File 2017 Form 300A DataOSHA 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..

In the proposed rule, OSHA notes that Form 301 requires the collection of sensitive information about each individual worker’s job-linked illness or injury, information an employer must collect with or without the worker’s consent.  “While some of the information is likelier to be regarded as particularly sensitive—namely, descriptions of injuries and the body parts affected—most of the form’s questions seek answers that should not be lightly disclosed, including:”

  • Was employee treated in an emergency room?
  • Was employee hospitalized overnight as an in-patient?
  • Date of birth?
  • Date of injury?
  • What was the employee doing just before the incident occurred? Describe the activity, as well as the tools, equipment, or material the employee was using. Be specific.
  • What happened? Tell us how the injury occurred.
  • What was the injury or illness? Tell us the part of the body that was affected and how it was affected; be more specific than “hurt,” “pain,” or “sore.”
  • What object or substance directly harmed the employee?

In the May 2016 final rule (81 Fed. Reg. 29624), the recordkeeping regulation was revised to require establishments with 250 or more employees to electronically submit information from the OSHA Forms 300, 300A, and 301 to OSHA annually.  Individual injury and illness case information from these forms could be disclosed to third parties pursuant to FOIA requests from the public, thereby endangering worker privacy.  The NPRM proposes to amend OSHA’s new electronic recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from the OSHA Forms 300 and 301, to protect sensitive worker information.  OSHA also admits that it has not devised a plan for how it would “collect, process, analyze distribute, and programmatically apply” this information in a meaningful way to justify its collection.

OSHA seeks comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure.  Comments, due on September 28, 2018, may be submitted to docket number OSHA-2013-0023.

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 Mark A. Lies, IIJames L. Curtis, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  A contractor’s employee fell 36 feet while working at a warehouse construction site and not using fall-protection equipment.  Following a bench trial before the District Court, the Defendant contractor DNRB, Inc. was convicted of a Class B misdemeanor for willfully violating two safety regulations (29 C.F.R. § 1926.760(a)(l) and (b)(l)), and causing the employee’s death. The Eighth Circuit upheld the conviction.

  1. Willful Fall Protection Citation Based on Fatality Leads to Criminal Prosecution.

OSHA commonly cites construction employers whose employees fail to use fall protection.  In fact, 29 CFR § 1926.501 (Fall Protection in Construction) is the most frequently cited regulation by federal OSHA.  Employers who fail to provide and enforce the use of fall protection do so at their own peril, as OSHA will cite employers with willful violations, dramatically increasing the civil penalties.  In the event of a fatality a willful citation can then lead to a criminal prosecution by the Department of Justice.

  1. Presence of Fall Protection Equipment Does not Negate Criminal Intent.

United States v DNRB, Inc., No. 17-3148 (8th Cir. July 17, 2018), is an example  of just this kind of prosecution, where OSHA cited the employer for a willful violation of the fall protection standard for steel erection rules, 29 C.F.R. § 1926.760.  The Contractor was also criminally prosecuted, convicted, and sentenced to the maximum penalty.

On appeal, the employer challenged the sufficiency of the evidence, several evidentiary rulings and the sentence imposing the statutory maximum fine of $500,000.  It argued that the Department of Justice failed to prove the three elements necessary to find a criminal conviction (29 CFR § 666(e)): (1) that the company violated an applicable standard, (2) that it did so willfully, and (3) that the violation caused an employee’s death.

Principally, the employer argued that its conduct was not willful because it provided fall protection and anchorage points, and the employee was wearing a harness.  The Court countered that while the employee had a personal fall-arrest harness and connectors, he was not using them to secure himself to an anchorage point on the warehouse’s frame.  The Court explained that “the regulations state that employees ‘shall be protected’ by appropriate equipment, not that they merely be provided with or possess such equipment” (emphasis added).

  1. Court Relies on Past Citation and Prior Warning to Establish Criminal Intent.

The Eighth Circuit then noted that the Contractor had a previous citation for violating the same standard (§1926.760), and so concluded that the Contractor was aware of its requirements.  “Moreover, a supervisor’s knowledge can be imputed to his employer, and there was evidence supporting a conclusion that [the employee’s] supervisor … intentionally disregarded the safety requirements here.”  In fact “a crane operator stated that he expressly warned [the supervisor] about [the employee’s] failure to use fall-protection equipment.”

Finally, the Court found that the employee would not have fallen to his death had he been connected to an anchorage point, and that the employer’s failure to make him use required fall-protection equipment was a “but-for cause” of his death.  In addition it determined that the fall was “a foreseeable and natural result” of working more than 30 feet above the ground without using fall-protection equipment.

