By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week at the 2018 National Safety Council (NSC) Congress the speakers on this Executive Forum noted that “automation, wearables, augmented reality, virtual reality, drones, big data, machine learning, the Internet of Things – emerging technologies are now almost too numerous to keep track of.”  This Executive Forum offered an in-depth look at the tools and trends that organizations are beginning to adopt and provided some practical comments for EHS professionals who need to prepare themselves for a changing safety environment.  The session was presented by Michelle Garner-Janna, CSP, CPE, Executive Director – Corporate Health & Safety, at Cummins, and Lydia Boyd Campbell, MD, MPH, Chief Medical Officer, at IBM.

In her presentation Garner-Janna noted that Cummins is a global power leader with 60,000 employees spread around the world in 190 countries.  The company has worked to develop its health and safety programs for what she deemed “Industry 4.0”, advanced systems which incorporate (1) a secure network; (2) standard safety core systems; (3) Internet of Things (IoT) connectivity; (4) advanced technology mobile virtual reality (VR)/augmented reality (AR); and (5) big data advanced analytical systems.  An example of the Industry 4.0 at work is the company’s Powered Industrial Vehicle Positioning System, known as Essensium.  The Essensium System is an automated and augmented reality system used to move unmanned powered industrial trucks through warehouses in materials handling and storage functions.

Garner-Janna explained the Industry 4.0 systems being explored are exoskeletons and wearable technology.  The company is also currently trying out a VR system to provide health and safety training at a facility in China.

Campbell indicated that IBM has 380,000 employees.  Health and Safety personnel represent less than 6% of those employees onsite, and there is one H&S employee for every 1000 employees.  To compensate for reduced safety staffing, IBM’s H&S services group has been developing an integrated artificial intelligence system based on its “Watson” application.  With this system, the company has set-up a World-wide H&S call center in India that receives telephone calls and emails relating to safety and health concerns, translates the many languages, and routes the issues to “the right people” to work on resolution.  The Watson based system is also analysing the “tone” of callers’ voices to make sure that potentially high level of stress or problems are escalated appropriately.  The system is also now being reprogrammed to flag and handle personally sensitive data that employees may try to submit.

The emerging technologies and issues raised by speakers from Cummins and IBM demonstrate the changing nature of the safety environment and opportunities for safety professionals and employers to incorporate changing technology and big data into their approaches to protect employees.  These developments should be closely monitored by employers.

We have previously blogged on automation and issues related to the future of safety technology, including Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry, A Global Perspective on the Future of Wearable Technology, An Aging America and the Future of Paid Family Leave, and Robotics, Automation, and Employee Safety for the Future Employer.

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 Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Due to the increased use of robotics and computer automation for many job functions that have historically been performed by employees raises, besides the traditional personnel and employment issues, a host of workplace safety issues.

The U.S. Occupational Safety and Health Administration’s (OSHA) has been working to address potential safety hazards posed by robotics in the workplace for many years. As early as 1987, in OSHA’s Guidelines for Robotics Safety, Directive No. STD 01-12-002, OSHA noted that “industrial robots can be used to perform hazardous tasks but in doing so they can create new hazards. With the burgeoning use of robots in industry, it is feared that without adequate guarding and personnel training, injury rates for employees working with robots may increase.”

Workplace Robotics Safety

Employers traditionally have called upon robots to perform unsafe, hazardous, highly repetitive, and “unpleasant” tasks, reducing potential hazards associated with those specific functions. Early robots, which mainly conducted a pre-programmed task and did not have any “intelligence” as many robots do now, created potential hazards not only under normal operating conditions, but also during “programming, adjustment, testing, cleaning, inspection, and repair periods.”

During workplace robot functions, the operator, programmer, or maintenance worker may temporarily walk within the robot’s “work envelope” (the area around the robot where performs its task) while power is available to moveable elements of the robot. This created potential machine guarding, lockout/tagout, and electrical safety hazards, among others. In addition, as industrial robots have advanced over the years, they have performed increasingly complex tasks with multiple tools and variable programmed motions, potentially exposing more employees to different hazards.

