Legal and regulatory challenges, some of them barely on manufacturers’ radar, are headed straight at those industry professionals and executives responsible for grappling with environmental, health and safety (EHS) issues at their companies.
Some of these developments were discussed recently by Megan E. Baroni an attorney specializing in EHS legal practice at the law firm of Robinson & Cole. Here is a quick rundown of her observations.
When it comes to emerging contaminants responsible for raising regulatory concern and sparking new litigation, if you haven’t heard of per- and polyfluoroalkyl substances (PFAS), you will, according to Baroni. PFAS covers a group of man-made chemicals used for decades in all kinds of products, including firefighting foam, aerospace products, building materials and outdoor apparel, among others.
When they are present, PFAS persist in the environment and in the human body, and preliminary evidence suggests that PFAS can lead to a variety of adverse health effects. Although the Environmental Protection Agency (EPA) has generated health advisories for certain PFAS compounds, these advisories are not enforceable.
Instead, a number of states have been busy developing their own regulatory standards. Some states also are requiring that manufacturers investigate for PFAS compounds at regulated sites, even if there is no evidence that PFAS compounds were used or released at the site. “And, as most people will tell you, if you test for PFAS, you usually find it,” Baroni points out.
PFAS detections are already the subject of lawsuits, and more cases are expected to be filed over the coming year. She notes that so far, the primary targets of these suits have been PFAS manufacturers, but the cast of defendants could soon expand to include manufacturers of products that contain PFAS, landfill operators and property owners, among others.
“PFAS are also becoming a hot due-diligence topic, with increased attention and investigation focused on them in corporate and real estate deals,” Baroni says. “In short, these emerging contaminants will really hit the scene in 2019.”
Defining Water & Toxic Dangers
At the end of 2018, the Trump administration proposed a rule intended to redefine “waters of the United States,” which is the term the government uses to determine the scope of the federal Clean Water Act. The scope of this act creates known impacts on a wide variety of manufacturing activities, ranging from process discharges to site development.
As expected, the proposed rule scales back what qualifies as a water of the United States. If the Trump EPA rule is finalized, Clean Water Act jurisdiction would not be extended to most roadside ditches, ephemeral streams or wetlands that do not have a surface water connection to another body of water that falls under the act.
“This definition would provide clarity for manufacturers grappling with the current reach of the Clean Water Act,” Baroni observes. “However, it will no doubt be subject to intense public comment and litigation from environmental groups that are looking to avoid any actual or perceived jurisdictional rollback.”
Toxic Substances Control Act (TSCA) reform is another EPA priority that is expected to gain importance. Baroni says that with the appointment of Alexandra Dapolito Dunn as chief of the Office of Chemical Safety and Pollution Prevention, EPA is poised to continue rolling out its draft risk evaluations for the 10 substances that it identified and prioritized as toxic and carcinogenic in July 2017.
She believes these risk evaluations will likely be closely scrutinized by both regulated industries and environmental groups for a number of reasons. These include the conditions of use evaluated by EPA, the thoroughness of the risks identified, and, potentially, the public nature of the scientific studies addressing potential risks. “Manufacturers may want to keep an eye towards the TSCA reform process in 2019 to ensure that they have adequate input into this risk evaluation process,” Baroni warns.
When it comes to the Occupational Safety and Health Administration (OSHA), that agency earlier informed Congress that it plans to conduct about 1,500 fewer investigations in Fiscal Year 2019, seeking to achieve a target total of 30,840 workplace inspections. Now that the agency has the electronic illness and injury reporting rule controversy largely behind it—although it continues to deal with litigation challenging those changes—OSHA can fully focus on its compliance and enforcement responsibilities.
While the overall number of inspections might be down, OSHA will emphasize the need for detailed, in-depth inspections in 2019, Baroni says. OSHA intends to focus its inspection efforts on the highest-risk workplaces, conducting complex inspections that will aim at creating the biggest possible safety impact. Employers will find that the agency has embraced new technology to make its thinning resources stretch even further, including the use of drones to inspect large facilities.
OSHA also has revealed plans to balance the use of compliance assistance programs with enforcement tools which the agency says will ensure that “mission-critical field activities are given equal measure when compared to enforcement activity.”
Once thought to have been nearly eradicated, a new epidemic of an even more vicious black lung disease is rampaging through the thinning ranks of coal miners. The slow development of knowledge about the true nature of the illness and confusion over how to prevent it has provoked a new round of finger-pointing by the mineworkers union and other mining industry critics.
It was relatively recently that research uncovered how widespread is the new black lung. It is different from the older disease, which struck miners because of their exposure to coal dust in underground mines. The newer form strikes more quickly and devestates miners’ lungs earlier because the disease they are suffering from is in reality a form of silicosis.
It is believed that the new disease arose after many of the seams of pure coal ran out and operators began mining thinner seams running through rock, primarly sandstone. The mining process involved grinding up rock along with the coal, spreading fine silica dust everywhere, leading to this new form of black lung called progressive massive fibrosis (PMF), which is just as bad as the name sounds.
The results are horrifying, as was depicted in a PBS “Frontline” documentary first broadcast last December, which was a follow-up to a 2016-17 investigation by NPR. An article in the May 2017 issue of Smithsonian Magazine also explored many of the same issues.
