An employer who requires or permits employees to work from their homes has limited responsibilities for the safety and health of the employee’s working conditions. The Occupational Safety and Health Administration (OSHA) sharply distinguishes between home offices and other home workplaces, such as home manufacturing facilities in which, for example, employees assemble electronic parts.
The United States Court of Appeals for the District of Columbia Circuit recently issued a decision that should be of concern to every employer and safety professional. The case involved an employer that had ambitious but unimplemented requirements in its written safety procedures—a lack of implementation that in large part caused the employer to be found guilty of a violation of the General Duty Clause of the Occupational Safety and Health Act.
Judges often advise appellate lawyers to provide in their briefs a clear path to the outcome they want. The Supreme Court of the United States recently denied review in a case that exemplified that lesson yet again.
The U.S. Chemical Safety and Hazard Investigation Board (CSB) adopted regulations on February 21, 2020, under the Clean Air Act requiring the reporting of certain accidental releases. Their purpose is to enable the CSB to more quickly determine which incidents it should investigate.
Not so long ago, federal courts began to hold that a federal statute of limitations did not begin to run until the plaintiff knew or reasonably should have known of his or her claim. This is commonly called the “discovery rule.” The rule originated in state court tort cases involving surgical implements left in patients who did not discover their surgeons’ negligence until long after the limitations period had run.
Employers consider many factors when choosing whether to challenge investigatory subpoenas. They now have an additional consideration: whether a court might grant the Occupational Safety and Health Administration (OSHA) more time to issue a citation if the employer challenges a subpoena.
The justices of the Supreme Court of the United States have again limited the reach of Chevron deference. On May 28, 2019, the Court in Smith v. Berryhill carved another exception into what has lately proven to be its least-favored precedent. It held that Chevron deference does not apply to the scope of judicial review.
On September 28, 2018, the independent Occupational Safety and Health Review Commission (OSHRC) agreed with Ogletree Deakins’ argument that the Occupational Safety and Health Administration’s (OSHA) standard requiring emergency eye-flushing and body-washing facilities on construction sites is invalid.
Chevron deference is increasingly coming under fire from the justices of the Supreme Court of the United States. That came through loud and clear in Pereira v. Sessions, issued on June 21, 2018. Not only did the approach of the majority opinion appear to be at odds with the Court’s past approach to Chevron deference, but Justice Kennedy stated in a concurring opinion that “it seems necessary and appropriate to reconsider . . . the premises that underlie Chevron and how courts have implemented that decision.” Justice Alito asserted in dissent that “the Court, for whatever reason, is simply ignoring Chevron.”
On June 21, 2018, the Supreme Court of the United States held in Lucia v. Securities and Exchange Commission that the former practice of the Securities and Exchange Commission (SEC) of having its staff employees appoint administrative law judges (ALJs) violated the Appointments Clause of the U.S. Constitution.
The decision this week of the Supreme Court of the United States in Epic Systems Corporation v. Lewis will likely prove important on issues other than the arbitration of labor disputes.
If you’ve ever wondered what a process safety standard drafted by a union would look like, the State of Washington’s recent draft Process Safety Requirements for Petroleum Refineries provides a glimpse. Using California’s 2017 Process Safety Management for Petroleum Refineries as its baseline, Washington’s Department of Labor and Industries released a draft of a process safety management standard that would apply to the state’s 5 petroleum refineries.
The Supreme Court of the United States, on Friday, January 12, 2018, agreed to decide whether the former practice of the Securities and Exchange Commission (SEC) of having its chief judge appoint administrative law judges (ALJs) comports with the Appointments Clause of the U.S. Constitution.
On Friday, December 22, 2017, the U.S. Court of Appeals for the District of Columbia Circuit rejected all of American industry’s many challenges to the Occupational Safety and Health Administration’s (OSHA) new silica dust standard, 29 C.F.R. §§ 1910.1053 and 1926.1153—one of the key achievements of OSHA under the Obama administration. The court remanded the standard for OSHA to further explain or reconsider why it did not adopt medical removal protection.
On Monday, October 27, 2017, President Trump nominated Scott Mugno, currently the vice-president for safety at FedEx Ground, to be the new head of the Occupational Safety and Health Administration (OSHA).
The Occupational Safety and Health Administration (OSHA) has announced that it will extend the July 1, 2017 deadline for electronic submission of employers’ injury and illness logs.
On May 3, 2017, the final curtain was rung down on the Volks saga: OSHA revoked its so-called “Volks Rule,” which would have amended the recordkeeping regulations in 29 C.F.R. Part 1904 to, it hoped, avoid the holding of the District of Columbia Circuit in AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).
On April 25, 2017, the Occupational Safety and Health Administration (OSHA) officially rescinded its 2013 letter of interpretation that many viewed as a clear bow to organized labor by the previous administration and that had created the potential to use an OSHA inspection as a union organizing tool.
On Monday, April 3, 2017, President Trump signed a Congressional Review Act resolution, passed by the House on March 1 and by the Senate on March 22, that disapproves of the Occupational Safety and Health Administration’s (OSHA) attempt, by mere amendment of its regulations, to effectively extend the statute of limitations for recordkeeping violations from six months to five and a half years.
An appellate court one level below the Supreme Court of the United States, and highly respected in the field of administrative law, recently held that the Occupational Safety and Health Administration’s (OSHA) interpretation of a statute of limitations is wrong, contrary to its “clear” language, “unreasonable,” productive of “absurd” consequences, and that it would be “madness” for OSHA to attempt to avoid the court’s ruling by amending its regulations. So what does OSHA do? Instead of appealing to the full court of appeals en banc, bringing a test case to another court of appeals, seeking review by the Supreme Court, or asking Congress to amend the statute, OSHA amends its regulations with the aim of achieving the same result that the court condemned as “absurd.”
The Occupational Safety and Health Administration’s (OSHA) Lockout Standard (29 C.F.R. 1910.147) applies today only to “unexpected” startups of machinery. For example, the standard does not apply if alarms give employees such clearly audible and timely warning that any startup would be expected (consider the warnings given at airport baggage carousels). The word “unexpected” also means that the standard would not apply if, for example, a machine were so small and its one switch were so located that any employee servicing it would know of any restart attempt.