OSHA’s lockout/tagout regulations require employers to protect employees from unexpected energization of machinery by, among other things, dissipating all sources of energy when the machines are not in use and installing a lock. With robots, the primary source of protection from unexpected movement is a “programmable logic controller” or “PLC.” PLCs limit robots from moving when not performing their pre-programmed tasks and functions or if a certain condition is met – i.e. an interlocked door is open. While these PLC devices typically “fail to safe,” OSHA has been reluctant to accept them as equally effective means of employee protection along the lines of machine guarding or lockout/tagout.

Now, some thirty years after their widespread appearance in the workplace, robotics and computer automation have permeated nearly every industry, including manufacturing, warehousing, and even retail, potentially exposing additional workers to hazards. In Japan, some coffee shops now serve coffee utilizing robotic “baristas.”

OSHA’s Online Technical Manual Regarding Workplace Robotics

While OSHA has not promulgated regulations specifically covering use of robots in the workplace, OSHA has created an online technical manual to inform employers about the hazards associated with robotics and automated machinery, such as those which may result from malfunctions or errors in the programming or interfacing with peripheral equipment. Operational changes with the process being performed or the breakdown of other machinery or electronic sensors could also cause the robotics to react in an unwanted and hazardous manner. In its tool, OSHA identifies the following as important considerations for any employer intending to use robots in the workplace:

  1. Types of Accidents. Robotic incidents can be grouped into four categories:
    1. Impact or Collision Accidents. Unexpected movements, component malfunctions, or unpredicted program changes related to the robot’s arm or peripheral equipment can result in contact accidents.
    2. Crushing and Trapping Accidents. A worker’s limb or other body part can be trapped between a robot and other peripheral equipment, or the individual may be physically driven into and crushed by other peripheral equipment.
    3. Mechanical Part Accidents. The breakdown of the robot’s drive components, tooling or end-effector, peripheral equipment, or its power source is a mechanical accident. The release of parts, failure of gripper mechanism, or the failure of end-effector power tools (e.g., grinding wheels, buffing wheels, deburring tools, power screwdrivers, and nut runners) are a few types of mechanical failures.
    4. Other Accidents. Other accidents can result from working with robots. Equipment that supplies robot power and control represents potential electrical and pressurized fluid hazards. Ruptured hydraulic lines could create dangerous high-pressure cutting streams or whipping hose hazards. Environmental accidents from arc flash, metal spatter, dust, electromagnetic, or radio-frequency interference can also occur. In addition, equipment and power cables on the floor present tripping hazards.
  2. Sources of Hazards. The expected sources of potential robotics hazards include:
    1. Human Errors. Human errors in the programming, interfacing peripheral equipment, or connecting live input-output sensors to the robot or a peripheral device can cause dangerous, unpredicted movement or action by the robot. The incorrect activation of the “teach pendant” or control panel is a frequent human error. The greatest problem, however, is operators’ familiarity and complacency with the robot’s redundant motions so that an individual places himself in a hazardous position within the robot’s “work envelope” while programming the robot or performing maintenance on it.
    2. Control Errors. Intrinsic faults within the PLC control system of the robot, errors in software, electromagnetic interference, and radio frequency interference. In addition, these errors can occur due to faults in the hydraulic, pneumatic, or electrical sub-controls associated with the robot or robot system.
    3. Unauthorized Access. Entry into a robot’s safeguarded area is hazardous because the person involved may not be familiar with the safeguards in place or their activation status.
    4. Mechanical Failures. Operating programs may not account for cumulative mechanical failure, resulting in faulty or unexpected operation.
    5. Environmental Sources. Electromagnetic or radio-frequency interference (transient signals) could affect robotic operation and increase the potential for injury to any person working in the area.
    6. Power Systems. Pneumatic, hydraulic, or electrical power sources that have malfunctioning control or transmission elements in the robot power system can disrupt electrical signals to the control and/or power-supply lines. Fire risks are increased by electrical overloads or by use of flammable hydraulic oil. Electrical shock and release of stored energy from accumulating devices also can be hazardous to personnel.
    7. Improper Installation. The design, requirements, and layout of equipment, utilities, and facilities of a robot or robot system, if inadequately done, can lead to inherent hazards.