PMF is worse than the kind of black lung that arises primarily from exposure to coal dust. The silica particles from the ground-up rock trigger the body’s immune response which, when it cannot neutralize or expel the silica from the lungs, then destroys healthy tissue and forms hard nodules in the upper lungs.
Miners contract PMF younger—in one case the miner was just 29—and they die sooner and in a great deal of pain. While the mine union and other critics blame mine operators and the Mine Safety and Health Administration (MSHA), thorough research into the new form of black lung is only in its early stages.
One reason suggested for why miners have been getting the disease earlier than they contracted black lung before is that because of a decline in the workforce in recent decades, fewer miners are working longer shifts, sometimes reported to be 70 to 80 hours a week.
To make matters worse, anecdotal evidence suggests that conventional coal dust abatement techniques may not be effective in protecting workers when it comes to silica dust generated during underground mining. Research shows the dust generated in recent years is much finer in consistency than it was in the past. This also may alter the mineralogic characteristics of the dust. As a result, it is possible that some of the abatement techniques used to protect miners in the past don’t appear to be effective in preventing PMF.
Some of the techniques used to protect workers from silica dust in above-ground manufacturing and other processes are not practical for use in mines. Miners also have noted that it is impossible for them to wear the assigned masks throughout the entire time they are in the mines because of the way they interfere with breathing.
Also, the fine, powdery nature of the silica-laden coal dust, which coats personal clothing and equipment, means the miners probably are dosing themselves when they are above ground and remove personal protective equipment and clothing.
Numbers Tell the Story
U.S. Department of Labor (DOL) data gathered between 1970 and 2016 found a total of 4,679 cases of PMF among miners. Keep in mind that in the 21 years between 1996 and 2016 a total of 2,374 cases were recorded—more than the 2,205 cases that were found during the 26 years prior to 1996. The increase occurred in spite of the fact that the total number of coal miners employed in the United States decreased by more than two-thirds between 1979 and 2016.
In addition, the PMF trend largely went unnoticed because individual cases found at clinics throughout coal country had not been linked together until recent years.
Following enactment of the 1969 Coal Mine Health and Safety Act, the number of American miners suffering from black lung disease dropped by about 90%, leading many in the industry to believe black lung was on its way to being wiped out. However, the speed of the PMF version’s progress and the eventual gathering of data from clinics across coal country made the scope of the newer disease fully evident.
A report unveiled by the National Institute for Occupational Safety and Health (NIOSH) and other health researchers at a medical conference in mid-2018 showed that 84% of PMF cases reported from 1970 to 2016 were found among miners working in central Appalachia. Of the total cases found, 28.4% of them were found in West Virginia, 20.2% in Kentucky, 20.0% in Pennsylvania and 15.3% in Virginia. The biggest increase in PMF cases by state occurred in Virginia, with an average rise of 31.5% annually over the 46-year study period. The miners and former miners who reported PMF ranged from 27 to 93 years old, with the average age of 61.
However, while there is still a great deal that we don’t know about the disease and its extent, much information has been gathered over the last three years. This is why there have been demands for faster action by the industry and regulators who are waiting for that research to be completed.
Critics argue that MSHA, which like the Occupational Safety and Health Administration (OSHA) is an agency of DOL, has not been doing enough to help miners. In a January phone meeting with stakeholders, MSHA chief David Zatezalo revealed that inspectors have increased dust sampling in the field, and he asserted that overexposure readings have decreased.
“The system has changed and it has increased sampling a lot,” Zatezalo said,.“We sample over twice as much as we used to.” He also cited actions taken under strengethed standards for dust exposure and the introduction of Continuous Personal Dust Monitor (CPDM) equipment that were adopted in 2014. “That CPDM has lowered miners’ exposures and we have proof of that,” he added. What he didn’t mention is that the CPDM equipment is not designed to monitor specifically for dust from silica.
Zatezalo, who is a former mining company executive, also said the number of incidents where samples found the dust standard being exceeded is now one-third or one-fifth of what it was before the 2014 monitoring standards were implemented.
In terms of possible new rules,, MSHA published a Request for Information (RFI) last July to gather comments, data and additional information about its dust regulations. The RFI also seeks information and data on engineering controls and best practices that can lower exposure to respirable coal mine dust. The comment deadline is July 9, 2019.
In June 2018, a National Academies of Sciences panel report sponsored by NIOSH stated that further research and development efforts are needed for better understanding of relationships between miners’ exposures and disease, including studying effects of changes in mining methods, improving monitoring approaches, and increasing participation in medical surveillance programs.
Calls for Action
Last November, the DOL Inspector General’s annual report said MSHA should take action to ensure mine operators comply with its Respirable Coal Dust rule. This includes reviewing the quality of coal mine dust controls in mine ventilation and dust control plans; analyzing sampling data quarterly; and monitoring operator sampling equipment.
The Inspector General added that MSHA needs to re-evaluate the Respirable Coal Dust rule in light of new information and increase testing and enforcement for other airborne contaminants.
Following the PBS/NPR broadcasts, United Mine Workers of America (UMWA) International president Cecil E. Roberts didn’t hesitate to blame mine operators for the new as well as the old black lung epidemics. He said the PBS/NPR documentaries failed to drive home who the real culprits are: the coal companies, he charged, had been breaking the law and ignoring respirable dust standards for the last 30 years.
“The fact that younger miners are getting this disease is especially damning to the industry, because it shows that even in the last decade or less, a large number of coal operators chose to put their employees’ lives at risk simply to be able to mine coal faster,” Roberts argued. “That is criminal, and the perpetrators of this crime should be locked up.”
