Coronavirus Watch: What Are Employers’ Legal Responsibilities for the Safety of an Employee’s Home Workplace?

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.

No Good Deed Goes Unpunished: D.C. Circuit Holds Employer That Failed to Implement Its Own Safety Program Violated the General Duty Clause

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.

Supreme Court Generally Disapproves of a Discovery-Rule Exception to Federal Statutes of Limitations

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.

More Trouble for Chevron Deference

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.”

Process Safety Management, Union Style

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.

D.C. Circuit Rejects All Industry Challenges to OSHA’s New Silica Standards

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.

OSHA Withdraws Union Representative Walk-Around Letter of Interpretation

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.

Lawlessness Quashed, Part II: President and Congress Stop OSHA’s Attempt to Avoid the Volks Decision

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.

Quashing Lawlessness: Congress Votes on OSHA’s Attempt to Avoid the Volks Decision

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.”

OSHA Proposes to Apply Its Lockout Standard to Expected Startups

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.