Environmental, Safety, & Toxic Tort

By James L. Curtis and Craig B. Simonsen

iStock_000060649530_MediumSeyfarth Synopsis: The National STEPS Network provides a working model of an industry wide employee onboarding and safety training program.

We attended the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week. A Keynote address at the Symposium, presented by Rick L. Ingram of BP America and Elizabeth A. Haley of the  Petroleum Education Council, discussed the National Service, Transmission, Exploration & Production Safety (STEPS) Network.

The STEPS Network was organized in the face of oil and gas (O&G) industry wide injury and fatality statistics that were alarming to both OSHA and the industry. In response, in 2003, OSHA invited industry representatives and safety consultants from all associated fields to attend a meeting to make a change.  STEPS set-up and implemented an employee onboarding and training system that is applicable across the industry.

The National STEPS Network includes operators and contractors in the O&G Exploration, Production and Product Transmission industry as equally valued members in partnership with OSHA, NIOSH, other trade associations, and educators across the country. The Network’s goal was to serve all producing regions of the United States and to eventually share the program internationally.

The STEPS system as established provided three tiers of training:

  • Tier One: New employee onboarding, a 7 1/2 hour safety orientation program;
  • Tier Two: OSHA 5810, Hazards Recognition and Standards for On-Shore O&G Exploration and Production; and
  • Tier Three: Leadership Course for O&G Leaders.

The STEPS leadership indicates that the effort has been successful, providing over 940,000 Tier One orientation sessions through 2010. The National STEPS program has continued to grow, with now twenty-two independent regional networks serving twenty O&G producing states. Eight of the networks have signed formal alliances with OSHA, and the National STEPS Network signed a formal Alliance with OSHA and NIOSH on December 2, 2014.

For other industry segments, and for employers, the STEPS Network provides a working model for safety industry-wide onboarding and training. It is a model that may provide other industries and employers with food-for-thought.

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.

By Adam R. Young, Kylie Byron, and Craig B. Simonsen

shutterstock_178475264Seyfarth Synopsis: NIOSH releases a comprehensive training curriculum that home healthcare employers can use to minimize safety risks and prevent OSHA citations.

We had blogged previously about OSHA’s “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting. Now the National Institute for Occupational Safety and Health (NIOSH) has recently announced the availability of a “free” web-based training curriculum for home healthcare agencies and workers.

NIOSH indicates in its press release that the curriculum is intended to help employers communicate recognized hazards encountered in homecare workplaces, explain safety concerns, as well as provide “practical solutions to manage risks and improve safety.” The curriculum, Caring for Yourself While Caring for Others, is available in both English and Spanish. It comprises seven “flexible modules” that “allow for customization to meet the individual training needs of home healthcare workers.”

Each training module includes a trainer’s guide, customizable PowerPoint slides, and participant handouts. The modules include:

  • Introduction to Homecare Health and Safety;
  • Reducing Strains, Sprains and Falls;
  • Reducing Risk from Environmental Exposure;
  • Reducing Exposure to Bloodborne and Other Infectious Diseases;
  • Staying Safe When Working With Clients With Dementia;
  • Setting Healthy and Safe Boundaries to Reduce Stress; and
  • Safely Handling Threatening Behavior When Providing Homecare.”

In addition to the modules, the NIOSH curriculum comes with a Homecare Workers’ Handbook that is an “easy-to-read overview of some of the topics covered in this course as well as topics that are not covered” which “should be provided to all participants.” The Handbook includes safety checklists and to-do lists that can be used by home healthcare employers and agencies, their workers, and their clients, in order to help keep these workers injury free.

Employers and agencies in the home healthcare and social service industries can use these NIOSH materials to develop their own employee safety and training programs, or to update their existing programs as appropriate. At a minimum, employers who have a written program in place may wish to make sure that they covered all of the topics highlighted in these NIOSH materials. Coordinating employer written materials with the NIOSH curriculum may improve employee safety and reduce the likelihood of workplace incidents. Moreover, compliance with the NIOSH training recommendations also may reduce the employer’s liability for an OSHA citation, should OSHA conduct an onsite inspection.

