By Brent I. Clark, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  On our last day, we heard remarks from a panel of ALJs who discussed the discovery process and trial best practices, a panel on safety programs in the 21st Century, and, a panel on updates on the construction industry.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.  Today is the last day of the meeting.

To open the final day, a panel consisting of the Honorable ALJs Phillips, Joys, and Augustine provided tips and tricks regarding pre-trial, trial, and post-trial conduct.  Especially relevant was Judge Phillips’ discussion of discovery best practices and recent ALJ discovery orders, including orders sanctioning parties for using boilerplate objections in their answers to discovery requests.  Judge Augustine discussed effective trial techniques that will provide the Judge with the best picture of the facts of the case.  Judge Augustine also indicated that effective cross examination and thoughtful use of information learned during depositions have the highest impact in his courtroom.  Judge Joys provided helpful tips regarding opening statements and effective written submissions, including pre- and post-trial briefing and proper citation to previous ALJ decisions.  All ALJs discussed the effectiveness of motions in limine and other pretrial motions.

The next panel discussed three significant recent decisions from the OSH Review commission that do not involve the general duty clause: Hensel Phelps Construction, Mar-Jac Poultry, and Triumph Construction.  Panelists included representatives from OSHA, management, and health and safety non-profits.  Hensel Phelps, a 5th Circuit decision issued in November 2018, overturned an OSH Review Commission decision regarding application of OSHA’s “multi-employer worksite” doctrine, which had relied upon a long-standing 1981 5th Circuit decision, Melerine v. Avondale Shipyards, limiting OSH Act liability to “an employer’s own employees.”  Ultimately, the Court vacated Melerine, resulting in application of the multi-employer worksite doctrine in 5th Circuit jurisdictions.  The panel had widely varying views as to the overall impact of the Hensel Phelps decision, but there was consensus that this decision now brought the 5th Circuit in line with other Circuits that have addressed the multi-employer worksite doctrine.

Mar-Jac Poultry, an unpublished case decided in the 11th Circuit, places limitations on OSHA’s ability to expand its inspections beyond the initial reason for conducting the inspection.  Notably, the Court differentiated between a “hazard” and a “violation,” stating that the existence of a hazard does not establish the requisite probable cause of a violation necessary to obtain an administrative warrant that would allow OSHA to expand its inspection.  Again, the panel was divided as to the ultimate impact of the decision, with management applauding the decision’s discussion that the existence of an injury or hazard does not necessarily mean there is an associated violation of the OSH Act.

Triumph Construction, a February 2018 2nd Circuit decision, implicates OSHA’s ability to issue “repeat” violations to employers and the amount of time of the repeat “look-back” period.  Triumph had been cited for a repeat violation based upon a citation that had become a final order approximately five years prior.  At the time of the underlying citation in 2014, the 2009 version of OSHA’s Field Operations Manual (“FOM”) was still effective, and provided for a 3-year look-back period for repeat citations.  Triumph argued that the 3-year look-back period in the 2009 FOM was the limit and OSHA’s use of a 5-year look-back period was unfair.  Ultimately, the Court found that the OSH Act does not contain time limits on how far OSHA can look back to establish a repeat violation and also that the FOM does not create legal rights or duties.  The panel agreed that the impact of this decision is limited and fact-specific and simply applies the OSH Act as written.

Finally, the panel discussed several current cases that are expected to have a significant impact on recordkeeping, reporting, and agency deference.  Several cases challenging OSHA’s 2016 recordkeeping e-reporting rule are expected to be decided in 2019, including a case out of the Northern District of Texas and one out of the Western District of Oklahoma.  In addition, several current cases challenge OSHA’s decision to remove the requirement for employers to e-file their OSHA 300 Logs and 301, therefore limiting e-filings for all employers with greater than 20 employees to the OSHA 300A yearly summary.  The panel also discussed the United States Supreme Court’s grant of certiorari in Kisor v. Wilkie, which raises as its sole issue whether the Court should overturn the concept of “Auer” deference, which provides deference to an agency’s informal interpretation of its own regulation.  Many on the panel believed that the Court will in fact overturn or significantly limit Auer due to Justices Gorsuch and Kavanaugh having previously indicated a desire to remove or limit deference to agency interpretations.

Next, a panel discussed 21st Century updates to traditional health and safety programs.  The panel consisted of representatives from industry, safety consulting, labor, and OSHA.  OSHA reminded employers that it partners with states to provide consultation assistance to small businesses, providing assistance to employers covering approximately 1 million employees in 2018.  The labor representative discussed the use of metrics to prepare and implement effective safety programs.  A representative from industry discussed digital tools that they use to track leading and lagging indicators, allowing for real-time adjustments to safety programs and policies.  Use of these metrics has significantly reduced injuries and illnesses throughout their industry.