  1. Employers Must Enforce Safety Rules and Contest Unfounded Citations.

Employers may draw numerous lessons from this case.  Foremost is the absolute importance of providing fall protection, supervising employees who are exposed to fall hazards to ensure they use the equipment, and enforcing the employer’s safety rules.  Only then will employers be able to prove the affirmative defense of employee misconduct when an employee fails to use his assigned fall protection equipment.  United States v DNRB, Inc., shows the perils for employers who fail to enforce safety rules and fail to respond to reports of noncompliance by an employee.  This case also illustrates how accepting and settling citations may set-up an employer for a willful citation in the future, and even a criminal prosecution in the event of a fatal accident.  Employers should consult with legal counsel regarding an OSHA fall protection citation and ensure that any defensible citations are contested and vacated.

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, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA recently released new publications directed towards safety professionals and managers. The publications offer guidance on what to look for during worksite safety check walk-arounds.  In addition, OSHA suggests that the employer’s completed 300 logs may be used by the employer as a guide to improving worksite safety.

The publications are Safety Walk-Around for Managers, Walk-Arounds for Safety Officers, and That Was No Accident! Using Your OSHA 300 Log to Improve Safety and Health.  While these publications may be useful tools to supplement current workplace safety programs and policies, these should not be considered rules or templates for adoption.  Each workplace is different and compliance may vary substantially from location to location.

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, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for a  temporary employee’s safety and health in two new guidance documents relating to respiratory protection, noise exposure, and hearing conservation. Temporary agencies and host employers that use their services should review this guidance in carrying out their shared responsibility for temporary worker safety.

Nearly two years after the last bulletin, OSHA has just released two new temporary worker bulletins relating to respiratory protection, noise exposure, and hearing conservation.  See Temporary Worker Initiative (TWI) Bulletin No. 8 – Respiratory Protection, and Temporary Worker Initiative Bulletin No. 9 – Noise Exposure and hearing Conservation.

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: “OSHA Releases Two More Temporary Worker Guidance Documents,” “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”

Under TWI Bulletin No. 8, OSHA notes that both the host employer and staffing agency are “jointly responsible to ensure workers wear appropriate respirators when required. While both the host and the staffing agency are responsible to ensure that the employee is properly protected in accordance with the standard, the employers may decide that a division of the responsibility may be appropriate. Neither the host nor the staffing agency can require workers to provide or pay for their own respiratory protection when it is required.”

Under TWI Bulletin No. 9, OSHA notes that both the host employer and staffing agency are jointly responsible for ensuring that “workers receive protection from hazardous noise levels when it is required under OSHA standards. Neither the host nor the staffing agency can require workers to provide or pay for their own hearing protection devices or require workers to purchase such devices as a condition of employment or placement. In addition, employees must be paid for the time spent receiving their audiograms, and the audiograms must be at no cost to the employee.”

Employer Takeaway

It is OSHA’s view that staffing agencies and host employers are jointly responsible for temporary workers’ safety and health. However, as the two newly published bulletin’s make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

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. CurtisPatrick D. Joyce, and  Craig B. Simonsen

Seyfarth Synopsis: OSHA reminded specific employers on Monday that the deadline for electronically submitting their 2017 Form 300A data to OSHA is July 1, 2018.

Electronic submission of 2017 Form 300A data is due by July 1, 2018 for 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. Form 300As should be submitted using OSHA’s Injury Tracking Application (ITA).

Each establishment’s Form 300A for 2018 will be due March 2, 2019. We will continue to monitor OSHA’s activities relating to this rule. OSHA has indicated that it will be reviewing the rule and will be issuing future guidance or revisions.

Employers operating facilities in state plan states should check with their local state plan office to confirm each individual state’s e-filing requirements. For example, Kentucky OSHA requires e-filing using Federal OSHA’s ITA, while the State of  Washington has indicated that employers with facilities in Washington State are not required to e-file on Federal OSHA’s ITA.

We have previously blogged concerning OSHA’s contentious electronic reporting rules.  See All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA 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.

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

Seyfarth Synopsis: OSHA has just released a Memorandum on the Enforcement Launch for the Respirable Crystalline Silica Standard in General Industry and Maritime rules.

In its June 7, 2018 Memorandum about the new Crystalline Silica Standard OSHA states that it will shortly issue interim enforcement guidance until a compliance directive on the new standards is finalized.

The OSHA Memorandum also declares that during the first 30 days of enforcement, OSHA “will assist employers that are making good faith efforts to meet the new standard’s requirements.  If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.  Any proposed citations related to inspections conducted in this 30-day time period will require National Office review prior to issuance.”

Most of the provisions of the Respirable Crystalline Silica Standard for General Industry and Maritime, 29 CFR § 1910.1053, will become enforceable on June 23, 2018. The standard establishes 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.