The National Coalition of Black Lung and Respiratory Disease Clinics reacted to the PBS/NPR broadcasts by stating that MSHA has “more than enough data demonstrating the risks associated with current mining practices to implement new measures.” Specifically, the coalition asks regulators to enact a standard to control the dust generated when mining equipment cuts into rock containing silica.
Roberts also pointed out in his December 2018 statement that the contributions mining companies make to the Black Lung Disability Trust Fund were to be cut by more than half at the end of 2018, which took place. “This will cause the deficit in that fund to skyrocket, sticking taxpayers with a bill that the companies should continue to be responsible for,” Roberts observed.
The Black Lung Disability Trust Fund was established by Congress in 1977 to help out afflicted miners with benefits of between $650 to $1,300 per month when their former employers are bankrupt or are otherwise unable to pay.
In 1986 mine operators were assessed a $1.10-per-ton tax on coal from underground mines and 55 cents-per-ton for coal from surface mines. The fees were never enough to meet all the needs, and taxpayer money was used to make up the difference. Congress forgave $6.5 billion of the fund’s debt in 2008, and enacted a sunset provision that dropped the coal tax rates by half at the end of 2018, apprently because of the widespread belief that black lung was on its way to being eradicated. As a result of the new wave of claims, the fund’s debt has climbed to $4.3 billion.
“No coal company has gone out of business because it pays an extra 55 cents in contributions on every ton of coal it mines to that fund,” Roberts added in December. “It is clear that the need for this fund will be long-lasting as younger miners are afflicted with black lung because their employers chose to not follow the law. Now is not the time to cut back on coal company contributions to this fund.”
In March 2018, a bipartisan coalition of members of Congress spearheaded legislation that increased funding for 28 black lung clinics in 15 coal mining states from $2.7 million to $10 million.
Following the PBS/NPR broadcasts, Rep. Bobby Scott (D-VA), who is now chairman of the House Education and Labor Committee, announced that he intends to schedule congressional hearings focusing on the new black lung and the charges of regulatory failures.
“Congress has no choice but to step in and direct MSHA and the mining industry to take timely action,” Scott declared. He added that the hearings should create a foundation “to forge legislative solutions so that we can prevent the physical, emotional and financial toll of this completely preventable disease.”
Ever since the U.S. Occupational Health and Safety Administration (OSHA) began enforcing its respirable crystalline silica standard for general industry in June 2018, employers have had questions about it. On Jan. 23, OSHA published a list of Frequently Asked Questions (FAQs) and answers developed in consultation with industry and union stakeholders.
“The FAQs provide important interpretations of several of the provisions in the rule and provide employers with additional flexibility for compliance,” observes attorney Bradford T. Hammock of the law firm of Littler Mendelson, who provided a summary of some of the most important questions and answers provided by OSHA.
The silica standard establishes a permissible exposure limit (PEL) of 50 μg/m3 as an eight-hour time-weighted average (TWA), and an action level of 25 μg/m3, calculated as an eight-hour TWA. Employers must ensure that employees are not exposed to respirable crystalline silica (RCS) above the PEL.
Employers must perform exposure assessments of each employee who is or may reasonably be expected to be exposed to RCS at or above the action level, and provide medical surveillance for employees who are exposed to RCS at or above the action level for 30 or more days per year. Employers also must establish regulated areas and provide respiratory protection, housekeeping, training, hazard communication and medical surveillance.
The silica standard does not apply to agricultural operators, exposures that result from the processing of sorptive clays, or construction work. OSHA published separate FAQs for the construction industry in August 2018.
The standard also does not apply to employers who have objective data demonstrating that employee exposure will remain below the action level under foreseeable conditions, Hammock points out.
OSHA considers the failure of most controls to be a foreseeable condition and thus employers should consider this when making their assessments. However, OSHA states that failure of some types of controls (e.g., substitution of non-silica-containing materials, fixed walls) is not possible or so improbable that it is not a foreseeable condition, and therefore employers need not account for the potential failure of such controls when determining coverage.
In determining whether the standard applies, employers also don’t need to disable, remove or otherwise account for the potential failure of measures that may contribute in a limited way to reducing silica exposures but which are not adopted for that specific purpose, such as general building ventilation or HVAC systems.
Clarifying Exposure Prevention
Employers must ensure no employee is exposed to an airborne concentration of silica in excess of the PEL. Employers must assess the exposure of each employee who is exposed to respirable crystalline silica at or above the Action Level (AL) using either a performance option or a scheduled monitoring option. This includes the option of switching from the scheduled monitoring option to the performance option, and can make use of air monitoring data generated during scheduled monitoring to fulfill the performance option assessment requirements.
The term “objective data” means information demonstrating employee exposure to silica associated with a particular product or material or a specific process, task or activity. Data that may qualify include industry-wide surveys; information from equipment manufacturers or trade associations; exposure mapping; calculations based on substance composition or chemical and physical properties; and historical air monitoring data.
Employers don’t have to sample every employee if using the scheduled monitoring option. Where several employees perform the same tasks on the same shift and in the same work area, employers may sample a representative fraction of these employees, OSHA says. Although employers are not banned from requiring employees to wear personal samplers as a condition of employment under the standard, other laws, regulations or collective bargaining agreements may apply.
