United States: Final Update From The 2019 ABA Occupational Safety And Health Law Committee Midwinter Meeting

Seyfarth Synopsis: Seyfarth Shaw's OSHA/MSHA group is at the ABA's Occupational Safety and Health Law Committee Midwinter Meeting this week. On our last day, we heard remarks from a panel of ALJs who discussed the discovery process and trial best practices, a panel on safety programs in the 21st Century, and, a panel on updates on the construction industry.

We are attending the ABA Occupational Safety and Health Law Meeting this week in San Juan, Puerto Rico. Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor's Office. Today is the last day of the meeting.

To open the final day, a panel consisting of the Honorable ALJs Phillips, Joys, and Augustine provided tips and tricks regarding pre-trial, trial, and post-trial conduct. Especially relevant was Judge Phillips' discussion of discovery best practices and recent ALJ discovery orders, including orders sanctioning parties for using boilerplate objections in their answers to discovery requests. Judge Augustine discussed effective trial techniques that will provide the Judge with the best picture of the facts of the case. Judge Augustine also indicated that effective cross examination and thoughtful use of information learned during depositions have the highest impact in his courtroom. Judge Joys provided helpful tips regarding opening statements and effective written submissions, including pre- and post-trial briefing and proper citation to previous ALJ decisions. All ALJs discussed the effectiveness of motions in limine and other pretrial motions.

The next panel discussed three significant recent decisions from the OSH Review commission that do not involve the general duty clause: Hensel Phelps Construction, Mar-Jac Poultry, and Triumph Construction. Panelists included representatives from OSHA, management, and health and safety non-profits. Hensel Phelps, a 5th Circuit decision issued in November 2018, overturned an OSH Review Commission decision regarding application of OSHA's "multi-employer worksite" doctrine, which had relied upon a long-standing 1981 5th Circuit decision, Melerine v. Avondale Shipyards, limiting OSH Act liability to "an employer's own employees." Ultimately, the Court vacated Melerine, resulting in application of the multi-employer worksite doctrine in 5th Circuit jurisdictions. The panel had widely varying views as to the overall impact of the Hensel Phelps decision, but there was consensus that this decision now brought the 5th Circuit in line with other Circuits that have addressed the multi-employer worksite doctrine.

Mar-Jac Poultry, an unpublished case decided in the 11th Circuit, places limitations on OSHA's ability to expand its inspections beyond the initial reason for conducting the inspection. Notably, the Court differentiated between a "hazard" and a "violation," stating that the existence of a hazard does not establish the requisite probable cause of a violation necessary to obtain an administrative warrant that would allow OSHA to expand its inspection. Again, the panel was divided as to the ultimate impact of the decision, with management applauding the decision's discussion that the existence of an injury or hazard does not necessarily mean there is an associated violation of the OSH Act.

Triumph Construction, a February 2018 2nd Circuit decision, implicates OSHA's ability to issue "repeat" violations to employers and the amount of time of the repeat "look-back" period. Triumph had been cited for a repeat violation based upon a citation that had become a final order approximately five years prior. At the time of the underlying citation in 2014, the 2009 version of OSHA's Field Operations Manual ("FOM") was still effective, and provided for a 3-year look-back period for repeat citations. Triumph argued that the 3-year look-back period in the 2009 FOM was the limit and OSHA's use of a 5-year look-back period was unfair. Ultimately, the Court found that the OSH Act does not contain time limits on how far OSHA can look back to establish a repeat violation and also that the FOM does not create legal rights or duties. The panel agreed that the impact of this decision is limited and fact-specific and simply applies the OSH Act as written.

Finally, the panel discussed several current cases that are expected to have a significant impact on recordkeeping, reporting, and agency deference. Several cases challenging OSHA's 2016 recordkeeping e-reporting rule are expected to be decided in 2019, including a case out of the Northern District of Texas and one out of the Western District of Oklahoma. In addition, several current cases challenge OSHA's decision to remove the requirement for employers to e-file their OSHA 300 Logs and 301, therefore limiting e-filings for all employers with greater than 20 employees to the OSHA 300A yearly summary. The panel also discussed the United States Supreme Court's grant of certiorari in Kisor v. Wilkie, which raises as its sole issue whether the Court should overturn the concept of "Auer" deference, which provides deference to an agency's informal interpretation of its own regulation. Many on the panel believed that the Court will in fact overturn or significantly limit Auer due to Justices Gorsuch and Kavanaugh having previously indicated a desire to remove or limit deference to agency interpretations.

Next, a panel discussed 21st Century updates to traditional health and safety programs. The panel consisted of representatives from industry, safety consulting, labor, and OSHA. OSHA reminded employers that it partners with states to provide consultation assistance to small businesses, providing assistance to employers covering approximately 1 million employees in 2018. The labor representative discussed the use of metrics to prepare and implement effective safety programs. A representative from industry discussed digital tools that they use to track leading and lagging indicators, allowing for real-time adjustments to safety programs and policies. Use of these metrics has significantly reduced injuries and illnesses throughout their industry.

Finally, a panel of construction experts including OSHA's acting director of the Directorate of Construction, an attorney representing management, and an attorney representing labor discussed updates in OSHA's construction-related regulations, as well as trends in construction enforcement. OSHA identified three major emphasis areas for 2019 including crane operator certification, trenching and excavation, and the continued implementation of the construction respirable silica rule. Over 52% of OSHA inspections are conducted at construction worksites, the majority of them involving multi-employer worksites. Fatalities from falls and trenching failures accounted for nearly 1/3 of construction-related fatalities in 2017. Four of the top five regulations cited in 2018 involved working at heights or fall protection. OSHA also reminded employers that the Subpart CC Crane Operator Certification requirements become effective in just over one month, on April 15, 2019. The attorneys for management and labor disagreed as to the effectiveness of OSHA's national emphasis programs ("NEP"), including its trench safety NEP. Management expressed concern at uneven enforcement of trenching regulations while labor expressed approval for the requirements set forth by the NEP. Finally, the panel discussed implementation of the construction crystalline silica regulation, challenges associated with compliance and enforcement, and lessons learned from the earlier-implemented general industry silica standard.

It has been a great conference, with many significant panels discussing relevant issues and concerns of OSHA, industry, and employees. We look forward to another year of assisting you and are excited for what is to come.

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