An employer may not be held liable for a violation of the Occupational Safety and Health Act (“OSHA”) based solely on a supervisor’s knowledge of his own misconduct, the U.S. Court of Appeal for the Eleventh Circuit in Atlanta has ruled in a case of first impression for the circuit. ComTran Group v. U.S. Dep’t of Labor, No. 12-10275 (11th Cir. Jul. 24, 2013). Reversing the Occupational Safety and Health Review Commission’s decision that the employer violated OSHA, the Court concluded the Commission erroneously had relieved the Secretary of Labor of her burden to prove the employer’s knowledge of the violation by holding that the supervisor’s knowledge of his own misconduct could be imputed to the employer.
 
The Court joins the Third, Fourth, Fifth and Tenth Circuits in so ruling. Click here for additional details.
 

Under the Federal Aviation Administration (“FAA”) Modernization and Reform Act of 2012, Congress gave the FAA six months to issue a policy statement outlining those instances where OSHA could exercise jurisdiction over the safety and health of flight attendants. PL 112-95, Feb. 14, 2012, 126 STAT. 135.

On August 27, 2013, the FAA issued a final policy statement outlining three areas that OSHA could regulate for cabin crewmembers on aircraft in operation. 78 FR 52848. This policy statement will allow OSHA to apply its hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.1030), and hazard communication standard (29 C.F.R. § 1910.1200) to cabin crewmembers. However, the policy statement does not apply to flightcrew members (i.e., pilots and co-pilots). The policy takes effect September 26, 2013, but OSHA will not begin to enforce the standards until March 26, 2014. During this six-month period, OSHA will “engage in outreach and compliance assistance activities” with the airlines.

The three OSHA standards will apply only to cabin crewmembers on aircraft in operation. In its policy statement, the FAA defined “in operation” as “the time [an aircraft] is first boarded by a crewmember, preparatory to a flight, to the time the last crewmember leaves the aircraft after completion of that flight, including stops on the ground during which at least one crewmember remains on the aircraft, even if the engines are shut down.” An aircraft crewmember is any employee who is “assigned to perform dut[ies] in an aircraft cabin when the aircraft is in operation (other than flightcrew members).”

According to the Federal Register Notice, the FAA and OSHA do not anticipate that OSHA will need to conduct enforcement inspections on board aircraft. OSHA’s bloodborne pathogen, hazard communication and hearing conservation standards require employers to develop and implement programs for each of these areas for affected employees. The FAA and OSHA anticipate that enforcement of these standards can be done by a review of airlines programs to verify compliance without having to conduct an investigation on board an aircraft.

While the enforcement of these three standards will be new to the airline industry, OSHA’s regulations on recordkeeping (§ 1904) and access to employee exposure and medical records regulations (§ 1910.1020) have always applied to airline employees. Additionally, OSHA’s whistleblower protections (section 11(c) of the OSH Act, 29 U.S.C. § 660(c)) continue to apply to cabin crewmembers.

OSHA remains preempted to enforce its standards on aircrafts in operation other than those specifically stated in the FAA policy statement. Additionally, the FAA stated that “the general duty clause will not be applied to the cabin environment…[and] [i]f the agencies later decide to add additional hazards including any hazards covered by the General Duty Clause, they will use a transparent process including notice and comment to adopt such changes.” OSHA cannot use the General Duty Clause to regulate potential hazards, such as cosmic radiation, ergonomics, heat stress, slip and falls or pinch points.

Airline employers should ensure they have the appropriate bloodborne pathogen, hazard communication and hearing conservation programs and relevant training in place for aircabin crewmembers prior to the March 26, 2014, enforcement date.

In the wake of the devastating West Texas fertilizer plant explosion in April, the federal government is moving to improve chemical facility safety and security. We anticipate a number of significant government proposals and actions over the next year.

The Presidential Executive Order of August 1, 2013, “Improving Chemical Facility Safety and Security,” directs the formation of a Working Group made up of the heads of six federal departments (the Departments of Homeland Security, Agriculture, Justice, Labor, Transportation and the Environmental Protection Agency). Over the next nine months the group is tasked with implementing and creating plans for:

  • improving operational coordination with state and local partners;
  • enhancing federal agency coordination and information sharing;
  • modernizing policies, regulations and standards; and
  • working with stakeholders to identify best practices. 

A plan for a regional test program will be developed to ensure that regulators and emergency responders have ready access to key information to prevent, prepare for and respond to chemical incidents. The Working Group will consult with the Chemical Safety Board (CSB).

The EO directs agencies to examine new options for ammonium nitrate and other chemical storage, handling and sales, including regulatory and legislative initiatives, and additions or changes to current federal chemical risk management programs.

Crisis Management: The August 1, 2013, EO demonstrates why the objectives of successful crisis management and financial risk reduction require experience with the multiple agencies involved and legal expertise in their varied statutory mandates. Investigation procedures for the identification and collection of evidence that affect a company’s risk vary widely by agency, as do each agency’s approach to press, community, and employee relations, and even cooperation with other agencies. For example, CSB has refused to conduct joint interviews or document collection with OSHA and other agencies, requiring companies to develop strategies to minimize multiple, duplicative and potentially conflicting investigation efforts.