Employers must demarcate regulated areas from the rest of the workplace and post signs with a specified legend at all entrances to those areas. Access to regulated areas must be limited and require the use of a respirator for each person who enters it. A regulated area does not need to be demarcated if the employer enforces work rules limiting employees’ time in it so there is no reasonable expectation that their eight-hour TWA exposures will exceed the PEL.
When it comes to intermittent activity, employers don’t have to create a regulated area on days when employee exposures are not reasonably expected to exceed the PEL. In such cases, OSHA says employers may demarcate the regulated area on just a temporary basis.
Administrative controls are an acceptable means of reducing employee exposures. An employer could reduce an employee’s exposures by scheduling high-exposure tasks to be conducted when that employee is not working in an adjacent area. Rotation of employees to limit employee exposures also is not prohibited.
Tasks that are not covered by the standard—such as when the employer has objective data demonstrating that employee exposures will remain below the AL—do not need to be included in the written exposure control plan required under the standard.
Employers also are allowed to develop a single comprehensive plan for each worksite that includes all of the silica-generating tasks that employees will perform at the worksite. In other words, they don’t need separate exposure control plans for different operations.
If an employer has objective data demonstrating that employee exposure will remain below the AL under any foreseeable conditions, the prohibition on dry sweeping, dry brushing and the use of compressed air for cleaning clothing and surfaces does not apply.
The standard does not require employers to demonstrate that wet methods, a HEPA-filtered vacuum, or other methods are impossible to use in order to establish “infeasibility,” OSHA notes. Infeasibility exceptions encompass situations where wet methods, HEPA-filtered vacuuming and other exposure-minimizing methods are not effective, would cause damage or would create a hazard in the workplace.
This information, of course, represents just a portion of the clarifications offered by OSHA in its FAQs. Other topics covered include hazard communication, recordkeeping, temporary employees and more. The full silica FAQs are available on the agency’s website.
The latest step in an ongoing regulatory saga, on Jan. 25, the Occupational Safety and Health Administration (OSHA) published its final rule reducing the negative impact of employer electronic injury and illness recordkeeping rules originally adopted by the Obama-era agency.
The final rules eliminate the earlier requirement for employers to electronically submit Forms 300 and 301. The rule still requires employer establishments with 250 or more employees and with 20 to 249 employees in certain designated industries to electronically submit Form 300A annually.
The deadline for employers to file their reports covering 2018 injury data is March 2. One of the major reasons OSHA cited for the change was the need to preserve worker privacy. Nothing in the final rules revokes an employer’s duty to maintain OSHA Forms 300 and 301 onsite for future OSHA inspection.
Employers also were obligated to post the 300A illness and injury form in workplaces by Feb. 1. That form is not filed with the agency, but penalties can accrue if it is not posted in worksites until April 30, and a copy must be retained for five years.
The agency had proposed making changes to the electronic reporting rules in July of last year.
The Trump OSHA was responding to sweeping changes made in 2016 by the Obama-era agency, when it was proposed that OSHA 300 logs and 301 forms would be published on OSHA’s website, but with employee names and some of their other personal information redacted.
However, employers objected that the public reports would include sensitive information about medical treatment, the nature of the injury or illness, a description of how the injury occurred and other personal data that would make it easy to identify the employee involved. In addition, the 2016 rule called for publishing employer information on the Internet for all to see consistent with agency’s policy at that time of using all opportunities for publicly “shaming” companies.
Employers also viewed the Obama-era rules as a generous gift to union organizers and tort lawyers to help them locate additional targets in the private sector.
The AFL–CIO and other unions were not happy with OSHA’s proposal to reverse the Obama-era changes and they asked the Administration to withdraw the newest version of the rules, which the Obama White House declined to do. It is expected that the unions will mount legal challenges against the new rules now that they have been finalized.
The States and the Future
Several states that operate their own OSHA programs delayed adopting the earlier electronic recordkeeping rules due to the uncertainty surrounding the changes. Federal OSHA told employers in these state plans to submit 300A data in spite of not being subject to the rule or federal OSHA’s jurisdiction. Last April, federal OSHA announced that employers in all state plan states must implement the electronic recordkeeping rules. By the end of 2018, only three states had failed to adopt the rules: Maryland, Washington and Wyoming.
As usual, California is different. Last year the state legislature adopted a new state law requiring Cal/OSHA to monitor the federal rulemaking and its implementation of the electronic recordkeeping rule. If Cal/OSHA determines that OSHA has “eliminated” or “substantially diminished” the requirements for employers to submit injury and illness data, the state agency will evaluate how to go about implementing changes it believes are necessary to protect those goals.
Another new California law seeks to undo an OSHA policy by changing the statute of limitations for citations or violations involving recordkeeping requirements from six months after a violation occurs to either the date that the violation was corrected or the date the injury is discovered.
Some on the employer side of the issue don’t believe the new rules went far enough. Eric J. Conn and Daniel C. Deacon of the law firm of Conn Maciel Carey LLP argue that the scope of the change is much too small and fails to address most of industry’s concerns.
“Remember that only workplaces with 250+ employees were ever going to have to submit 300 and 301 level data,” they note. “By eliminating that one requirement on that one subset of workplaces affects the tiniest percentage of workplaces. Every employer that was required to submit injury data yesterday, is still required to submit injury data now, and most employers that were covered by this rule will be submitting the exact same data they were already required to submit.”
