Seyfarth Synopsis: Seyfarth Shaw’s OSHA/MSHA group is at the ABA’s Occupational Safety and Health Law Committee Midwinter Meeting this week. Today, we heard from panels that discussed California Workplace Violence and Indoor Heat Rules, Issues under the Freedom of Information Act, OSHA’s silica standard, and criminal prosecutions under the OSH and MSH Acts.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Palm Springs, California. Representatives from the OSH Review Commission, the MSH Review Commission, Administrative Law Judges, OSHA, MSHA, the U.S. Department of Labor Solicitor’s Office, and OSHA state plans were present.

Today is the final day of the OSHA Midwinter meeting that earlier this week included discussions on trends in OSHA enforcement as well as the latest updates on Coronavirus.

The morning session included a judges panel featuring five Occupational Safety and Health Review Commission Administrative Law Judges who provided attorneys in attendance instruction on best practices during hearing, including navigating discovery disputes, motion practice, and conduct during trial.

California Regulations on Indoor Heat Illness

The meeting also included panels on California’s the imminent regulations covering (1) indoor heat illness and (2) workplace violence prevention in all industries.

Those who have been closely following the rulemaking know that the latest draft of the soon-to-be standard was in April 2019, almost one year ago. Numerous comments on the April 2019 draft were provided by regulated industries and other interested parties, so the consensus is that there likely will be significant changes in the next draft. Representatives of regulated industries were vocal about criticisms, but also expressed hopefulness that their criticisms will be considered in the final draft. Some of the key criticisms voiced were:

  • The 82 degree threshold is still too low. Industry representatives were pleased that this is 2 degrees higher than the original 80 degree threshold, but there’s a push to get to 85 degrees. The likelihood of the Division raising the threshold to 85, however, is uncertain.
  • Much discussion was focused on how the draft indoor heat illness requirements are far more stringent than the existing outdoor heat illness requirements. Troublesome to industry is that there’s apparently little to no data suggesting that indoor heat is actually a significant hazard to employees. The Division has yet to provide any data-backed rational basis for provisions in the proposed standard, leaving the regulated industry with a sense of arbitrariness underlying the requirements.
  • The proposed regulation addresses high radiant areas, in other words places where there is machinery or equipment generating heat, e.g. an oven in a bakery. This means that employers will need to be mindful of assessing the entire workplace and gauging the temperature in multiple areas. Most of an employer’s facility could be unregulated, but if there are any locations where employees work that meet or exceed threshold temperatures, those areas will be subject to the rule.
  • Representatives expressed concern about the burdensome recordkeeping requirements under the draft. As of now, employers will be required to maintain temperature logs for 12 months. The good news, however, is that the original draft would have considered these logs “exposure records” subject to a 30 year retention schedule.
  • The draft includes a provision that essentially says CalOSHA can still cite employers under the IIPP standard to the extent an indoor work area is not covered by the indoor heat illness prevention standard. CalOSHA has already used the IIPP standard to cite employers for indoor heat hazards, and this provision, if part of the final rule, will continue to allow them to do so.
  • There are numerous scenarios for which application of the proposed standard is unclear, or will be potentially infeasible or highly burdensome. For example, some employers have isolated buildings that contain equipment which needs to be examined from time to time and are worried that under the new rule, these buildings will be subject to engineering controls such as air conditioning.

California Regulations on Workplace Violence

In response to questions and comments from constituents, the Division said the current draft of the proposed general industry workplace violence regulation will be revised “materially.” Part of the revision may involve a roll back, which pleased employer representatives because the rule in its current form is voluminous and complex. But again, that’s just rumor. The final rule remains to be seen, and consensus is that it may be a while before a final rule is promulgated. Interested parties were reminded that when the next comment period opens up, be sure to submit feedback so that it may be considered in the next draft.

Freedom of Information Act

Seyfarth attorney Adam R. Young served on a panel that discussed protecting employer documents from disclosure under the Freedom of Information Act (“FOIA”). Adam discussed the legal standards governing FOIA under new Supreme Court precedent. He provided best practices to help employers protect confidential and proprietary information provided to OSHA during inspections from disclosure to third parties through FOIA. He addressed appropriate markings and disclaimers for preserving confidentiality rights, and how to craft responses to reverse FOIA inquires to minimize production and employer liabilities.

OSHA’s Silica Standard for Construction

A panel also discussed the impact and enforcement of OSHA’s silica standard for construction, which requires employers to limit worker exposures to respirable crystalline silica. The panel discussed OSHA’s FAQ for employers related to implementation and enforcement of the construction crystalline silica standard. The panel answered questions related to the upcoming National Emphasis Program for crystalline silica, including its intended implementation in mid-2020, as well as an upcoming OSHA compliance directive regarding crystalline silica. The main takeaway: OSHA is serious about enforcement of the requirements contained in the crystalline silica standard including medical surveillance, regulated areas, and compliance with Table 1 exposure control methods.

Criminal Enforcement

Finally, we heard from a panel on federal and state prosecutions for criminal violations related to workplace safety and health. In a case involving a willful violation relating to an employee fatality, federal OSHA may refer the matter to the U.S. Department of Justice for criminal prosecution. The Department of Labor has also referred criminal violations relating to conspiracy, aiding and abetting, false statements, obstruction, witness tampering, destruction of evidence, and aiding and abetting. In California, the Bureau of Investigation opens a criminal investigation into every fatality case and refer the cases to state prosecutors for “appropriate action.” The referral can take place prior to the issuance of citations, and state criminal prosecutors may play an active role in the inspection. Total criminal penalties in California, when including court costs and victim restitution, can run more than $4.5m.