While, again, OSHA does not have regulations specific to robots in the workplace, employers would be wise to conduct job hazard analyses and evaluate any existing or potential robotic equipment installation, to abate any hazards posed by these machines.

Safety Regulation of Autonomous (Robotic) Vehicles

The ongoing robot revolution has ventured into the future of passenger and commercial vehicles. Some employers have embraced the possibilities of a potential transition to autonomous (technically, “robotic”) vehicles as an opportunity to limit driving-related hazards to their employees .

In a recent study, the U.S. Department of Commerce found that 15 million US workers (about one in every nine workers) drove vehicles as part of their jobs.  These jobs are concentrated in the transportation and warehousing industries. The study highlighted that the fatality rate (per 100,000 full-time equivalent workers) for motor vehicle operators from on-the-job roadway incidents involving motor vehicles is ten times the rate for all workers, and the numbers of roadway motor vehicle occupational injuries resulting in lost work time (per 100,000 full-time equivalent workers) is 8.7 times as large as that of all workers.

It should be noted that automated vehicles present their own hazards. OSHA has not yet weighed in on how employers should address hazards posed by autonomous cars and trucks at their facilities.

With regard to driving on public roads, the U.S. Department of Transportation and the National Highway Traffic Safety Administration (NHTSA) recently released new federal guidance for Automated Driving Systems (ADS), which should provide preliminary guidance with regard to some of the safety issues posed by autonomous vehicles. Employers should watch these developments closely, as new technologies change the marketplace and potentially affect employee safety.

Seyfarth’s attorneys have experience working with and advising employers on the hazards associated with robotics, the use of automated machinery, and autonomous vehicles. Please reach out to your Seyfarth attorney if you have any questions related to these issues.

By James L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Healthcare is the fastest-growing sector of the U.S. economy, employing over 18 million workers, 80% of which are women.  These healthcare workers face numerous hazards on the job, including sharps injuries, exposures to chemicals and hazardous drugs, musculoskeletal disorders (MSDs), latex allergy, violence, and stress.

Significantly, there are more cases of healthcare workers suffering nonfatal occupational injury and illnesses than any other industry sector.  In a recent healthcare study, NIOSH found that as to administering aerosolized pentamidine to patients “22% of respondents did not always wear protective gloves, 69% did not always wear protective gowns, and 49% did not always wear respiratory protection….”  NIOSH concluded that there was “a belief that employers do not fully appreciate the potential adverse health effects associated with exposure to these drugs and therefore do not prioritize adherence.”

As to high-level disinfectants, the survey findings showed that best practices to minimize exposure have not been universally implemented.  NIOSH’s survey found that “17% of respondents said they never received training and, of those who received training, 42% said that it was more than 12 months ago.  19% of respondents said that employer safe handling procedures were unavailable.”  “44% of respondents did not always wear a protective gown and 9% did not always wear protective gloves.”

Critically, NIOSH concluded that employers and employees did not always follow best practices.

For healthcare employers this conclusion should be a red-flag as to the overall quality of their safety and health policies.  Healthcare employers should consult with safety professionals who are well versed in the areas where the employers may be out of touch with best practices.  Such consultations can enhance employee safety and help avoid liabilities associated with OSHA violations.

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 or the Workplace Counseling & Solutions Team.

By Jane HallPaul CutroneSam Witton, and Nick Neil

Seyfarth Synopsis:  We are aware that many of the clients we advise on U.S. workplace safety and health laws and regulations also have operations in Australia.  The below blog provides insights into recent significant developments in workplace safety and health law in Queensland.  Please feel free to contact the authors, or any of our workplace safety and health attorneys in Australia, with any questions you may have on this or any related topics.