Conn and Deacon say OSHA should still add provisions to prevent the data that is collected from being published, or at least not published along with employer-identifying information, which is how OSHA’s sister Labor Department agency, the Bureau of Labor Statistics, has handled the injury data it has collected for decades.
They also urge OSHA to modify the size threshold from workplaces with 25 employees to 100 employees, which would unburden the really small employers currently affected by this rule. Modifying the definition of “high hazard industry” that swept thousands of small employers into the rule should be changed as well, the attorneys say.
“Right now, the threshold average Days Away Restricted or Transferred (DART) rate that makes an industry ‘high hazard’ and therefore covered by the data submission requirements is essentially exactly average. If OSHA recalibrates the definition of high hazard industry to where it has always been under the Site-Specific Targeting (SST) program, a great burden would be lifted from many small employers.”
Because these and other changes were not included in the most recent rulemaking, court challenges mounted earlier that were halted to sllow for OSHA’s reconsideration of the rule will almost certainly be re-activated. This possibly could create an opportunity for the agency to address these issues in the future, Conn and. Deacon say.
The penalties levied against employers for safety violations by the Occupational Safety and Health Administration (OSHA) have gone up, effective Jan. 24. The increases only apply to citations issued after that date and for the remainder of 2019.
The 2019 penalties are:
· Other than Serious violations, $13,260 (up from $12,675 in 2018);
· Serious violations, $13,260 (up from $12,675);
· Repeat violations: $132,598, (up from $126,749);
· Willful violations, $132,598 (up from $126,749);
· Failure to abate (per day), $13,260 (up from $12,675 last year).
The penalty increasse apply to federal OSHA states. Nonetheless, OSHA expects that the 26 states operating their own occupational safety and health programs will align penalty structures with federal OSHA so that such programs are equally effective.
“While this is OSHA’s expectation there has been little adjustment from various state plans to align with the increase in penalties,” notes Tressi L. Cordaro, an attorney with the law firm of Jackson Lewis PC. “For example, North Carolina and Kentucky still maintain a $7,000 maximum fine for serious violations and $70,000 for willful or repeats.”
In the future, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.
The deadline for employers to prepare, certify and post a hard copy of their 300A annual summary of injuries and illnesses report in their workplaces for employees to see is Feb. 1—unless your business is excluded because you have fewer than 10 employees or are on a list of low-hazard industries, such as dental offices, advertising services and car dealers.
These are hard copy reports meant to be posted in the workplace for employees to see. Employers in certain other industries must electronically file their reports for 2018 with the Occupational Safety and Health Administration (OSHA) no later than March 2.
Also, keep in mind that because of an agreement reached between Congress and President Trump last September, OSHA and all other agencies operating under the umbrella of the Department of Labor continue to function under the partial government shutdown.
The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the OSHA 300 Log. By Feb. 1 employers must review their OSHA 300 Logs, verify the entries on the 300 Log are complete and accurate, and correct any deficiencies discovered.
The employer then must use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form, and certify the accuracy of the 300 Log and the 300A Summary Form.
With the many changes made in the reporting process over recent years, employers need to avoid making some of the most common mistakes, according to attorneys Lindsay DiSalvo, Daniel Deacon and Eric Conn of the law firm of Conn Maciel Carey LLP. “We frequently see employers make mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary.”
Some regularly made mistakes include
● Not having a management representative with high enough status within the company “certify” the 300A.
● Not posting a 300A for years in which there were no recordable injuries.
● Not maintaining a copy of the certified version of the 300A form.
● Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries previously recorded.
● Confusing the requirement to Post a 300A in the workplace with the requirement to electronically submit 300A data to OSHA’s web portal.
How to Do It Right
“A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a ‘company executive,’” the lawyers note. This is defined as an owner of the company, a corporate officer, the highest-ranking company official working at the workplace, or the immediate supervisor of the highest-ranking company official at that location.
After certifying the 300A, OSHA’s regulations require the certified copy of the 300A Summary Form be posted in the workplace for three months, through April 30. The attorneys point out that many employers fail to prepare or post a 300A Form in years when there were no recordable injuries or illnesses.
“Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same,” warn the Conn Maciel Carey lawyers.
After April 30, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of the underlying OSHA 300 Log, the certified 300A Annual Summary Form and any corresponding 301 Incident Report forms.
Another common mistake made by employers is to keep only the electronic version of the 300A, and not the version that was printed, “certified” typically by a handwritten signature and posted at the facility. “Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified,” the attorneys observe.
Another thing employers want to avoid is putting away old 300 Logs and never looking back, even if new information comes to light about injuries recorded on those logs. However, OSHA’s recordkeeping regulations require employers during the five-year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details.
This requirement applies only to the 300 Logs and as a result technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.
One of the hottest controversies polarizing the public debate in recent years is gun control, and the topic of guns in the workplace and public businesses continues to be a front-burner issue.
The most prevalent of these are the “parking lot” laws that allow employees to keep guns in their vehicles parked at the plant or office building where they work. Today 26 states have adopted such laws, although specifics of the laws vary from state to state following a string of high-profile cases where employees were fired after guns were found in their parked cars.
“The thought that someone at your workplace may be armed can be startling, but you should be careful to avoid implementing policies that violate state laws protecting the rights of gun owners,” warns attorney Andrew Rogers of the law firm of Littler Mendelson in his written essay answering a query put to him by an employer in Tennessee.