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

By Parnian Vafaeenia and Karla Grossenbacher

Seyfarth Synopsis: Pokémon GO’s popularity is at a fever pitch. However, the game poses several risks for employers including software security, privacy and workplace safety concerns.

Your employees may be on a quest to catch ‘em all. Over 15 million people have downloaded the Pokémon GO game since its release two weeks ago.  In this augmented reality game, players use their mobile devices to catch Pokémon characters in real-life locations captured by the camera in a user’s cellular phone.  Though the game is very popular with Pokémon GO players, employers may not like the game quite so much.

Data And Security Concerns

There are data security concerns that arise from use of the Pokémon GO app.

First, users that want to play Pokémon Go must sign in to the app. There are two ways to do so—through an existing Google account, or through an existing Pokémon Trainer Club Account.  Up until very recently, the Pokémon website did not allow users to sign up for Pokémon Trainer Club Accounts due to overwhelming demand.  Thus, for most people, the only way to play Pokémon GO was by signing in to the app with their Google accounts.  Even though the option to create a Trainer Club Account is now available, doing so requires more time and effort than signing in through an existing Google account.

On Monday July 11, it was discovered that users who signed in through their Google accounts were unwittingly giving Niantic Labs—the developer that created the game—full access to the information in their Google accounts. This included access to email.  The developer insists that it is not actually accessing all of the information in users’ Google accounts and claims that an update that was recently released apparently limited the scope of Niantic’s access.  Nonetheless, for employers who have employees that use Gmail accounts for work purposes, there has been and continues to be risks to information security presented by allowing such employees to play Pokémon GO.

To make matters worse, there is a malicious version of the Pokémon GO program that includes a remote access tool called Droidjack. This tool, which was uploaded to a file sharing service on July 7, can give hackers full control over android users’ phones.  If a Pokémon GO user is playing the game on the phone they use to send work-related communications or on which they store work-related documents, this means that hackers could conceivably access such communications and documents on infected android phones of Pokémon GO users.  This poses risk for employers as well.

Workplace Safety

Employers that have Pokémon GO players in their facilities may also face safety issues. Niantic teamed up with Google Maps to put Pokémon characters in real-life places.  When a Pokémon is nearby, the app informs the player of its location.  Additionally, certain locations such as “gyms” and “poké stops” are hotspots for catching Pokémon.  Certain characters in the game are harder to catch and more highly coveted than others, so finding one of these popular characters nearby often excites players, and they will “hunt” them in a wide variety of physical spaces.

As recent headlines have demonstrated, employees who are focused on the game while walking around work property could be putting themselves in danger of tripping, falling or otherwise injuring themselves while playing. Similarly, employees whose job duties include driving or operating heavy machinery, or whose jobs require them to work in the vicinity of heavy machinery, risk injury to themselves or others if they attempt to play the game during work hours.  Indeed, there may be heightened safety concerns for certain employers in highly regulated environments like healthcare, where patient safety and health could be impacted by a distracted workforce.  Indeed, even employers in the retail industry could suffer if their employees are too distracted to assist customers.


If an employer’s workforce is using company-issued devices, employers can simply disable access to the app on company-owned devices. In fact, some employers have already taken this step.  Though blocking the app on company-owned devices takes care of part of the problem, many employers have BYOD (Bring Your Own Device) programs and will have employees using the same device to perform work and play Pokémon GO. Employers in this situation should consider the following steps:

  • Have employees install encryption software provided by the employer to protect sensitive data and agree to not modify the software;
  • Monitor or prohibit employees from accessing and downloading of external programs, apps and files or specific ones that pose security risks, like Pokémon GO;
  • Review your safety policy to ensure it encompasses activities similar to safety risks associated with Pokémon GO (i.e., limited use of handheld devices in hazardous work areas, etc.);
  • Create guidelines that prohibit employees from playing games such as Pokémon GO during work time (even if it is downtime) and restrict when and where such games can be played on work property during non-work hours.

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

By Mark A. Lies, II, James L. Curtis, and Craig B. Simonsen

Three engineers

Last week the Occupational Safety and Health Administration announced and issued a 161 page final rule to increase protections for construction workers in confined spaces. 80 Fed. Reg. 25366 (May 4, 2015), which is effective on August 3, 2015.