Company counsel, with a duty to cooperate with all agencies (and insurance investigators), seek to conduct their own privileged investigation with experts. This may have to be done while facing rapid-fire document and interview demands from multiple agencies. Complying with agency demands, the duty to preserve electronic data, communications, paper documents and physical evidence, and providing notice to third parties potentially at fault can demand a massive effort and require a proven methodology.

The speed of crisis investigations and decisionmaking, and the massive legal risks they pose, including possible criminal prosecution and “bet the company” financial risks, mean that a seasoned crisis team should be prepared to respond 24/7 on multiple tracks. Otherwise, despite the President’s Executive Order, multiple agencies will compete to chart the course of an investigation and determine the outcome, without prioritizing or protecting the interests of the company and its employees.

An employer could be held liable for its employee’s off-duty accident as long as the proximate cause of the injury (here, alcohol consumption) occurred within the scope of employment, the California Court of Appeal has held, reversing summary judgment in favor of the employer. The Court further ruled it was irrelevant that the effect of the employee’s negligence occurred after he had arrived home from the employer-sponsored party.  The full article can be accessed here.

If there’s one sound that perks the ears of safety officers at any medical facility, it’s a knock at the door from an OSHA inspector.

OSHA inspections can seem like a nerve-wrecking and stressful ordeal, particularly for smaller facilities, but with the right preparation, the inspection process can be relatively painless. This preparation revolves around having the appropriate documentation to provide the OSHA inspector, familiarizing yourself with every step of the inspection, and knowing how the current standards relate to the risks in your facility so that you can properly address any potential citations.

This excellent article, which appeared in HC Pro’s Medical Environment Update, is linked here, with permission, from HC Pro, Inc.

The Occupational Safety and Health Administration’s proposal to comprehensively regulate silica (quartz) in general industry, maritime, and construction is anticipated by Labor Day. Publication of the proposal to extensively regulate one of the most common minerals on Earth, like arsenic and lead, will trigger a public comment period and hearings.
 
The proposed rule, which could be one of the most significant rulemakings in OSHA’s history, is expected to cut in half the permissible exposure limit (PEL) for respirable silica dust and require a wide range of ancillary protective measures, including engineering controls, air and medical monitoring, restricted work areas, housekeeping mandates, respirator use, warnings, training and recordkeeping.  The full article can be read here.

I am pleased to announce the addition of several new leading safety and health lawyers to the Jackson Lewis team.  Joining us from Patton Boggs are Henry Chajet, Mark Savit, Brian Hendrix, Avi Meyerstein, Donna Pryor, and Bob Horn.  And joining us from Ogletree Deakins is Tressi Cordaro.  Collectively, these outstanding lawyers have several decades of experience in safety and health law.

These new team members build upon other recent additions to our Group, including Pedro Forment, Mike Taylor, Michelle Duncan, and Nickole Winnett.  Our goal continues to be to provide the best legal representation in the safety and health arena and these recent additions will help our clients in this important area of the law.

If you have any safety and health issue, please do not hesitate to contact me or the Jackson Lewis attorney with whom you regularly work.       
 

OSHA recently issued its FY 2014 Budget Justification.  The document spans over 130 pages and provides a wealth of information regarding the Agency’s priorities.

In FY 2014, OSHA proposes to continue its aggressive enforcement posture.  The Budget Justification cites a recent study published in Science magazine entitled Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss, which claimed that enforcement inspections result in safer workplaces and provide employers significant savings through reduced workers’ compensation costs.  OSHA states in the Justification that “the average employer saved $355,000 (in 2011 dollars) as a result of an OSHA inspection.”  The Justification also states that OSHA is currently working with the Department of Labor’s policy office to “test the impact of inspections on injury and illness rates and overall compliance with OSHA standards and regulations for establishments on OSHA’s targeted inspection lists.”

OSHA also seeks an increase in funding for its standard setting activities, including an increase in $2 million dollars for “contract support for the agency’s rulemaking efforts to protect workers from complex and dangerous hazards.”  With the funding requested:

OSHA projects that it will issue four Final Rules (Infectious Disease, Recordkeeping Modernization, Beryllium, and Vertical Tandem Lifts), seven Notices of Proposed Rulemaking (Standards Improvement Project Phase IV, Infectious Disease, Injury and Illness Prevention Programs, Combustible Dust, Backover Protection, and two consensus standard update actions), and initiate SBREFA reviews for five rules (Combustible Dust, Backover Protection, one chemical standard, and two other initiatives).

OSHA is requesting a significant decrease in funding for its Federal Compliance Assistance programs.  State OSHA-program support and State compliance assistance would remain the same under OSHA’s 2014 Budget request.

The Budget Justification is a good indicator of the priorities of the Agency.  The Agency will continue to emphasize enforcement and regulatory activities and employers should continue to monitor the Agency’s efforts in these areas.
 

In the latest round in the debate over employment-based wellness programs, the U.S. Departments of Health and Human Services (HSS), Labor and the Treasury have issued final regulations on the treatment of such programs under the Affordable Care Act (ACA). While the new regulations raise the maximum permissible reward that may be offered in connection with certain wellness programs, they make clear that outcome-based financial incentives must be widely available to program participants. All employers who have incorporated outcome-based wellness program as part of their group health plan should review the new regulations carefully to ensure their programs are in compliance before the regulations take effect. To read the full article, click here.