Tennessee’s parking lot law offers a useful example. It prevents employers from prohibiting any individual with a handgun carry permit recognized by the state to store a firearm and ammunition in his or her car parked on the employer’s property, subject to certain conditions.
The vehicle must be parked where it is allowed to be. While the permit holder is in the vehicle, any firearm or ammunition must be “kept from ordinary observation.” When the permit holder is not in the parked car or truck, the firearm or ammunition must be secured in the locked vehicle—in the trunk, glove box or a container attached to the vehicle.
As long as employees are able to satisfy these requirements, an employer in Tennessee cannot lawfully prevent them from storing a handgun in their cars. If you have operations in several states, you should research and review the parking lot laws that may apply to those locations, Rogers recommends.
Other states have imposed conditions similar to those required by Tennessee, but a few are less restrictive. Many states’ parking lot laws do not require employees to have licenses or permits for the guns they are storing in their vehicles.
Almost all of the states with parking lot laws explicitly allow an employer to prohibit firearms in a company-provided vehicle. In fact, no state specifically allows employees to store firearms in company vehicles. In addition, there are a myriad of other exceptions unique to different states, Rogers notes. In Georgia and Arizona, any parking lot owned by a U.S. Department of Defense contractor is exempt from their parking lot laws.
Parking Lot Restrictions Vary
Several states have imposed additional restrictions as well. Georgia also exempts certain entities from the state parking lot law, including jails, electric utilities and any employer with a parking lot next to facilities providing natural gas, liquid petroleum, water storage and vital law enforcement services.
Utah and Florida maintain similar exemptions for school premises, religious organizations, government entities and single-family homes. Similarly, in Utah, Arizona and Louisiana, if employees are provided an alternative parking lot at no additional charge for vehicles with weapons, or a secure storage location where employees can store their firearms prior to taking a vehicle into the secured parking area, then an employer may be able to prohibit the storage of firearms in one of their parking lots.
Keep in mind that nearly half of the states have not enacted laws to address this issue. If you operate out of Connecticut, New Mexico, North Carolina or Virginia, for example, an employer can restrict the presence of firearms in company parking lots. In other states, such as Colorado, the law is less clear.
Employees are not entitled by statute to secure firearms in their vehicles in these states, and employers and property owners retain broad authority to prohibit the practice. However, in the absence of a policy clarifying the employer’s position on the possession of firearms and ammunition, employees may be allowed to carry firearms if they are in accordance with federal and state law.
As a result, if an employer wishes to impose any restrictions, it would be important to develop a policy addressing the possession of weapons, including firearms, on its premises, Rogers says. The employer also has much firmer ground to stand on in the case of keeping guns out of the workplace even in situations where they are allowed in parking lots.
“State legislatures have overwhelmingly determined that employers should be allowed to restrict firearms in the workplace, consistent with the traditional property rights,” Rogers points out. While property owners are generally presumed to be able to exclude individuals from their property, 24 states have passed laws explicitly allowing employers to prohibit firearms on their premises.
In Tennessee, for example, an individual, corporation or business entity is allowed to prohibit the possession of weapons by employees at a workplace. To take advantage of this law, employers must post notice of the ban to all affected employees. Some states, like Nebraska and Minnesota, require that the employer personally request that someone carrying a gun on their property remove it from the premises.
Many states require that employers post proper signage if they prohibit firearms on private property. In Tennessee, the property owner must display a notice stating, “NO FIREARMS ALLOWED” along with a specific pictorial representation of the phrase, both of which must be rendered in a specific size.
The sign must be posted in prominent locations, including all entrances primarily used by people entering the property, and must be plainly visible to the average person. Some states are not as strict as Tennessee in their signage requirements. Missouri requires only that the sign be no smaller than 11 by 14 inches, and the writing not be less than one inch. Even less strict are North Carolina and New Mexico where, while signage can be used to prohibit firearms on private property, there are no requirements relating to the contents or design of the signs.
Rights and Risks
“Employers should also be aware that certain states treat firearm ownership as a pseudo-protected class,” Rogers asserts. In Indiana, an employer cannot require a job applicant to disclose firearm ownership, and cannot condition employment on limiting the employee’s rights, including the right to store a gun in a locked vehicle.
In Georgia and Florida, employers cannot condition employment on an employee’s agreement to forego bringing firearms into the employer’s parking lot. North Dakota also prohibits employers from discriminating against an employee for bringing a firearm onto the premises if the firearm is never displayed for a purpose other than defense.
Gun control opponents point out that in many cases in the recent past where active shooters have been firing on employees and schoolchildren in educational facilities, the shooters have been stopped by an employee on premises with a gun.
However, Rogers also warns that employer liability stemming from their workers’ possession of firearms remains a valid concern in many cases. Fewer than half of the states with parking lot laws have provisions protecting employers from liability for injuries caused by firearms in the employer’s parking lot.
Tennessee says employers are not liable for any harm or injury that occurs because someone stored a handgun in a locked car. “Thus, in Tennessee, an employer would have a defense against liability if a stranger trespassed into an employer’s parking lot, stole a gun stored in an employee’s car, and injured someone with that weapon,” Rogers explains.
Only a handful of states address a related question: If an employer chooses not to restrict firearms at their facilities or parking areas when it could lawfully have done so, should it be liable for injuries resulting from a firearm in its workplace?
