By Adam R. Young and Craig B. Simonsen

Seyfarth Synopsis: New state and federal laws and rules require employers to have compliant phones systems for 911 direct dialing and E-911.

Most large employers maintain multiline phone systems at their workplaces.  Along with emergency action plans and evacuation procedures, employers must take affirmative steps to ensure that employee phones provide adequate safety protections in the event of an emergency.  Some jurisdictions impose numerous regulations on those systems and their ability to dial 911, requiring onerous notifications, procedures, labels, and 911 dialing features.  And those requirements are constantly evolving, as 2018 marked a seminal shift in 911 regulations.

The federal government has passed a new law requiring that phones dial 911 directly, and has directed the Federal Communications Commission to undertake a rulemaking on Enhanced 911 regulations, also called “E-911.”  These federal and state developments may require employers to take action to ensure compliance, and revamp their emergency safety equipment and procedures.

New Federal Law Requires Direct Dialing of 911

In recent years, nine states and New York City have adopted rules requiring phones to be able to directly contact 911.  This means that any caller who dials 9-1-1 will be connected with emergency services, without a prefix (such as dialing 9 first) or going through an operator.  In 2018, President Trump signed a bipartisan new law which requires any phone to be able to directly contact 911, 47 U.S.C. § 623(b).  The federal law applies to all types of newly installed multiline phone systems.  State and local laws may require existing systems to be revamped by a compliance date.  Accordingly, employers replacing their phone systems or installing new systems will need to comply with these requirements.  Employers who operate phone systems that require an operator or dialing to get an outside line should review their systems and ensure that they comply.

Federal E-911 Legislation May Be Forthcoming

Federal and state governments have begun to require Enhanced 911 services for employers who use multiline phone systems.  States have enacted Enhanced 911 or E-911 requirements to multiline phone systems.  E-911 means that the telephone system automatically will transmit phone number information or specific location information (building, floor, office number) to emergency services when a caller dials 911.

These restrictions vary by state, but can require employers to notify employees regarding E-911 capabilities, train employees on 911 dialing procedures, and provide written instructions near phones.  Some also require that the phones provide E-911 capabilities in terms of number and/or location information.  The President signed H.R. 4986 § 506 (March 7, 2018), which requires the Federal Communication Commission to consider adopting rules that ensure a “dispatchable location” is conveyed with 911 calls.  The statute requires the FCC to conclude a proceeding to consider adopting rules E-911 location rules by September 23, 2019.  Employers should monitor this process closely, as it could result in another unfunded mandate for employers to comply with E-911.

Employers should begin work now to ensure that their phone systems comply, and that their employees are properly trained on the new and pending federal and state laws and regulations.  For additional information on workplace safety, emergency procedures, and emergency equipment, please follow our blog, or feel free to contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Workplace Policies and Handbooks Teams.

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: In a challenge brought by trade associations for the farm supply and fertilizer industries, the D.C. Circuit vacates OSHA memorandum narrowing the retail exemption from the PSM standard.

The U.S. Court of Appeals for the District of Columbia Circuit recently ruled against OSHA on a Petition for Review of an OSHA interpretative memorandum in Agricultural Retailers Ass’n & Fertilizer Inst. v. United States Department of Labor, No. 15-1326 (D.C. Cir. Sept. 23, 2016).

In this case, the Agricultural Retailers Association and the Fertilizer Institute sought review of a July 22, 2015 OSHA memorandum and interim policy interpretation that had significantly narrowed the Retail Facilities Exemption to the Process Safety Management of Highly Hazardous Chemicals (PSM) standard, 29 C.F.R. § 1910.119.   The challenged interpretation had a dramatic effect on agricultural retailers that provide fertilizers to end users in the agricultural industry.  In that regard, the interpretation swept in many previously-exempt fertilizer and farm supply retailers into coverage under the onerous PSM standard.

OSHA issued the interpretation after a 2013 explosion at a West, Texas fertilizer supplier left 15 people dead and many others injured. Under the interpretation, OSHA retreated from the so-called “50 percent test” for determining whether a seller of highly hazardous chemicals qualified for the retail exemption.  Under that test, an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user.”  Application of this test meant that fertilizer suppliers typically fell within the exemption despite having large quantities of highly hazardous chemicals at their establishments.  The challenged interpretation applied a different, much narrower, test to determine applicability of the exemption.  Under that test, retail facilities included only those “organized to sell merchandize in small quantities to the general public” as set forth sectors 44 and 45 of the NAICS Manual.  This definition precluded employers that sold or distributed large, bulk quantities of highly hazardous chemicals (i.e., farm and fertilizer supply businesses) from relying upon the retail exemption.

The thrust of the petitioners’ challenge to OSHA’s memorandum was that it was actually an OSHA standard, not an interpretation, and that, in turn, OSHA was required to follow rulemaking procedures, including notice-and-comment requirements. OSHA admittedly did not follow these procedures.  OSHA contended that rulemaking procedures did not apply because its action was a mere interpretation of a standard, and that its memorandum did not issue or modify a “standard.”  The D.C. Circuit rejected OSHA’s argument and agreed with petitioners.  In so doing, the court held that the memorandum amounted to a “standard within the meaning of the OSH Act” because its purpose was to correct “a particular significant risk,” rather than guide general enforcement.  Given that determination and OSHA’s admitted failure to follow rulemaking procedures, the court granted the petition and “vacated” OSHA’s memorandum.

For the time being, this means that employers (including agricultural retailers) may once again rely on the “50 percent rule” for determining applicability of the retail exemption to the PSM standard. How long that reprieve lasts remains to be seen given OSHA’s apparent commitment to this issue, but one thing is clear — any future change to the retail exemption will afford stakeholders the opportunity to be heard through notice-and-comment procedures.

In the meantime, we will continue to monitor and keep you updated on this issue as it develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.