The community was rightly outraged by the tragic loss of life in incidents at Dreamworld and Eagle Farm. The recent legislative response to those tragedies has attracted significant media attention, with laws recently rushed through Queensland parliament, introducing new offences into the Work Health and Safety Act 2011 (Qld), the Electrical Safety Act 2002(Qld) and the Recreational Water Activities Act 2011 (Qld), from 23 October 2017.

Much of the focus in the legal media and beyond has been on the headline grabbing figures of penalties of up to AUD$10m for body corporates and 20 years imprisonment for individuals – making these the toughest workplace penalties in Australia at the moment. The new offences respond to the sense of outrage, but with the attention on the penalties, there has been little pause to ask:

Are these laws an appropriate response to the tragedies?

To coin the phrase often used by lawyers, “the jury is still out”.

Looking at the introduction of the industrial manslaughter offences in the Work Health and Safety Act, we make the following observations:

  • The Act has the primary objective of protecting workers and other persons against harm to their health and safety.
  • The Act already provided for terms of imprisonment for the most serious types of offending.
  • It is not clear how the recent introduction of longer terms of imprisonment and higher penalties will help regulators prevent injury, illness and death as correctly highlighted by the Bar Association of Queensland, there has only been one prosecution of a category 1 offence (the most serious offence under the WHS Act) in Queensland so far.
  • There is no real evidence that the existing laws were ”inadequate”. We are not suggesting that a tragic loss of life in a workplace should not result in a detailed examination of the circumstances and, where there is evidence of serious offending by a duty holder, regulators ought to take enforcement action. The query is whether regulators in Queensland were unable to adequately do so prior to 23 October 2017.

Will the new offences have unintended consequences?

One serious concern amongst businesses, their workers, key stakeholders and others ought to be whether the introduction of longer terms of imprisonment and higher penalties and threats of greater enforcement will encourage business and industries to learn from failure in an open and transparent way.

The prospect of very severe (and, in particular, personal) penalties, will be an impediment to sharing valuable safety learnings in industries, at least until the legal processes have run their course. This can take up to five years in some circumstances. Will valuable lessons be lost?

This can only be detrimental to health and safety outcomes – the very opposite of what the laws seek to achieve.

We all want healthy and safe workplaces and appropriate responses to serious offending, but this should not be at the expense of an environment that encourages learning and sharing. We hope that the approach taken to the enforcement of the new offences does not create a new form of outrage caused by business and individuals justifiably exercising significant caution about sharing safety learnings with others in a timely fashion.

We raised the question in our related blog, Victorian OHS enforcement: why change the game plan when your team is on top? If the ‘end game’ is improving health and safety outcomes, are better options available?

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

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

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

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

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

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

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

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

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

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

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

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

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

shutterstock_150166427Seyfarth Synopsis: The Tenth Circuit held that a trucking company unlawfully retaliated against a truck driver after he abandoned a trailer on a public highway, finding that his actions constituted a protected refusal to operate a vehicle in unsafe conditions.

The Tenth Circuit Court of Appeals denied a petition for review of a retaliation finding by the Administrative Review Board (ARB), finding that the employee had been retaliated against in violation of the Surface Transportation Assistance Act (STAA). TransAm Trucking, Inc. v. Department of Labor, No. 15-9504 (Tenth Circuit August 8, 2016),

The Court explained that the driver parked a tractor-trailer on the shoulder of an interstate highway. After sitting in sub-freezing temperatures, the brake lines on the trailer froze and rendered the trailer immobile. When a service vehicle failed to arrive and the driver’s heating unit stopped functioning, the driver detached the trailer and drove away in the tractor.

After his termination, the employee filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), an agency within the Department of Labor (DOL) that administers STAA claims, asserting that the employer violated the whistleblower provisions of the STAA when it discharged him. After OSHA dismissed the driver’s complaint, the employee requested a hearing before a DOL administrative law judge (ALJ).

The employer argued that the driver’s actions were not protected under the STAA, which only creates a whistleblower claim for an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition,” 49 U.S.C. § 31105(a)(1)(B)(ii). Because the trailer was inoperable and the driver drove off without it, the employer argued that the driver could not have refused to “operate” in unsafe conditions; but, rather, he abandoned company property.