Once again, Tennessee is among the states that have a law answering this question, according to Rogers. State law exempts employers from liability for any damage related to gun use on their premises, even in instances where employers failed to implement a policy prohibiting weapons on their property.
For example, if an employer allowed its employees to conceal and carry guns in the workplace and an employee injures someone, the employer isn’t likely to be held liable for not prohibiting the firearm on its premises. Similarly, Kansas and Ohio have laws protecting private employers from liability if they do not prohibit firearms on their property. Ohio and Tennessee only protect against civil liability.
The political controversy over gun control in all of its aspects is not going away. Employers need to arm themselves with knowledge of the laws in their states before taking actions to restrict their use on premises and if employees park on company-owned property.
As of Jan. 1, the Equal Employment Opportunity Commission (EEOC) has removed its former regulations that permitted employers to offer incentives to employees for their participation in wellness programs.
In 2016, the commission issued regulations relating to wellness programs and how participation could be considered “voluntary” for purposes of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. One requirement limited incentives under the wellness program to 30% of the cost of health coverage for them to qualify as a “voluntary” employee health program.
Although the ADA and GINA Wellness Program Rules faced a number of court challenges, a lawsuit brought by the AARP argued that EEOC had failed to demonstrate how offering employees discounts of up to 30% of their health coverage (which meant imposing penalties of up to 30% for nonparticipation) would still allow the wellness programs to truly be considered voluntary for employees.
In late 2017, the U.S. District Court for the District of Columbia agreed with AARP and ruled that the rules regarding the 30% incentive would be vacated effective Jan. 1, 2019. However, the EEOC waited until last November for moving to rescind the vacated incentive rules. That may seem to be the end of the story for employers, but it’s not.
“In doing so, the EEOC left employers back in the quandary they were in before,” says attorney Patricia Anderson Pryor of the law firm Jackson Lewis. “Neither the law, nor the remaining regulations, expressly prohibit (or permit) incentives.”
The remaining regulations provide that an employee health program including disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity:
● Does not require employees to participate.
● Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation or limit the extent of benefits for employees who do not participate.
● Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees.
● Provides employees with a notice that is understandable by the employee, describes the medical information gathered and how it will be used, including how its dissemination will be restricted.
Does offering an incentive—any incentive—violate these rules? “Only time will tell,” Pryor notes. EEOC earlier announced plans to issue new regulations by this June. In addition, the courts had only just begun analyzing this issue when the earlier regulations were issued. “In the meantime, every employer’s 2019 New Year’s resolution may need to include reviewing their wellness programs with counsel.” Or just forego having such incentives at all.
There were a total of 5,147 fatal work injuries recorded in the United States in 2017, down slightly from the 5,190 that were registered in 2016, according to the annual report issued by the U.S. Bureau of Labor Statistics. That is still up substantially from the previous 14-year low of 4,551 in 2009.
BLS also reports that the fatal injury rate decreased to 3.5 per 100,000 full-time equivalent (FTE) workers from 3.6 in 2016. A total of 27 states had fewer injuries in 2017 than 2016, while 21 states and the District of Columbia had more; California and Maine had the same number as 2016. A total of 192 metropolitan statistical areas (MSAs) had five or more fatal work injuries in 2017.
The bureau reported that recordable injuries and illnesses in the private sector continued their 14-year slide in 2017. Employers had 2.8 total recordable cases per 100 workers, barely half the number reported in 2003, BLS notes.
The transportation and material moving occupations, and construction and extraction occupation groups accounted for 47% of worker deaths in 2017. Transportation incidents remained the most frequent fatal event in 2017, accounting for 2,077 (40%) occupational fatalities, only down by six from 2016.
Within the occupational subgroup driver/sales workers and truck drivers, heavy and tractor-trailer truck drivers had the largest number of fatal occupational injuries with 840. This represented the highest value for heavy and tractor-trailer truck drivers since the occupational series began in 2003, the bureau notes.
On the other hand, fatal occupational injuries in the private manufacturing industry and wholesale trade industry were the lowest since this series began in 2003.
Looking at the causes of deaths, BLS says fatal falls were at their highest level in the 26-year history of the Census of Fatal Occupational Injuries (CFOI), accounting for 887 (17%) worker deaths. Violence and other injuries by persons or animals decreased 7% in 2017 with homicides and suicides decreasing by 8% and 5%, respectively.
Unintentional overdoses due to nonmedical use of drugs or alcohol while at work increased 25% from 217 in 2016 to 272 in 2017. This was the fifth consecutive year in which unintentional workplace overdose deaths have increased by at least 25%, the bureau points out.
Contact with objects and equipment incidents were down 9% (695 in 2017 from 761 in 2016) with caught in running equipment or machinery deaths down 26% (76 in 2017 from 103 in 2016). In addition, fatal occupational injuries involving confined spaces rose 15% to 166 in 2017 from 144 in 2016. Crane-related workplace fatalities fell to their lowest level ever recorded with 33 deaths in 2017.
BLS also says 2,989 of the total 5,147 fatal injuries in 2017 were incurred by workers over the age of 44, almost the same as the previous year’s 2,993. In addition, 15% of the fatally-injured workers in 2017 were age 65 or over – a series high. In 1992, the first year CFOI published national data, that figure was 8%. These workers also had a higher fatality rate than other age groups in 2017.
Looking at the different ethnic groups, fatalities incurred by non-Hispanic Black or African-American workers and non-Hispanic Asian workers each decreased 10% from 2016 to 2017.
