The U.S. Occupational Safety and Health Administration (OSHA) has withdrawn from its website—without public explanation—a controversial interpretation of its requirement to report in-patient hospitalizations of employees who contracted work-related cases of COVID-19.
On July 15, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published a new interpretation of the hospitalization reporting requirement of 29 C.F.R. § 1904.39(b)(6), one that states that employers “must report the hospitalization within 24 hours of knowing both that the employee has been hospitalized and that the reason for hospitalization was COVID-19.”
An administrative law judge of the independent Occupational Safety and Health Review Commission held this week that the Occupational Safety and Health Administration (OSHA) had failed to show that a document the agency used to prosecute employers in heat stress cases—the National Weather Service’s heat index chart—has a scientific basis.
On May 27, 2020, the Occupational Safety and Health Administration (OSHA) updated its guidance for employers performing construction work of all types. The agency’s guidance is not a standard or regulation, so it is not legally binding. Nonetheless, construction industry employers may want to consider OSHA’s recommendations when developing and updating their workplace safety and health plans, for two reasons. First, the guidance indicates which measures OSHA might allege are required by the Occupational Safety and Health Act’s General Duty Clause, just as it has done with heat stress, workplace violence, and other hazards for which it has no specific standard. Second, the document may indicate what employees may expect their employers to do as more people get back to work.
The debate has raged for years. Is there a six-foot rule triggering fall protection requirements when an employee is within six feet of an unprotected edge? A construction fall protection standard adopted by the Occupational Safety and Health Administration (OSHA) does not expressly state there is such a six-foot rule, but many employers, industry safety experts, and even some OSHA inspectors have followed one as a rule of thumb.
The U.S. Occupational Safety and Health Administration (OSHA) has issued a series of tips tailored to construction work to help reduce the risk of exposure to the coronavirus.
On April 10, 2020, the federal Occupational Safety and Health Administration (OSHA) issued interim enforcement guidance for recording cases of the novel coronavirus (COVID-19) under the agency’s recordkeeping regulation at 29 C.F.R. § 1904, affecting what employers are required to record in their OSHA 300 logs. The guidance clarifies which cases of COVID-19 are considered “work-related” under 29 C.F.R. § 1904, which means it also affects employer obligations for cases that must be reported to OSHA (e.g., in-patient hospitalizations).
After relaxing enforcement on the use of expired N95 respirators and on their extended use and reuse, late on April 3, 2020, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic. The new guidance supplements, but does not replace, previous guidance.
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).