We are back in San Juan, Puerto Rico for Day 2 of the American Bar Association’s Workplace and Occupational Safety and Health (WOSH) Committee Midwinter Meeting. Today’s sessions featured a diverse mix of experts—behavioral psychologists, management and employee-side attorneys, consultants, and industry representatives—discussing workplace violence, settlement strategies, drug and alcohol challenges, newly-proposed regulations, and broader organizational issues affecting OSHA practice.

Report from the ABA Section of Labor and Employment Law

The morning opened with remarks from leaders within the ABA Section of Labor and Employment Law, who highlighted the Section’s structure, ongoing initiatives, and opportunities for involvement beyond the WOSH Committee. They emphasized the Section’s inclusive governance model, its student advocacy programs, and its expanded resources—including a growing podcast series and development fund aimed at increasing membership.

Workplace Violence and Threat Assessment

The first substantive session of the day dove into workplace violence, featuring a detailed Q&A with Dr. Russell Palarea, a threat assessment expert. The discussion explored what factors influence violent behavior—including anger, financial strain, ideology, notoriety, or delusional beliefs—and clarified that behavioral threat assessment is not about “predicting” violence but understanding probabilities along a continuum of escalating stressors.

Dr. Palarea walked through key models such as the Secret Service’s targeted violence principles, the Calhoun & Weston “Path to Violence” model, and his own “Violence Vortex,” which charts how stress may evolve into anger and action. The panel also emphasized the importance of holistic threat assessments—incorporating organizational, social, psychological, physical, and legal factors—and the need for employers to share relevant information when concerns arise. Finally, the panel discussed boundary-setting, the strategic use (or non-use) of restraining orders, and how police presence can either diffuse or escalate a situation depending on context.

Getting to Settlement: Innovative Strategies to Resolve Complex Cases

The next panel examined settlement dynamics in OSHA matters, highlighting OSHRC’s encouragement of mediated resolution and the practical realities of navigating settlement discussions with government agencies. Former agency officials described institutional resistance—particularly among some enforcement personnel—to reducing large penalties, even where employers offer robust enhanced abatement directly (positively) affecting employee safety.

Panelists also noted challenges associated with escalated review by Regional Solicitors, the emotional dynamics that clients bring to settlement, and the impact of “public shaming” through press releases. The discussion underscored the importance of reframing abatement measures in terms of worker safety, building trust between parties, and leveraging soft skills to reach resolution—particularly in the aftermath of tragic incidents where emotions run high.

Breakout Session: Drugs and Alcohol in the Workplace

One of the breakout sessions focused on the complexities employers face balancing workplace safety with ADA considerations when drug and alcohol issues arise. The panel outlined the tension between drug testing programs and legal protections afforded to employees—emphasizing that while the ADA does not protect current illegal drug use, it does protect employees using prescribed medications that may impair function.

Key takeaways included:

  • Positive tests for legal, prescribed drugs may trigger the duty to engage in the interactive process.
  • Employers must maintain confidentiality regarding accommodations.
  • Potential claims arising from drug-use-related issues include ADA discrimination, privacy claims, retaliation, tort liability, and OSHA or PAGA actions.
  • OSHA does not have a general drug/alcohol rule, but General Duty Clause citations remain possible.
  • The unpreventable employee misconduct defense may apply where employers can demonstrate all required elements.

Breakout Session: SVEP and VPP

The SVEP and VPP breakout panel’s takeaway was simple: now is the moment to sit down with OSHA leadership and tune up both SVEP and VPP so they work the way the regulators and employers need them to. On SVEP, the group flagged due‑process issues that stem from the program’s status as an OSHA policy (not statutory or regulatory), the unconstrained agency discretion, and the limited paths to challenge a designation. The panel urged revisiting the triggers so SVEP truly captures chronic bad actors (e.g., egregious or willful/repeat patterns) instead of tagging a company with an otherwise strong safety record after a single bad day. As a reminder, the current instruction keys eligibility to willful/repeat/failure‑to‑abate findings in fatality/catastrophe cases, at least two willful/repeat high‑gravity serious violations in non‑fat/cat cases, or any egregious case. The panel also called for sensible alignment of consequences and “exit ramps” such as mandatory follow‑ups, public posting on OSHA’s SVEP log, and removal that incentivize real programmatic fixes without branding good‑faith employers indefinitely. On VPP, the consensus was a need for modernization and relaunch with clearer, faster on‑ramps for multi‑site employers, stronger verification around SHMS and leading indicators, and a coherent interaction with SVEP so that one serious incident doesn’t automatically upend a robust, top‑tier safety program.

Heat Illness and Air Quality: State-Level Challenges and General Duty Clause Enforcement

The afternoon panel turned to heat illness—a topic that has gained national attention as OSHA continues its long‑running effort to promulgate a federal heat standard—and other unique regulations such as wildfire smoke exposure. Federal OSHA has never issued a heat stress regulation, but on August 30, 2024, the agency published a proposed rule, followed by a notice-and-comment period that closed just before the start of the Trump Administration. The proposal drew significant engagement, including 12 days of public hearings throughout the summer of 2025. The proposed standard would require employers to implement a written heat illness and injury prevention plan, adopt temperature-based triggers for protective measures, and utilize control strategies such as increased rest breaks, a buddy system, work area modifications, and hazard alerts.

OSHA also issued a Heat Illness Prevention National Emphasis Program (NEP) in April 2022, which provides guidance for inspections of indoor and outdoor worksites in high‑risk industries, emphasizing water, rest, shade, training, and acclimatization as core controls. On “heat priority days” (local heat index ≥ 80°F) and during National Weather Service heat advisories, OSHA will ask about employers’ heat programs during inspections and may conduct programmed inspections in targeted sectors. Extended through April 8, 2026, the NEP runs in parallel with OSHA’s heat‑rulemaking efforts and continued use of the General Duty Clause to address serious heat hazards now.

In the absence of a federal rule, state plans have taken the lead. California pioneered both outdoor and indoor heat standards. California’s outdoor heat protections apply year‑round and activate a heightened “high heat” protocol when temperatures become extreme. For indoor heat, the regulation includes clear triggers—82°F for initial protections and 87°F for escalated controls.

Panelists noted, however, that enforcement is challenging. California enforcement data showed that out of roughly 100 indoor heat investigations, only seven resulted in citations, underscoring the difficulty of recreating temperature conditions during an inspection after an employee complaint. Maryland, Minnesota, Nevada, New Mexico, Oregon, Illinois, and Washington, and other states, have enacted or proposed heat rules of their own, but each uses different temperature thresholds and requirements. As a result, compliance in one state—particularly California—does not guarantee compliance elsewhere and the variety of enacted and proposed regulations could pose substantial challenges for employers.