Confined spaces can be loosely defined as manholes, crawl spaces, tanks, and other places that are not intended for continuous occupancy. Confined spaces are also, because of their calculated design for other purposes, difficult to exit in an emergency. People working in confined spaces, without taking proper precautions, can face life-threatening hazards such as toxic substances, electrocutions, explosions, and asphyxiation.

The Secretary of Labor Thomas E. Perez said of the rule that “in the construction industry, entering confined spaces is often necessary, but fatalities like these don’t have to happen.” “This new rule will significantly improve the safety of construction workers who enter confined spaces. In fact, we estimate that it will prevent about 780 serious injuries every year.” OSHA Administrator, Dr. David Michaels, said “this rule emphasizes training, continuous worksite evaluation and communication requirements to further protect workers’ safety and health.”

The OSHA final rule adds a new subpart to 29 CFR Part 1926 to provide protections to employees working in confined spaces in construction. The new subpart replaces OSHA’s one training requirement for confined space work with a “comprehensive standard that includes a permit program designed to protect employees from exposure to many hazards associated with work in confined spaces, including atmospheric and physical hazards.” According to the Agency, the final rule is similar in content and organization to the general industry confined spaces standard, but it also incorporates several provisions from the proposed rule to address construction-specific hazards, to account for advancements in technology, and to improve the “enforceability of the requirements.”

Members of the regulated community, that is property owners, construction contractors, and sub-contractors, need to timely review this expansive rule, in order to meet the compliance date of August 3, 2015 and avoid OSHA citations. There are now new obligations on the various employers who may have their employees involved with construction site confined spaces.

One important requirement added to the rules relates to the responsibilities of the host employer (the owner of the site containing the confined space), the controlling contractor (who has primary control over the construction project), and the entry employer (whose employees will enter the confined space). The regulation makes the controlling contractor, rather than the host employer, the primary point of contact for information about the permit confined spaces at the worksite. The host employer must provide information it has to the controlling contractor who in turn passes the information to the entry employer.

In addition, the controlling contractor is responsible for making sure that employers outside of the confined space do not create hazards in the confined space, and that multiple entry employers working in a confined space at the same time do not create hazards for each other’s employees.

With such a complex and immense rule, employers are encouraged now to review their construction confined space policies, procedures, and training programs to ensure compliance with the new standard.


By Johanna T. Wise and Andrew J. Masak

Every day new stories about the uses (and misuses) of drones surface in the media.

They have been used to: photograph the 2015 Winter X Games, assist in firefighting operations, monitor agricultural drought, monitor pipelines in remote areas of the world, and take pictures for realtors.  One drone even famously crashed on the White House lawn.  Clearly drones are opening up the world to a whole new set of technological possibilities – perhaps the most widely-published future use being Amazon’s stated position that within four to five years, it could have a fleet of octocopters delivering orders at customers’ doorsteps.  The sky’s the limit to what drones could conceivably be used for, and that includes the workplace.

The president of the Association for Unmanned Vehicle Systems – Michael Toscano estimates that drones could become an $82 billion, 100,000-job industry by 2025.  Indeed, one of the leading commercial drone manufacturers in the world is currently seeking investors for a $10 billion valuation according to media sources.

The Legal Landscape and Regulatory Framework

As with so many areas where law and technology find themselves uncomfortably intersecting, the legal landscape has yet to catch up with a robust legal framework.  A patchwork of state law has emerged, and at least 16 states have approved some form of legislation. Most of these laws focus on law enforcement and prevent the police from using a drone to collect information about an individual without first obtaining a warrant. A few states, however, have adopted privacy-related restrictions which prohibit using a drone to intentionally conduct surveillance on a person or private property in certain situations.

