By Brent I. ClarkBenjamin D. BriggsPatrick D. JoyceAdam R. YoungA. Scott HeckerMelissa A. Ortega, and Matthew A. Sloan

Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Sarasota, Florida. The meeting includes representatives from the U.S. Department of Labor, OSH Review Commission, the MSH Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.

Day 2 began with a panel discussion of significant, recent, safety-related cases. The panel included Edmund Baird, Associate Solicitor for the Occupational Safety and Health (OSH) Division of the U.S. Department of Labor. Among the matters discussed was the recent Supreme Court litigation in BST Holdings, LLC V. OSHA regarding the “vaccine or test” emergency temporary standard for non-healthcare private employers with over 100 employees. Baird noted his disagreement with the Supreme Court’s decision, explaining there was precedent for elements of the ETS (including vaccination) in OSHA’s bloodborne pathogen standard. Baird also noted it was unusual that the Supreme Court did not focus as heavily as anticipated on OSHA’s emergency authority, and instead focused its energies on the agency’s general authority to address hazards like the pandemic.

Panelists provided thoughts on the Fifth Circuit’s decision in D.R.T.G. Builders, L.L.C. v. Occupational Safety and Health Review Commission. In that case, the Fifth Circuit considered whether OSHA had properly served a small employer with notice of citations, analyzing the question under a multifactor analysis involving danger of prejudice, length of delay, good faith, and “the reason for the delay, including whether it was in the reasonable control of the movant.” Baird welcomed the Court’s decision, which upheld the dismissal of the employer’s late notice of contest, and the use of the multifactor rule. Baird emphasized that the onus is on employers to have processes in place to process and sort mail, including potential OSHA citations.

Then, a panel of government, management, and employee rights advocates discussed OSHA’s pandemic endgame. Peter J. Vassalo, Counsel for Special Litigation in the OSH Division, emphasized that the agency will continue to enforce COVID-19 safety using the General Duty Clause, the COVID-19 National Emphasis Program, and pre-existing safety standards. He noted that employers are well-equipped with tools and information to keep employees safe and abate citations. His best advice was “use the tools available to address COVID” and that employers “know what works.” This comment elicited a retort from the management representative on the panel, who explained that companies look to OSHA for specific guidance on abatement and employee protection and have not always known “what works,” especially at the beginning of the pandemic.

After the panel discussions, attendees split up among various breakout sessions, including a panel discussion on state plan states. Elliott Furst, Senior Counsel, Attorney General of Washington, shared some insights into happenings in the state of Washington. Notably, Washington has accepted a rulemaking petition for wildfire smoke and is planning to update its rule regarding heat stress, including changes to the trigger levels, to make it a more protective rule in light of recent warming trends in the state. Washington is also working on a permanent infection disease rule. The panel also discussed SB 606 in California, which, in part, creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation if Cal/OSHA determines that either of the following factors “is true”: (a) the employer has a non-compliant written policy or procedure; or (b) Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.”

In the Construction and Infrastructure breakout, Scott Ketchum, head of OSHA’s Directorate of Construction provided an overview of his office. OSHA’s construction enforcement will become more important as the infrastructure bill spurs industry activity, with more than $200bn to be spent on roads and bridges, and $65bn spent on telecommunications towers and fiber optic installation. Mr. Ketchum advised that enforcement and compliance assistance will address the “Focus Four” hazards: 1) Falls; 2) Struck-by; 3) Electrocutions; and 4) Caught in/between. Director Ketchum represented that these hazards account for 60% of construction deaths and that many of the top 10 construction violations derive from related concerns. Juan Lopez discussed OSHA’s use of drones and the agency’s drone directive, as well as ways to support vulnerable populations in construction, particularly Latino, Spanish-speaking individuals and immigrants. OSHA works with DHS to avoid chilling effects surrounding complaints and inspections, and, Lopez noted, OSH Act rights are not contingent on immigration status. Lopez committed that OSHA does not see immigration status as relevant to a safety and health inspection. Marcus Braswell of Sugarman Susskind Braswell & Herrera closed the panel opining that the Infrastructure Investment and Jobs Act is really about the safety of the country, so workplace safety is integral to coming infrastructure projects. He highlighted the important of proactivity and communication, summarized OSHA’s processes for focused inspections, and thanked attendees for their partnership in ensuring worker safety.

The Creative Litigation breakout focused on creative strategies from across the country for enforcing OSHA safety standards and other workplace safety requirements through private actions and how employers can respond. Among the more interesting strategies was to utilize sophisticated plaintiffs’ counsel to set up an employee whistleblower retaliation claim under one of the OSHA-enforced whistleblower provisions.

The last panel of Day 2 featured a discussion regarding heat illness, including some prognostication about what a future heat illness standard might look like. There was some healthy debate over whether the rule should be “prescriptive” (i.e. with specific triggers and thresholds and required actions tied those triggers and thresholds) or “performance-based” (requiring that policies be in place but affording employers greater flexibility to fit the policies to their specific workplaces). The standard, as proposed, would apply to all General Industry and Construction employers, including indoor and outdoor work. The government representative, Anne Godoy, Senior Attorney, U.S. Department of Labor,  explained that the agency is still in the information gathering stage and is analyzing potential scopes and thresholds from both a scientific and feasibility perspective. She offered no prediction on estimated time frame. Panelists and the audience engaged in a heated discussion as to whether the Supreme Court’s decision on the emergency temporary standard has created jurisprudence that will disallow or limit OSHA’s ability to regulate heat illness hazards, a pervasive hazard that affects industries very differently. Heat illness is an issue we have tracked heavily in our ongoing blogs. We look forward to additional updates tomorrow.