By Brent I. Clark, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, Daniel R. Birnbaum, and Melissa A. Ortega
Seyfarth Synopsis: This week we are attending the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting in San Diego, California. The meeting includes representatives from the U.S. Department of Labor, including the Occupational Safety and Health Review Commission, the Mine Safety and Health Review Commission, Administrative Law Judges, and the Solicitor’s Office, as well as management, labor, and safety attorneys and professionals.
Today’s session started with a panel discussing recent significant caselaw affecting workplace safety. The panelists talked about whistleblower related litigation and a recent case that affirmed that unpalatable or unwelcome job changes are not necessarily considered adverse employment actions for retaliation purposes. The case is currently pending at the United States Supreme Court, who could potentially issue a decision that significantly impacts whistleblower cases moving forward. The panel also discussed a recent case involving HAZWOPER citations that were vacated by the Review Commission and appeals court when a release of ammonia was not “uncontrolled” and the standard did not apply. A note was made that a similar argument could extend to the lockout / tagout standard when equipment is designed to not result in “unexpected energization.” A case involving a general duty clause violation that is currently on appeal to an appeals court was also discussed. The heart of the conversation focused on whether an employer’s reliance on a specialty contractor to perform work was an affirmative defense that must be proven by an employer or a part of the government’s case to prove employer knowledge. A decision by the appeals court could impact how employers plead affirmative defenses and clarify who has the burden of proof in specialty contractor cases. Finally, continuing on the theme of discussing heat illness issues from the previous day, the panel spoke on a recent heat illness case where the Review Commission reinstated numerous citations that were previously vacated. The Review Commission acknowledged that heat was a recognized hazard and there are ways to protect employees from the hazard that includes work or rest cycles, reducing time outdoors, and acclimatizing employees.
The next panel discussed COVID-19, and its impact on both the structure of the workplace and OSHA regulatory efforts. The panel discussed the legal and business challenges faced by the workplace during the pandemic and reminded the attendees that there remains a high potential for a future pandemic down the road. To that end, the panelists discussed that employers need to be prepared to respond quickly through remote work practices, use of PPE and other recognized practices for handling infectious diseases. The panel also acknowledged that the COVID-19 pandemic has led to a more informed workplace with regard to what safety and health standards exist in the workplace. Further, employees have become more aware of OSHA’s retaliatory provisions and their 11(c) rights. The panelists also tied in the COVID-19 pandemic to concerns about mental health issues in the workplace, and the increased potential for workplace violence cases that may result.
The conference then split into break-out sessions. During a session on discrimination, a panel looked at how issues such as bullying could be addressed by workplace safety laws, including as a workplace violence incident under the general duty clause, or whistleblower statutes. The panel also observed that a bullying issue that leads to employee mental health issues that are work related could result in a recordable incident on an OSHA 300 form.
We also attended a breakout session regarding updates on OSHA enforcement in the Construction industry. OSHA Directorate of Construction Director Scott Ketcham addressed major concerns and emphases with regard to construction. He noted data that showed a fatality rate three times higher in construction. With less than 8% of workers in the construction industry, OSHA conducts more than 50% of its inspections against construction employers. He discussed recent examples of bridge collapses and truss construction collapses, indicating major alleged safety shortcomings. He discussed falls and the risks posed by falls at great length, as one in ten worker deaths (in all industries) is due to fall. He explained the agency’s focus on fall hazards for its inspections and citations, and a pending National Emphasis Program relating to fall hazards.
OSHA CSHOs are already instructed to stop any time they see employees working at height (or in a trench) and ensure that appropriate safeguards are in place. He also discussed current regulatory activity, including new design requirements for Powered Industrial Trucks (replacing the 1969 standards), pending revisions to the lead regulations, and a Worker Walk Around Representation Notice of Proposal Rule Making. OSHA plans to clarify the definition of construction further, including a new definition of “heavy maintenance” as a type of construction. The regulated community often continues to grapple with the issue and complying with detailed different regulations as to General Industry and Construction regulations.
USDOL Staff Attorney Juan Lopez discussed examples of aggressive enforcement actions. He gave examples of willful-egregious citations, in which OSHA was highly motivated to issue citations based on prior fall fatalities at other worksites for the same employer. He discussed how, in that case, the agency also coordinated with local authorities to have the employer’s license revoked. He discussed violation by violation citations, including a recent citation where OSHA issued thirteen separate citations based on 13 employees not wearing fall protection. Notably, he repeatedly referred to admissions supervisors made during management interviews as the key evidence in each case. He also discussed USDOL’s efforts to pierce the corporate veil as to OSHA penalties, to create individual responsibility for OSHA violations for ownership.
At a separate Cal/OSHA breakout discussion, panelists discussed some of the unique challenges, opportunities, and regulatory approaches to administering and operating under the country’s largest OSHA state plan. The discussion focused on wildfires and air quality (including the importance of the Air Quality Index, or AQI), outdoor heat and its potential risks, and H-2A agricultural employees.
Finally, a panel discussed whistleblower laws, including both the statutes that protect employees from retaliation and those that provide rewards, such as the False Claims Act. The panel focused on the best practices employers can take when responding to such claims to reduce liability.
More to come from the conference tomorrow.