Outside the individual states, the Federal Aviation Administration (FAA) has attempted to flex its regulatory muscle by applying old rules and proposing new ones to better fit the rise of drones.  Currently, anyone in the U.S. who wants to fly an aircraft — either manned or unmanned — must obtain FAA authorization, and failure to do so may result in fines of ten thousand or more dollars.   With this in mind, several companies have already successfully navigated the existing FAA framework (oil companies, real estate companies, and even CNN have applied for authorization).  Thus, while the dust continues to settle, it’s not unlikely that businesses may turn increasingly to drones in the workplace.

Surveillance in the Workplace

The rise of drones has opened the door to countless possibilities.  Society as a whole, and the business community in particular, have barely scratched the surface in unleashing their capabilities.  Some ways employers specifically could harness the power of drones include:

General Monitoring for Discipline or Safety – Perhaps the greatest potential for drones in the workplace involves using drones instead of traditional video cameras as surveillance devices.  Drones can access places where stationary cameras can’t.  What’s more, they can follow an employee and get a more complete picture of an incident. In this way, drone surveillance can aid an employer in disciplining an employee and reviewing accidents and safety issues.

Monitoring Employees Claiming Leave Status –Video surveillance of employees outside the workplace claiming workers’ compensation or disability benefits already occurs.  Indeed “watching” an employee claiming a benefit under false pretenses is a powerful tool employers and disability insurers alike use.  Drones may help facilitate greater monitoring of employees who are claiming leave status under false pretenses.

Non-Compete, Non-Solicit, and Trade Secrets Monitoring – Will employers be able to use drones in unique ways monitoring their trade secrets?  Is it possible for employers to program drones to help monitor whether employees are soliciting customers or other employees? Or are these uses still a bridge too far?

Several concerns and potential pitfalls remain.  Although current Federal law does not generally require an employer to provide notice to an employee and obtain consent to video surveillance in public areas in the workplace, state and local laws may impose additional requirements or limitations. Moreover, it remains a best practice to provide advance notice and warning to employees of video surveillance, drone or otherwise. Thus, as a threshold matter, employers considering using drones in the future to provide surveillance of their workers should strongly consider obtaining consent from employees before implementing any drone program.  Employers facing a unionized workforce should be especially cognizant of consent issues as drone usage would likely constitute a material change to the terms and conditions of employment that is subject to collective bargaining.

The use of drones to monitor employees and any resulting discipline could open employers up to potential discrimination claims. Just as the use of drivecams in vehicles or other tracking technologies must be applied in a non-discriminatory manner, so too should employers consider their use and application of drone surveillance.  Any selection decision or resulting disparate impact based on a protected category could arguably be found to violate the law. In this regard, employers considering using drones would be well advised to maintain policies and procedures describing how they use drones and a neutral process for selecting who will be monitored and under what circumstances.

For more information on the use of drones in the workplace, please contact the authors or your Seyfarth attorney.

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.

By: Mark A. Lies IIKerry M. Mohan, and Brent I. Clark

As reported in the news recently, the Ebola virus is a significant health hazard. There are now reported cases of the virus in at least two locations in the United States. Certain industries, such as healthcare, emergency responders and transportation, particularly the airline industry, are already identified as areas where there is a higher probability of infection. As of yet, there is no reported case in a workplace in the continental United States. As recently blogged about by our colleagues in our Environmental, Safety and Toxic Torts Practice Group, click here for a primer on the disease for a discussion of the Federal employment laws that may be impacted. The article also provides recommendations on how to preplan and develop a response plan. Should you have additional questions, please contact the authors Mark Lies or Kerry Mohan, any one of the attorneys in our Environmental, Safety and Toxic Torts Practice Group, or your Seyfarth attorney.

By: Mark A. Lies II and Kerry M. Mohan

On Tuesday we wrote about OSHA’s September 11, 2014, announcement of its Final Rules that revised current recordkeeping standards.  Today, we provide you more information regarding what the changes to those rules will mean.

Increased Reporting Of Injuries And Incidents Will Lead To Increased OSHA Inspections

Under the current rule, all employers are required to report to OSHA “[w]ithin eight (8) hours of the death of an employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident.” 29 C.F.R. § 1904.39(a). This requirement applies to all employers, regardless if they have 10 or fewer employees and regardless of if they are exempt from maintaining recordkeeping logs.

