By Brent I. Clark and Craig B. Simonsen

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.

The study included four focus groups conducted with thirty-three managers of employees that drive for work. The managers represented small businesses across four motor vehicle user groups: (1) first responders, (2) oil and gas workers, (3) light-vehicle drivers (e.g., workers who operate passenger vehicles for a variety of work purposes, such as salespeople, home health care workers, realtors, and food delivery workers), and (4) truck drivers.

NIOSH, in its Science Blog, related that vehicle crashes were a leading cause of workplace fatalities, with “1,252 deaths of vehicle drivers and passengers on public roads in 2016. In 2013, on-the-job crashes cost employers over $25 billion and led to 155,000 lost work days.”

The study found that the managers of truck and light vehicle drivers noted a range of minimal  approaches to safety, such as mandatory vehicle inspections. Of particular note on the topic of the effectiveness of training is that managers indicated that safety materials needed to be designed that take into account the limited time that they and their drivers can devote to safety training. “Drivers’ varied work schedules and intense workload limit opportunities for group discussions about roadway safety. Managers said they and their drivers prefer concise, highly visual, and interactive communication products, such as short videos and simulations.”

NIOSH concluded that despite the human and financial costs of crashes, safety programs developed to prevent motor vehicle crashes are unlikely to work unless they are designed with the employers’ needs and constraints in mind. “This is particularly true among smaller and midsize employers, which need additional resources and knowledge to be successful.”

For employers, it is important to have safety programs in place that protect company employees. Employers can be sure that, given a workplace accident, agency inspectors may well be reviewing the employer’s policy documents and training materials, and will likely interview the injured employee about her training and understanding of the materials.

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 Frederick T. Smith, Jennifer L. Mora, and Christopher W. Kelleher

Seyfarth Synopsis: On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.

The Department of Transportation (DOT) has published its long-awaited final rule amending its drug testing program for DOT-regulated employers. The new rule comes in the wake of the Department of Health and Human Services (HHS) revised “Mandatory Guidelines for Federal Workplace Drug Testing Programs” which became effective on October 1, 2017.

The new DOT rule makes the following significant changes:

  • Adding four semi-synthetic opioids (hydrocodone, oxycodone, hydromorphone, and oxymorphone) to the drug testing panel, which is “intended to help address the nation-wide epidemic of opioid abuse” and create safer conditions for transportation industries and the public;
  • Adding methylenedioxyamphetamine (MDA) as an initial test analyte because, in addition to being considered a drug of abuse, it is a metabolite of methylenedioxyethylamphetaime (MDEA) and methylenedioxymethamphetamine (“MDMA”), and such testing potentially acts as a deterrent;
  • Removing testing for MDEA from the existing drug testing panel;
  • Removing the requirement for employers and consortium/third party administrators (C/TPAs) to submit blind specimens in order to relieve unnecessary burdens on employers, C/TPAs, and other parties; and
  • Adding three “fatal flaws” to the list of when a laboratory would reject a specimen and modifying the “shy bladder” process so that the collector will discard certain questionable specimens.

The new rule goes into effect on January 1, 2018. Employers who comply with DOT standards when drug testing should modify their drug testing policies accordingly. Employers that are not subject to DOT requirements, but comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs also should consider whether to modify their drug testing policies to comply with the new rules and guidelines.

If you have questions about the new regulations or employee drug testing in general, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment or Workplace Policies and Handbooks Teams.

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

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 Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

shutterstock_39448051Seyfarth Synopsis: For companies in the freight industry, if sustainability is important at your company or to its board of directors, then you may wish to investigate the EPA’s updated Smartway program, with its new resources and tools.

The U.S. Environmental Protection Agency’s SmartWay program has recently been updated and republished in a report called Smartway 2020: A New Era of Freight Sustainability, and in a revamping of its Smartway website.

The EPA’s SmartWay program is intended to increase the efficiency of how our nation moves goods, to help address air quality challenges from the transportation supply chain, to improve public health, and to “reduce freight’s contribution to climate change.”

