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.

By Ofer Lion

injured businessman in bandages and crutches with dollar pile and falling money vectorIf your company is a nonprofit or has a nonprofit foundation, are you covered if something happens to your volunteers while they’re engaged in service to your organization?

The concern is real. There were 287 fatal occupation injuries among volunteers from 2003-2007. Prudent nonprofits carry insurance, called “volunteer accident insurance,” to cover injuries to volunteers.

Workers Compensation

There are significant differences in how states address workers’ compensation coverage for volunteers. Workers’ compensation coverage can limit employer liability for injuries to an employee or, in some cases, a volunteer.

Under California law, a nonprofit can opt into workers’ compensation coverage with respect to their volunteers. But absent such an affirmative election, volunteers for nonprofit organizations generally are excluded from the definition of “employee” and therefore are not covered by the workers’ compensation and insurance laws (Labor Code § 3352(i)).

“[A] person who performs voluntary service without pay for a private, nonprofit organization, as designated and authorized by the board of directors of the organization, shall, when the board of directors of the organization, in its sole discretion, so declares in writing and prior to the injury, be deemed an employee of the organization for purposes of [workers’ compensation and insurance] while performing such service.” (Labor Code § 3363.6(a)). As a result, opting into workers’ compensation coverage effectively requires an affirmative resolution of the nonprofit’s board to have volunteers be deemed employees for purposes of workers’ compensation and insurance coverage.

For this purpose, “ ‘voluntary service without pay’ shall include the performance of services by a person who receives no remuneration other than meals, transportation, lodging, or reimbursement for incidental expenses.” (Labor Code 3363.6(c)). A volunteer who is an “employee,” by a written declaration of the board, would be entitled to full coverage as an employee.

Nonprofits that do opt in may wish to contact their workers’ compensation insurer to preempt coverage disputes that may arise after an illness or injury claim is made by a volunteer. Workers’ compensation insurance premiums are often based on gross payroll amounts. Because volunteers are not paid, a different allocation could be requested by the insurer to increase premiums accordingly.

Workplace Safety

Nonprofits should seek to prevent injury to their volunteers (and employees) by providing a safe workspace. At a minimum, while the federal Occupational Safety and Health Act’s (“OSHA”) and California’s similar statute do not appear to protect volunteers, OSHA has indicated that its coverage provides that any charitable or non-profit organization that employs one or more employees must comply with OSHA’s requirements and regulations. In any case, the proper supervision of volunteers should include the provision of a safe working environment.

Workplace Solution

The use of volunteers by nonprofits comes with legal risks, including those arising from injuries that volunteers incur. Those nonprofits fortunate enough to have people willing to serve without compensation are advised to consider carefully the possible legal implications before accepting services from such individuals. Nonprofits with volunteers must provide safe workspaces, consider procuring volunteer accident and volunteer liability policies, and consider formally opting into workers’ compensation insurance, if available.

Edited by John Giovannone and Chelsea Mesa

By Mark A. Lies II

Tuberculosis is once again raising its proverbial head — now this disease may require employer responses under several state and federal laws!

According to the Centers for Disease Control, over one third of the world’s population (nearly 2 billion people) have tuberculosis!  New infections occur at the rate of one per second and approximately 2 million people die per year from the disease! Statistically, one in ten latent infections will progress to “active” TB disease which typically kills half of its victims if left untreated.  The disease is experiencing a resurgence because of a rise in HIV infection levels, drug abuse, and HIV/AIDS.  There has also been significant neglect of worldwide TB control programs.  As a result, according to the Centers for Disease Control, drug resistant strains of TB are emerging and spreading.

The dangers associated with this disease are noted in the March 1, 2013 article in the Wall Street Journal, “Dangerous TB Patient Detained on U.S. Border.” The article notes that this is “the first person to cross and be held in detention while infected with one of the most severe types of drug-resistant tuberculosis known today.”

Consider also the recent complaint filed against Pilgrim’s Pride Corporation, No. 13-CV-924 (N.D. Tex. Feb. 28, 2013). The plaintiffs are family members of employees that worked at the company, and are alleging that they were exposed to life-threatening communicable infection from their family members who were employees that were exposed to life-threatening communicable infection at their place of employment!

As an employer, unless you are directly involved in the healthcare industry, you will typically be ill-equipped to respond in any meaningful fashion to this health hazard.  Frequently you may also be unaware of what potential responses should include after receiving information from an employee, employee family member, or a third party that an employee may be infected or may have been exposed to an infected individual.  The following action items and potential liabilities must be considered by an employer:

Department of Public Health

Since TB constitutes a public health hazard, the employer should contact its local Department of Public Health (DPH), to obtain additional information.  The DPH will be a valuable resource for the employer including actually possibly visiting the workplace to conduct an investigation among the employees regarding potential exposure and providing employee TB screening if there has been a report of active TB carriers within the workplace.  Often the DPH will advise the employer of alternative courses of action which  must be considered and the employer must document its actions which may include requiring the infected employee to remain away from work to prevent further infection.