The ALJ concluded that the driver had engaged in protected activity when he reported the frozen brake issue to the employer, and again when he refused to obey the instruction to drive the truck while pulling the trailer. The ALJ further concluded that the protected activity was a contributing factor in the employer’s decision to terminate his employment because his refusal to operate the truck while pulling the trailer was “inextricably intertwined” with the employer’s decision to terminate him for abandoning the trailer at the side of the highway. The employer appealed to the DOL Administrative Review Board (ARB) (which affirmed the ALJ’s decision) and then to the Tenth Circuit Court of Appeals.

In denying the employer’s appeal, the Tenth Circuit noted that the Administrative Procedure Act (APA) “standard of review is narrow and highly deferential to the agency.” Compass Envtl., Inc., v. Occupational Safety & Health Review Comm’n, 663 F.3d 1164, 1167 (10th Cir. 2011).  The Court concluded that the driver had refused to operate the vehicle when he left the trailer behind.  Consequently, the Court upheld the ARB decision and ordered the driver to be reinstated with backpay.

This case should remind employers that the DOL takes an expansive view of the whistleblower statutes enforced by OSHA, and the kind of actions that constitute protected activity under those statutes. In this case, the employer advanced a seemingly non-retaliatory reason for the termination — abandonment of company property — as the reason for the challenged decision.  However, the close connection between the trailer abandonment and the report that the brakes had frozen/refusal to pull the trailer was enough to tip the scales in the employee’s favor.  Employers should exercise extreme caution when making employment decisions under circumstances in which a legitimate reason for discipline bears a close relationship to conduct that may constitute protected activity under a whistleblower statute.

OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations. For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Whistleblower Team or the OSHA Compliance, Enforcement & Litigation Team.

By Adam R. Young, Kylie Byron, and Craig B. Simonsen

shutterstock_178475264Seyfarth Synopsis: NIOSH releases a comprehensive training curriculum that home healthcare employers can use to minimize safety risks and prevent OSHA citations.

We had blogged previously about OSHA’s “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting. Now the National Institute for Occupational Safety and Health (NIOSH) has recently announced the availability of a “free” web-based training curriculum for home healthcare agencies and workers.

NIOSH indicates in its press release that the curriculum is intended to help employers communicate recognized hazards encountered in homecare workplaces, explain safety concerns, as well as provide “practical solutions to manage risks and improve safety.” The curriculum, Caring for Yourself While Caring for Others, is available in both English and Spanish. It comprises seven “flexible modules” that “allow for customization to meet the individual training needs of home healthcare workers.”

Each training module includes a trainer’s guide, customizable PowerPoint slides, and participant handouts. The modules include:

  • Introduction to Homecare Health and Safety;
  • Reducing Strains, Sprains and Falls;
  • Reducing Risk from Environmental Exposure;
  • Reducing Exposure to Bloodborne and Other Infectious Diseases;
  • Staying Safe When Working With Clients With Dementia;
  • Setting Healthy and Safe Boundaries to Reduce Stress; and
  • Safely Handling Threatening Behavior When Providing Homecare.”

In addition to the modules, the NIOSH curriculum comes with a Homecare Workers’ Handbook that is an “easy-to-read overview of some of the topics covered in this course as well as topics that are not covered” which “should be provided to all participants.” The Handbook includes safety checklists and to-do lists that can be used by home healthcare employers and agencies, their workers, and their clients, in order to help keep these workers injury free.

Employers and agencies in the home healthcare and social service industries can use these NIOSH materials to develop their own employee safety and training programs, or to update their existing programs as appropriate. At a minimum, employers who have a written program in place may wish to make sure that they covered all of the topics highlighted in these NIOSH materials. Coordinating employer written materials with the NIOSH curriculum may improve employee safety and reduce the likelihood of workplace incidents. Moreover, compliance with the NIOSH training recommendations also may reduce the employer’s liability for an OSHA citation, should OSHA conduct an onsite inspection.