As a partnership between the EPA and the freight industry, participation in SmartWay has grown from fewer than 20 partners in 2004, to more than 3,000 today. According to EPA, since 2004, SmartWay partners have saved over 7 billion gallons of fuel, lowered fuel costs by $24.9 billion, and reduced carbon emissions by 72.8 million metric tons.

EPA’s Smartway Vision 2020 has four elements, including:

  • Coverage of the transportation supply chain through the development of carbon assessment and monitoring tools to cover all modes of freight transport (including truck, train, barge, air, and marine), to leverage national and international efforts to streamline freight data, amplify the program’s reach and reduce freight emissions worldwide.
  • “SmartWay’s carbon accounting tools use peer-reviewed methodologies and EPA standards to generate reliable performance data.”
  • SmartWay serves as a template for other countries and regions that are working to establish partnership-based programs to address freight emissions.
  • “SmartWay will serve as a neutral and credible platform for increased information exchange and thought leadership, including webinars, education, peer review, speaking engagements, partner profiles, case studies and best practices guidance.”

In May 2016 the EPA made available the new “2016 SmartWay Multimodal Tool,” along with supporting documents. As published, carriers are being told that they “must submit a completed and accurate SmartWay Multimodal Tool” to EPA by June 23, 2017, to make sure company data is in the EPA partner database when shippers and logistics companies go looking for providers.

To assist the industry in this campaign, the Agency is providing a Tool Demo Webinar, 2016 SmartWay Logistics Company Tool Demonstration, on July 20, 2016.

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

By Jeryl L. Olson, Ilana R. Morady, Patrick D. Joyce, Philip L. Comella, and Craig B. Simonsen

shutterstock_30524071The Pipeline and Hazardous Materials Safety Administration (PHMSA) just announced that it has amended the Hazardous Materials Regulations (HMR). 81 Fed. Reg. 18527 (March 31, 2016).

It has done so by adopting its proposed regulatory amendments applicable to the reverse logistics shipments of unsellable products containing hazardous materials (for example, expired over-the-counter drugs, health care products, damaged and open retail containers of soaps, cleaners, household products, spilled materials, etc.) from a retail facility back to a distribution or reclamation facility by highway transportation.

We have previously blogged about state and federal hazardous waste regulations and their impacts on unsellable products in the retail industry, and have also blogged specifically about the proposed HMR rule affecting transportation of retail wastes and recyclables. The new HMR final rule revises the HMR to include a definition of “reverse logistics,” and provides provisions for the shipment of unsellable products containing hazardous materials within the scope of the new definition.

Specifically, PHMSA has adopted a definition of “reverse logistics” for unsellable products containing hazardous materials as “the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier, or distribution facility for the purpose of capturing value (e.g., to receive manufacturer’s credit), recall, replacement, recycling, or similar reason.”

Importantly, under the final rule, reverse logistics shipments may only be shipped via highway carrier — rail and air transport of reverse logistics shipments are prohibited.  The final rule also requires that all materials sent in reverse logistics by private carrier contain the marking “REVERSE LOGISTICS – HIGHWAY TRANSPORT ONLY – UNDER 49 CFR 173.157” to notify the carrier that the shipment could contain products with limited amounts of hazardous materials.  Reverse logistics shipments sent by non-private carriers must still comply with all limited quantity conditions contained in 49 CFR 172.315.

This final rule also expands a previously existing exception for return shipments of used automobile batteries from multiple shippers using a single transport vehicle between a retail facility and a recycling center.

Retailers should keep in mind that this final rule is independent of, and in addition to, state and federal waste (RCRA) rules applicable to returns of products containing hazardous materials, including, but not limited to, waste determination requirements for such products, hazardous waste generation thresholds, manifesting requirements, etc. Retailers engaged in reverse logistics must ensure they are in compliance with state and federal RCRA rules in addition to this new final PHMSA rule.

The Final rule was effective on March 31, 2016.

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.