In term of industry sectors, BLS reports that workplace fatalities in the private mining, quarrying, and oil and gas extraction industry increased 26% to 112 in 2017, up from a series low of 89 in 2016. Over 70% of these fatalities were incurred by workers in the oil and gas extraction industries.
Fishers and related fishing workers and logging workers had the highest published rates of fatal injury in 2017. There were 258 fatalities among farmers, ranchers and other agricultural managers in 2017. About 63% of these farmers were age 65 and over (162) with 48 being age 80 or over. Of the 258 deaths, 103 involved a farm tractor.
Grounds maintenance workers (including first-line supervisors) incurred 244 fatalities in 2017. This was a small decrease from the 2016 figure (247) but was still the second-highest total since 2003. A total of 36 deaths were due to falls from trees, and another 35 were due to being struck by a falling tree or branch.
In what we can hope is a good sign, police and sheriff’s patrol officers also experienced a decrease in 2017, incurring a total of 95 fatal occupational injuries in 2017, fewer than the 108 fatalities in 2016.
Although many employers may not be aware of it, the Occupational Safety and Health Administration (OSHA) is now using drones to conduct safety inspections of employer facilities—but only if the employer consents.
During 2018, OSHA reportedly used drones with cameras to conduct at least nine inspections of employer facilities after obtaining permission from the companies’ management. The drones were most frequently deployed following accidents at worksites that were considered too dangerous for OSHA inspectors to enter, including an oil drilling rig fire, a building collapse, a combustible dust blast, an accident on a television tower and a chemical plant explosion.
Early in 2018, OSHA issued a memo to its staff formalizing its use of drones for inspection activities, ordering each of the agency’s 10 regions to designate a staff member as an unmanned aircraft program manager to oversee training requirements and evaluate reports submitted by drone teams.
The memo sets forth the parameters OSHA must follow when using drones, including the fact that the employer must agree to their use. It also reveals that OSHA is exploring the option of obtaining a Blanket Public Certificate of Waiver or Authorization (COA) from the Federal Aviation Administration (FAA) to operate drones nationwide.
Because employers must grant the agency permission for it to conduct the flyovers of their facilities, their expanding use puts employers in an uncomfortable position, some attorneys note, observing that OSHA’s use of drones has the potential to expand its violation-finding capabilities during any inspection.
Drones quickly provide OSHA inspectors a detailed view of a facility, expanding the areas that can be easily viewed by an inspector, and significantly slashing the amount of time required for such an inspection if it was conducted on the ground, notes Megan Baroni, an attorney with the law firm of Robinson & Cole.
While most inspections can and should be limited in scope, the fact remains that OSHA can cite employers for violations that are in plain sight, she points out. “Employers must consent to the drone use, but the question remains as to how the scope of an investigation might change if an employer refuses.”
Baroni explains that it is unclear at this point whether the agency’s policy requiring employer permission will survive if OSHA is granted the Blanket Public COA it’s seeking from the FAA to use the drones anywhere in the country.
She stresses that employers should be aware of this policy and the fact that drones could be a requested part of a future OSHA inspection. “Employers may want to give some thought to their facilities and whether drones can be safely flown without causing damage to equipment or processes,” she says. If an employer allows OSHA to use drones during an inspection, she recommends they consider getting involved from the outset in the development of the flight plan and attempt to get copies of any data that is collected.
Drone Use Will Increase
John S. Ho, an attorney with the law firm of Cozen O'Connor, also believes the use of drones in OSHA inspections is likely to increase, and he believes that raises some novel issues that need to be considered by employers.
“Until some of these issues become more fully developed and depending, of course, on the specific facts, drones may present a situation where the employer might consider going against conventional thinking and err on the side of withholding consent,” he advises.
It is well-settled that an employer can generally require OSHA to obtain an inspection warrant before entering the worksite, Ho explains. Although determining whether to do this is always a fact-sensitive analysis, he says conventional thinking suggests that the better course is usually to define the scope of the inspection with the OSHA inspector as opposed to requiring a warrant.
Conventional strategy in responding to an OSHA inspection also includes the practice of the authorized employer representative accompanying the inspector, essentially mimicking the investigation This includes taking the same pictures, measurements and other actions so the employer essentially possesses the same data as the inspector gathered during the walkaround. When a drone is used it becomes extremely difficult to accomplish.
If the employer decides to acquiesce to OSHA’s request, Ho’s recommendation coincides with Baroni’s advice, saying if the employer considers reaching an agreement with OSHA, it should include the specific flight plan to be used, agreeing that all photographs will be promptly shared and have the authorized representative observe the drone’s operation.
However, Ho warns that even if the scope of the inspection is defined, citations generally still can be issued targeting recognized hazards whenever they are found “in plain sight.” He also says it seems likely a drone equipped with a camera might capture more hazards in “plain” sight than a traditional walkaround where the inspector is usually directed to the site of an accident by the most direct route.
In addition, there is a danger that a company’s trade secrets may be exposed to the OSHA drone images. He urges employers make sure this issue is addressed and answered by OSHA before giving consent for drones in their facility.
The bottom line is that OSHA’s use of drones is not going away and is likely to expand from worksites that are considered too dangerous for physically examinations by inspectors, to greater use in more routine facilities’ reviews. In facing that possibility, it is the employers’ job to make sure they are ready when that day comes.