By Brent I. Clark, James L. Curtis, Patrick D. Joyce, A. Scott Hecker, Daniel R. Birnbaum, Melissa A. Ortega and Taylor Iaculla
Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in San Juan, Puerto Rico. The meeting includes representatives from the U.S. Department of Labor, OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.
Tuesday, March 5
We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico. On Tuesday, March 5, the conference focused on the Mine Safety and Health Act, which included Mine Safety and Health Administration representatives presenting and in attendance. One key development related to two significant MSHA cases that involve arguments that MSHA’s interpretation of the Mine Safety and Health Act is flawed. This comes after recent Supreme Court cases challenging the Chevron doctrine, which affords government agencies’ regulatory interpretations a level of deference when those interpretations are challenged. Overturning the doctrine would empower judges to decide if a regulation is clear and unambiguous, without deferring to the agency’s interpretation of the regulation at issue.
The afternoon session shifted focus, primarily focusing on best practices and procedures for accident investigations, representation issues, the role of company personnel and unions, as well as an employer’s rights during OSHA inspections. The session highlighted the intersectionality that OSHA has with other areas of law, such as labor law, privacy law, and whistleblower rights.
Wednesday, March 6
Today’s session featured Douglas L. Parker, the head of the Occupational Safety and Health Administration, who spoke about the Biden Administration’s priorities and initiatives for the upcoming year, which included encouraging employers to adopt a safety and health focused culture. OSHA will focus on key components, such as: increasing employer participation through alliance programs, focusing on warehouses, addressing fall hazards in both general and construction industries, and silica hazards. Increasing employer participation was a common theme throughout Parker’s commentary, who noted that OSHA does not want employers to pass the “burden” on to employees and expressed renewed interest in prioritizing whistleblower protections and anti-retaliation measures, citing it as an issue of “personal importance.”
The Assistant Secretary also spoke about OSHA’s focus on VPP modernization efforts and its intent to expand the use of safety and health management systems. OSHA will continue to use penalty strategies and expects to see an increase in willful and egregious cases as a result of “focusing on the right employers.” The Assistant Secretary added that the agency will be releasing a new mission statement, which employers can expect to include protecting workers from retaliation.
Seema Nanda, Solicitor of Labor at the U.S. Department of Labor, followed up and noted that the Office of the Solicitor will prioritize retaliation and protecting immigrant workers, developing imminent danger cases, and increasing utilization of 11(b) for repeat offenders. She also noted that the agency will continue to use debt collection initiatives for recidivist employers. The Office of the Solicitor will use all available tools, and Nanda stressed that the agency will look to employ corporate wide settlements and enhanced compliance agreements to effectuate global settlements as appropriate. In the OSHA context, it will also focus on its use of warrants, subpoena power and subpoena enforcement, enhanced abatement, and coordinating with the Department of Justice in regard to civil and criminal penalties. Notably, Nanda expressed that the agency will also increase its collaboration with state plans.
We also heard from Dionne Williams, Deputy Director, Directorate of Enforcement of OSHA, who spoke at length about key enforcement initiatives for 2024, including a focus on national emphasis programs related to heat hazards, those targeting warehouse and distribution center establishments, retail establishments with high injury rates, and silica. Williams discussed the severe violator enforcement program, noting that there have been 1,251 cases in the program since its inception, with almost 250 cases occurring just in the past year. As part of its national emphasis program focused on heat-related hazards, Williams noted that OSHA’s goal is to increase heat inspections by 100% above its baseline average for fiscal years 2017-2021. Further, when the heat index reaches 95 degrees, including both indoor and outdoor locations, OSHA will engage in targeted inspections.
Anticipating the themes and topics covered by Ms. Williams, Seyfarth’s Workplace Safety Team recently presented on and provided their analysis on OSHA enforcement in the upcoming year. That presentation is available here: “Be Prepared: OSHA Enforcement Trends for 2024 and Beyond | Seyfarth Shaw LLP.”
Williams was followed by Peter Vassalo, Counsel for Special Litigation, Division of Occupational Safety Health. Vassalo commented that OSHA is committed to utilizing all the “tools in its toolbox,” including its criminal enforcement mechanisms, by partnering with the Department of Justice and state attorneys general. LaTasha T. Thomas, Senior Counsel to the Solicitor also spoke, commenting generally on the rulemaking process and how the rulemaking process will be unaffected by the upcoming election.
Today’s panels also included discussion on employee participation related to OSHA investigations, in both union and non-union work environments. Specifically, the panel highlighted the Department of Labor’s proposed rule concerning walkaround rights of employees, in which the Department is seeking to expand walkaround rights. The proposal came in response to a Northern District of Texas ruling that determined that OSHA could not permit non-employees to act as employee representatives during OSHA inspections. The proposed rule is currently with the Office of Management and Budget, which is in the final stages of its review.
We will continue to provide updates throughout the week.
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