By Ilana R. Morady and Craig B. Simonsen

The Federal Motor Carrier Safety Administration (FMCSA) has just issued a notice and request for comment on “The Impact of Driver Compensation on Commercial Motor Vehicle Safety.” 80 Fed. Reg. 6159 (February 4, 2015).

The FMCSA has been studying the relationship between commercial motor vehicle (CMV) driver compensation and safety. The most widely-used system for paying CMV drivers is “pay per mile” (i.e., drivers receive a set amount of money for each mile driven). It is suggested in the question that a safety consequence of the pay-per-mile system is that it may reward drivers for speeding and for driving excessive miles.

In 2012, FMCSA awarded an $800,000 contract for the study. In August 2014, FMCSA published a notice and request for comments (79 Fed. Reg. 51638) on this issue, seeking information, data, and comments on topics such as the average length of hauls, and the average driving experience of drivers working for companies included in the sample.

In response to the August 2014 request for comments the Agency received forty-seven unique public comments which have been reviewed and grouped by common themes. The FMCSA responses to the 2014 public comments are published in this new notice. The study report is due in September 2015.

Comments may be submitted on the notice to Docket No. FMCSA–2014–0325, by March 6, 2015.

By Andrew H. Perellis, Ilana R. Morady, and Craig B. Simonsen

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has adopted, retroactively, amendments to the Hazardous Materials Regulations (HMRs) to maintain alignment with international standards by incorporating changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. 80 Fed. Reg. 1076 (January 8, 2015).

PHMSA proposed the rule last summer (79 Fed. Reg. 50742) (August 25, 2014), indicating that the revisions were necessary to harmonize the HMRs with changes to the International Maritime Dangerous Goods Code (IMDG Code), the International Civil Aviation Organization’s (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations (UN Model Regulations).

The Agency indicates that “these changes ensure the domestic hazard classification, hazard communication and packaging requirements are consistent with those employed throughout the world.” To stress the importance of these amendments, PHMSA notes that “foreign trade of chemicals is a large segment of the United States economy. In 2000, U.S. foreign trade in chemicals totaled $154 billion and generated a $6 billion positive trade balance.”

The new rules were adopted effective January 1, 2015, with a “voluntary compliance date” beginning January 1, 2015, and a “delayed compliance date” of January 1, 2016. The “voluntary compliance date” provides the regulated community with the opportunity to use up old stock, such as shipping labels that refer to the wrong shipping names, prior to implementation of the required compliance in 2016.

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By Ada W. Dolph and Craig B. Simonsen

A railroad’s decision to terminate an apprentice electrician whose OSHA injury report revealed he had not been truthful in his employment record about other prior workplace injuries was unlawful retaliation under the whistleblower provision of the Federal Railroad Safety Act, 49 U.S.C. § 20109 (FRSA), OSHA has ordered.  The railroad was ordered to pay $50,000 in compensatory damages, $150,000 in punitive damages, more than $22,000 in back wages and interest, and reasonable attorney’s fees.

After the employee was seriously injured at work, the injury was reported to OSHA and included information regarding prior unrelated workplace injuries.  The company investigated the injury, reviewed the information reported to OSHA, and concluded that the employee had been dishonest with the company about his prior workplace injury record.  As a result, the company terminated the employee’s employment.  The employee filed a whistleblower complaint under FRSA asserting that his employment had been terminated in retaliation for reporting workplace injuries.  OSHA agreed, leveling this significant damages award against the company.

This decision demonstrates how broadly OSHA will interpret employee whistleblower protections.  Employers should tread lightly when taking disciplinary action that is the fruit of any aspect of employee activity that is permitted under the whistleblower provisions of FRSA or any of the 21 other statutes that OSHA is charged with enforcing. 

Ada Dolph is a Partner and Craig Simonsen is a Senior Litigation Paralegal, in Seyfarth Shaw LLP’s Chicago office.  If you would like further information on this topic, please contact a member of the Workplace Whistleblower Team, your Seyfarth attorney, Ada Dolph at adolph@seyfarth.com, or Craig Simonsen at csimonsen@seyfarth.com.