We have previously blogged on the new silica standard.  See 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 employers and industry stakeholders, OSHA provides a General Industry and Maritime Fact Sheet with a summary of the new regulatory requirements under the rule. OSHA also provides a Small Entity Compliance Guide for small entities.

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. CurtisBenjamin D. BriggsMark A. Lies, IIBrent I. Clark, and  Craig B. Simonsen

Seyfarth Synopsis: To be compliant, employers in State Plans that have not yet adopted OSHA’s new rule for electronic filing of injury data for Calendar Year 2017, are required to file in the federal OSHA database.

In its news release this week OSHA announced that “Section 18(c)(7) of the Occupational Safety and Health Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the Injury Tracking Application (ITA) online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

We have blogged previous concerning the new ITA rules.  See OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA 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.

OSHA has now notified employers in State Plans that have not yet adopted OSHA’s new rule for electronic filing of injury data for Calendar Year 2017 they are required to comply.  An employer covered by a State Plan that has not completed adoption of a state rule must provide Form 300A data for Calendar Year 2017.  All employers are required to submit their Form 300A data by July 1, 2018. The Agency noted that “there will be no retroactive requirement for employers covered by State Plans that have not adopted a state rule to submit data for Calendar Year 2016.”

We will continue to monitor OSHA’s activities relating to this rule.  OSHA has indicated that it will be reviewing the rule and will be issuing future guidance.

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 Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Introduction: We are posting our colleagues’ California Peculiarities Employment Law Blog post on workplace violence.  While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely.  For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause.  Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared — such as where one employee makes threatening statements about a co-worker/manager.  But where the employer/employee has obtained a restraining order, the police are more likely to intercede.

By Christopher Im and Minal Khan

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing.

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

By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We continue to attend the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.

A hot topic, discussed at today’s meeting, is sexual harassment in the workplace.  Panelists are discussing whether sexual harassment could constitute a serious workplace safety and health issue.  Studies show that pervasive harassment may manifest in physical symptoms in victimized employees.  The question becomes, when does sexual harassment evolve into workplace violence that presents OSHA liability?  There are currently no specific OSHA standards that address workplace violence or sexual harassment.  However, under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.”  As such, sexual harassment is on OSHA’s radar, and as more employees step forward, it is anticipated that more inspections will be opened from complaints.

The panel discussed specific industries, including healthcare, social services, hospitality, late night retail, construction, agriculture, and food processing, as those where sexual harassment as a workplace violence issue are statistically more likely.  OSHA will likely focus on these industries in evaluating future sexual harassment inspections.  As an example, the panel referenced a case in Region 3, where an inspection was opened when a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  Companies should evaluate complaints and determine if sexual harassment in the workplace is foreseeable or preventable.

The panel also talked about efforts by local cities and industries that have made proactive steps to protect employees from sexual harassment.  As an example, Seattle, New York, and Chicago have all taken steps to provide hotel workers with “panic buttons” to help prevent attacks by hotel guests.  It is anticipated that these regulations will spread across the country, and span new industries as well.  Employers should stay aware of the newest regulations and industry practices to reduce the risk that employees will be harmed or that an OSHA inspection will be opened.

More to come from the conference tomorrow.…

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

By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Ann Rosenthal, Associate Solicitor for the Occupational Safety and Health Division, delivered remarks from the Solicitor’s Office and stressed that the change in administrations would not lessen enforcement efforts by OSHA.  Ms. Rosenthal discussed highlights from the Solicitor’s Office from the last year that included cases involving workplace violence, fall protection, and criminal penalties for employers.  It is anticipated that the Department of Labor will continue to focus its efforts on prosecuting these types of cases.  Ms. Rosenthal also indicated, while responding to questions, that the new administration is considering eliminating regulations under the beryllium rule and record-keeping rule.

Tom Galassi, Director, Directorate of Enforcement of OSHA, is also here and discussed key enforcement initiatives. Generally, Mr. Galassi echoed the general tone of Ms. Rosenthal’s remarks, emphasizing that OSHA is not slowing down in its enforcement efforts.  Accordingly, Mr. Galassi covered rising penalties, which continue to sharply increase.  Mr. Galassi highlighted that severe injury reports also continue to rise steadily, up from 10,887 to 11,590 reports last year.  Additionally, Mr. Galassi discussed two standards that were recently updated and have begun to be enforced by OSHA – the silica standard and walking work surfaces standard.  Both standards implement substantial burdens on employers and create compliance issues that impacts employers in a wide array of industries.

Mr. Galassi also stressed OSHA’s increasing budget and goal to increase the agency’s reach.  To that end the agency added over 70 employees last year comprised of enforcement and compliance personnel.  As such, employers should be sufficiently prepared for enforcement efforts that will continue to rise from these additional resources.

More to come from the conference tomorrow.…

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