Finally, a panel of construction experts including OSHA’s acting director of the Directorate of Construction, an attorney representing management, and an attorney representing labor discussed updates in OSHA’s construction-related regulations, as well as trends in construction enforcement.  OSHA identified three major emphasis areas for 2019 including crane operator certification, trenching and excavation, and the continued implementation of the construction respirable silica rule.  Over 52% of OSHA inspections are conducted at construction worksites, the majority of them involving multi-employer worksites.  Fatalities from falls and trenching failures accounted for nearly 1/3 of construction-related fatalities in 2017.  Four of the top five regulations cited in 2018 involved working at heights or fall protection.  OSHA also reminded employers that the Subpart CC Crane Operator Certification requirements become effective in just over one month, on April 15, 2019.  The attorneys for management and labor disagreed as to the effectiveness of OSHA’s national emphasis programs (“NEP”), including its trench safety NEP.  Management expressed concern at uneven enforcement of trenching regulations while labor expressed approval for the requirements set forth by the NEP.  Finally, the panel discussed implementation of the construction crystalline silica regulation, challenges associated with compliance and enforcement, and lessons learned from the earlier-implemented general industry silica standard.

It has been a great conference, with many significant panels discussing relevant issues and concerns of OSHA, industry, and employees.  We look forward to another year of assisting you and are excited for what is to come.

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, James L. Curtis, Joshua M. Henderson, Patrick D. Joyce, and Daniel R. Birnbaum

Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week.  Today we heard remarks from a panel who discussed the general duty clause at length, a panel on safety concerns during emergency response, a panel that discussed the interplay between workers’ compensation, reportability, and recordability, and a panel on issues arising from OSHA inspections.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Continuing on the themes from yesterday’s conference meetings, a panel discussed at length OSHA’s aggressive enforcement of workplace safety issues through the general duty clause as well as recent OSH Review Commission case law questioning OSHA’s broad interpretation of its powers under the general duty clause.

The panel, which consisted of a management, union, and government representatives, emphasized the ideological differences between employers and the government when it comes to 5(a)(1) citations.  Panelists who represented the government and unions insisted that the purpose of the general duty clause is to fill the gaps when a specific standard does not exist.  The management panel, however, stressed that the general duty clause should be used to address unique, specific hazards.  More importantly, the general duty clause should not be used as a replacement for rulemaking of specific standards.

Speaking on recent general duty cases that concerned heat-illness, workplace violence, and grease fires at a restaurant, the panelists discussed common themes.  The management representative stressed that employers must be provided with appropriate notice of what OSHA may consider to be proper abatement.  Specifically, if an abatement method may be inadequate, OSHA should notify the employer of the fact before an accident, rather than afterwards.  The panelist reminded the audience, which included OSHA representatives and Review Commission judges, that the purpose of the general duty clause is to prevent an injury from occurring, rather than punish an employer after an accident occurs.  As such, when one aberrational situation occurs, the employer should not be punished for an abatement method that was otherwise effective in practice.

The government and union representatives strongly disagreed, noting their stated position that an accident does not have to occur for a violation to exist.  Further, when employers implement abatement methods to address issues such as heat-illness or workplace violence, this is evidence that the employer has notice of a hazard and needs to make sure its abatement efforts are effective.

Ultimately, the panel was a microcosm of the attitudes held by employers and the government across the country, and reflected the ongoing ideological differences in interpreting and enforcing the general duty clause between management and OSHA.

We also heard from a panel on the role of safety in emergency response, which included the division counsel from Puerto Rico OSHA, who discussed his personal experience with Hurricanes Irma and Maria.  The Puerto Rican panelist noted that when disaster strikes, it becomes increasingly difficult to reestablish working conditions without creating some workplace risk.  OSHA representatives noted that in such situations it would shift its focus from enforcing the act to providing technical assistance, but retained the right to enforce the act if necessary.

A panel discussed the interplay between recording injuries on OSHA 300 forms, reporting injuries to OSHA, and workers’ compensation.  The panel discussed the intricacies of the OSHA regulations and workers’ compensation laws, including differing definitions and requirements,  and the close analysis required to determine what is required of employers when these three areas collide.  Given the facts of an injury, a universal approach in these three areas may not be appropriate, but rather a thorough review of each regulation is necessary to ensure employers meet their obligations.

Finally, a panel discussed current issues related to conducting inspections including OSHA’s ability to obtain administrative warrants, whether non-employee representatives can be authorized to participate in a walk around inspection, whether non-management employees have the ability to request representation during an interview, and OSHA’s subpoena power and the scope of attorney representation of the subpoenaed employee during the interview. Finally, the panel discussed OSHA’s recent use of drones during inspections, including interaction with FAA regulations and the safety of people on the ground.

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 the Workplace Safety and Health (OSHA/MSHA) Team.