OSHA

OSHA has no regulation that specifically deals with the health hazards associated with TB outside of a healthcare setting.  While OSHA has become involved with TB in a healthcare setting where employees are reasonably expected to be exposed to patients who may be TB carriers, in a non-healthcare workplace it typically will refer the employer to the DPH.  There is no requirement under OSHA regulations to report a case of employee infection to the agency.  Likewise, there is no requirement to record an incident of an employee infection on the OSHA 300 Log unless there is a medical determination that the infection is “work related” (which typically would be limited to those workplaces where employees are routinely expected to treat patients or provide services to individuals who may have the disease).

Worker’s Compensation

Under workers’ compensation laws, the employer is legally responsible to provide benefits to an employee who sustains an injury or illness that “arises out of and in the course of employment.”  Since TB is not typically a hazard that “arises out of the employment,” the employer would in most cases not be responsible for worker’s compensation benefits if an employee contracts TB (again, unless the employer is involved in work activities where employee exposure to TB is reasonably expected within those activities).  In any event, medical evidence would be required to establish that the exposure occurred within the course of employment.

Family and Medical Leave Act

Under the FMLA, an employer which is subject to the Act and whose employees qualify for leave under the Act, may be required to provide an employee up to twelve (12) weeks of unpaid leave for the employee who has developed a “serious health condition” as a result of TB or to allow that employee, based upon a physician’s certification, leave to provide care and support to an immediate family member who has developed a “serious health condition” resulting from TB.  In that case, the employer must comply with the Act regarding appropriate notifications and documentation, particularly relating to return to work.  One area that is unclear is whether the employer can require an employee to utilize FMLA leave where the employee may have TB exposure and symptoms of infection and the employer is concerned about whether the employee should be kept away from the workplace while being evaluated to determine if the employee has active TB and could be infectious.

Americans with Disabilities Act

Under the ADA, a qualified employee with a “disability” constituting a significant impairment of a major life activity, cannot be discriminated against in his/her employment.  This protection includes an employee who currently has a disability, has a history of a disability or is perceived by the employer to have such a disability. 

In the context of TB, the employer can have several potential liabilities.  Initially, if the employee’s TB infection has resulted in a serious and chronic lung impairment (e.g., fibrosis, scarring, reduced pulmonary function) the employee may have a disability affecting the major life activity of breathing which could require the employer to accommodate the employee with leaves of absence for treatment, reasonable modifications to work activities because of the employee’s inability to perform certain work functions (e.g., certain exertions, use of respirators, exposure to certain substances).

In addition, the employer could be at legal risk if the employee were to claim that the employer refused to hire the employee or to provide other employment benefits to an existing employee because the employer was aware of the employee’s history of a TB related disability or a perception of a disability related to TB when no such disability in fact existed.

Recommendations

Unfortunately, it appears that another worldwide health hazard is making a resurgence and, like most such hazards, has already and will continue to impact the workplace.  It is recommended that the employer take the following steps to preplan for such a hazard.

  • Obtain information on the disease from the local Department of Public Health, the Centers for Disease Control, or the employer’s local health provider so that the employer can determine whether there is a TB health risk in the community and/or within the particular racial or ethnic groups which may be within the workplace.
  • Inform its employees that the employer is committed to providing a safe and healthy workplace (required under the OSHA Act) and that it wants to protect its employees against potential exposure to any disease whether or not work-related, including TB, within the workplace.
  • Advise employees that they are required to report immediately to the employer any communicable diseases (including TB) so that the employer can institute appropriate action with public health authorities to control the spread of the disease within the workplace and ensure that an adequate medical response is occurring.
  • Inform employees that all such medical information will be maintained confidentially and that no employee will be subjected to retaliation for reporting such information.
  • Ensure that the employer documents its actions to respond to actual reported medical or other information involving TB, including recommendations from the DPH, medical providers and the affected employees as the situation is resolved.
  • Follow the employer’s policies relating to documenting any requests for FMLA or other leaves which may be required to treat TB.
  • Document any employee requests for an accommodation and the interactive process with the employee for any TB related “disability”.

If the employer becomes informed of the facts relating to TB and responds in a reasonable manner as outlined above, the employer will be able to properly respond to this health hazard to protect the health of its employees, as well as to limit its potential legal liability.