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

By Parnian Vafaeenia and Karla Grossenbacher

KRS IMG_0325-RevSeyfarth Synopsis: Pokémon GO’s popularity is at a fever pitch. However, the game poses several risks for employers including software security, privacy and workplace safety concerns.

Your employees may be on a quest to catch ‘em all. Over 15 million people have downloaded the Pokémon GO game since its release two weeks ago.  In this augmented reality game, players use their mobile devices to catch Pokémon characters in real-life locations captured by the camera in a user’s cellular phone.  Though the game is very popular with Pokémon GO players, employers may not like the game quite so much.

Data And Security Concerns

There are data security concerns that arise from use of the Pokémon GO app.

First, users that want to play Pokémon Go must sign in to the app. There are two ways to do so—through an existing Google account, or through an existing Pokémon Trainer Club Account.  Up until very recently, the Pokémon website did not allow users to sign up for Pokémon Trainer Club Accounts due to overwhelming demand.  Thus, for most people, the only way to play Pokémon GO was by signing in to the app with their Google accounts.  Even though the option to create a Trainer Club Account is now available, doing so requires more time and effort than signing in through an existing Google account.

On Monday July 11, it was discovered that users who signed in through their Google accounts were unwittingly giving Niantic Labs—the developer that created the game—full access to the information in their Google accounts. This included access to email.  The developer insists that it is not actually accessing all of the information in users’ Google accounts and claims that an update that was recently released apparently limited the scope of Niantic’s access.  Nonetheless, for employers who have employees that use Gmail accounts for work purposes, there has been and continues to be risks to information security presented by allowing such employees to play Pokémon GO.

To make matters worse, there is a malicious version of the Pokémon GO program that includes a remote access tool called Droidjack. This tool, which was uploaded to a file sharing service on July 7, can give hackers full control over android users’ phones.  If a Pokémon GO user is playing the game on the phone they use to send work-related communications or on which they store work-related documents, this means that hackers could conceivably access such communications and documents on infected android phones of Pokémon GO users.  This poses risk for employers as well.

Workplace Safety

Employers that have Pokémon GO players in their facilities may also face safety issues. Niantic teamed up with Google Maps to put Pokémon characters in real-life places.  When a Pokémon is nearby, the app informs the player of its location.  Additionally, certain locations such as “gyms” and “poké stops” are hotspots for catching Pokémon.  Certain characters in the game are harder to catch and more highly coveted than others, so finding one of these popular characters nearby often excites players, and they will “hunt” them in a wide variety of physical spaces.

As recent headlines have demonstrated, employees who are focused on the game while walking around work property could be putting themselves in danger of tripping, falling or otherwise injuring themselves while playing. Similarly, employees whose job duties include driving or operating heavy machinery, or whose jobs require them to work in the vicinity of heavy machinery, risk injury to themselves or others if they attempt to play the game during work hours.  Indeed, there may be heightened safety concerns for certain employers in highly regulated environments like healthcare, where patient safety and health could be impacted by a distracted workforce.  Indeed, even employers in the retail industry could suffer if their employees are too distracted to assist customers.

Takeaways

If an employer’s workforce is using company-issued devices, employers can simply disable access to the app on company-owned devices. In fact, some employers have already taken this step.  Though blocking the app on company-owned devices takes care of part of the problem, many employers have BYOD (Bring Your Own Device) programs and will have employees using the same device to perform work and play Pokémon GO. Employers in this situation should consider the following steps:

  • Have employees install encryption software provided by the employer to protect sensitive data and agree to not modify the software;
  • Monitor or prohibit employees from accessing and downloading of external programs, apps and files or specific ones that pose security risks, like Pokémon GO;
  • Review your safety policy to ensure it encompasses activities similar to safety risks associated with Pokémon GO (i.e., limited use of handheld devices in hazardous work areas, etc.);
  • Create guidelines that prohibit employees from playing games such as Pokémon GO during work time (even if it is downtime) and restrict when and where such games can be played on work property during non-work hours.

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

By James L. Curtis and Craig B. Simonsen

iStock_000041284206_MediumSeyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

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.