By Mark A. Lies II and Elizabeth Leifel Ash

In July 2010, OSHA began an inspection of Haasbach, LLC following the death of two teenage workers at a Mt. Carroll, Illinois grain elevator.  The employees became entrapped in corn more than 30 feet deep in the elevator and suffocated.  During the OSHA investigation, OSHA issued a document subpoena to Haasbach’s workers’ compensation insurer, Grinnell Mutual Reinsurance Co., seeking inspection reports and other documents related to Haasbach.  Grinnell objected to the subpoena, arguing in part that loss control inspection reports created by an insurer are privileged documents that may end up in the hands of plaintiffs’ lawyers or other outside parties if turned over to OSHA. 

On May 2, 2011, the U.S. District Court for the Northern District of Illinois rejected Grinnell’s arguments and upheld OSHA’s subpoena, requiring Grinnell to provide the requested documents.  Solis v. Grinnell Mut. Reins. Co., No. 11 C 50014, 2011 WL 1642534 (N.D. Ill. May 2, 2011).  This article discusses the potential effects of this decision on insurers and the documents prepared in the course of the insurer/insured relationship.

THE RELATIONSHIP BETWEEN WORKERS’ COMPENSATION AND OSHA

            Generally speaking, workers’ compensation systems are creations of state law and are entirely separate from occupational safety and health standards.  In some situations, however, the two systems overlap.  For example, some states require workers’ compensation insurers to provide consultation services to insureds whose employee injury rate (also referred to as an experience modification rate) exceeds a certain level.  These consultations are designed to assist employers in improving their workplace health and safety programs with an eye toward reducing employee injuries.  Often, workers’ compensation insurers will provide these consultations even where not required by state law.

            Thus, in some cases, workers’ compensation insurers’ loss control efforts align with OSHA’s overall goal of improving employee safety.  However, the insurer has a fiduciary duty to act in the best interest of its insured.  While these interests may align, conceptually, the insurer is in a tight spot when OSHA begins investigating an insured.  Loss control reports from insurers, for example, may be used by OSHA to prove that the insured had prior knowledge of a particular condition or practice that OSHA believes is violative of one of its regulations.  In that case, the insurer’s report is used against the insured, to whom the insurer owes a fiduciary obligation.  The blurring of these interests creates concern over OSHA’s ability to access and use insurers’ reports during the course of an investigation. 

OSHA’S SUBPOENA POWER

            Under the Occupational Safety and Health Act, 29 U.S.C. § 657(b), OSHA is empowered “to require the attendance and testimony of witnesses and the production of evidence under oath.”  Where the recipient of a subpoena under Section 657(b) objects to the subpoena, the federal courts are authorized to order the subpoena recipient to comply.  In the Grinnell case, OSHA issued a subpoena to the employer’s workers’ compensation insurer to obtain site safety inspections, applications for insurance coverage, and correspondence with the insured.  Over Grinnell’s objection, the court held that the subpoena was proper in that all of the requested documents “reasonably relate to the investigation of the incident and the question of OSHA jurisdiction.” 

            The court also rejected Grinnell’s arguments that the reports were privileged and would result in “chilling effect” on employers’ willingness to allow their insurers to conduct safety inspections to determine the risk of loss.  The court avoided resolving the “chilling effect” argument by calling it a policy decision “to be made somewhere other than in the federal courts.”  The court also held that insurers’ reports are not necessarily privileged.  The court acknowledged, however, that such reports may be privileged if they are conducted at the direction of an attorney. 

RECOMMENDATIONS

            The Grinnell decision has the potential to drive a wedge between workers’ compensation insurers and their insureds when it comes to loss control activities.  Therefore, it is recommended that insureds who consent to safety inspections by their insurers take the following steps to ensure that those inspections do not create liability under the OSHA Act:

  • Unless compelled by state law, authorize an insurer’s inspection only after consulting with legal counsel;
  • Request an opportunity to review a draft report from the insurer and review the draft carefully to identify potential factual errors or editorializing;
  • Ensure that any report issued by the insurer is addressed to the insured’s legal counsel and that the report is marked as Privileged and Confidential.  The report should not be distributed beyond the insured’s decision-makers with regard to employee health and safety;
  • If the report identifies hazards to employees or areas of non-compliance with occupational safety and health regulations, correct the condition immediately, and document all efforts to correct the conditions or respond to the insurer’s recommendations.  Taking corrective measures is not an admission that the condition violated any statute or regulation, but will help avoid “high-gravity” OSHA citations;
  • Ask your insurer to notify you, before responding, of any subpoena received by OSHA or other third party, and ask for a copy of any documents provided.