Under the new standard, all employers are required to report to OSHA:

  • Within eight (8) hours after the death of any employee as a result of a work-related incident;” and
  • Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee’s amputation or an employee’s loss of an eye, as a result of a work-related incident.”

20 C.F.R. § 1904.39(a) as amended.

OSHA’s new reporting rule raises several questions as to what it even means. For instance, what constitutes an amputation? Under the new rule, an amputation does not require bone loss. Thus, does the cutting-off of the very tip of a finger, no matter how small, constitute an amputation? Also, what constitutes the loss of an eye? Does it require an immediate incident resulting in the loss of an eye? The fact that these questions exist means that OSHA may have a different interpretation of the rule than the employer, which could result in a citation.

Moreover, the new standard’s implications are significant. As you may expect, the reporting of a death or serious injury often leads to an OSHA inspection, which brings its own set of issues. Thus, by requiring employers to now report more injuries and illnesses, the number of OSHA inspections, and citations issued as a result, will certainly increase.

Multi-Employer Worksites

As this rule unfolds, it will have implications relating to OSHA’s “multi-employer” worksite doctrine which is applicable when there are multiple employers engaged in performing work at the same worksite.

Section 5(a) of the Occupational Safety and Health Act broadly requires employers to furnish each of its employees a workplace free from recognized hazards and to comply with all occupational safety and health standards developed by OSHA. Thus, the Act creates two types of obligations: 1) a “general duty” obligation running only to the employer’s own employees; and 2) an obligation to obey all OSHA standards with respect to all employees, regardless of their employer.

This second obligation formed the basis for OSHA’s “multi-employer worksite policy,” under which the Agency decided it had the authority to issue citations not only to employers who exposed their own employees to hazardous conditions, but also to employers who created a hazardous condition that endangered employees, whether its own or those of another employer.  This policy gave OSHA the ability to issue citations to multiple employers even for violations that did not directly affect the employer’s own employees. This policy had particular import in the construction industry, with many different employers having employees at a site at any given time.

Since the early 1980s, OSHA has continuously expanded the scope of its multi-employer worksite policy. Under OSHA’s current enforcement policy, compliance officers are instructed to issue citations to any employer who:

1)      exposed its own employees to a hazardous condition;

2)      created a hazardous condition that endangered any employer’s employees;

3)      was responsible for correcting a hazardous condition even if its own employees were not exposed to the hazard; or

4)      had the ability to control to prevent or abate a hazardous condition through the exercise of reasonable supervisory authority.

This fourth category, the “controlling employer,” has historically caused the most consternation among employers as well as courts.  The new OSHA enforcement policy regarding reporting of injuries or illness and monitoring the OSHA 300 Log and related documents will raise numerous issues, for example:

  • Does the controlling employer at the worksite have OSHA liability if another employer, such as a subcontractor or a temporary staffing service, at the worksite fails to report an injury or illness involving the subcontractor’s or temporary staffing service’s employee to OSHA within the required time period?
  • What obligation does the controlling employer have to inquire with other employers to determine whether a subcontractor or temporary staffing service had a reportable or recordable injury or illness and whether the subcontractor or temporary staffing service complied with the rule?
  • Who is responsible for maintaining the OSHA 300 Log at the worksite since OSHA has specific rules regarding which employer(s) is/are required to maintain the Log if there are multiple employers at the worksite?

Inspection Preparation

As many employers have learned who have been inspected by OSHA, there are respective rights of the employer, employees and OSHA during an OSHA inspection.  Unfortunately, most employers are unaware of these respective rights, as well as their employees, and, therefore, may waive important rights regarding the scope of the inspection, what documents the agency is and is not entitled to and how to respond to requests for employee interviews. Since there will be many more inspections generated, it is critical in the next several months that employers train their supervisors and make employees aware of these rights.

Training Of The OSHA Record Keeper

Because many thousands of new employers will now be responsible for maintaining the OSHA 300 Log, the training process must begin now so that the record-keepers can begin to properly document recordable injuries and illnesses on the Log, as of January 1, 2015. The record-keeper will need to learn the various categories of recordable injuries and illnesses, how to evaluate medical records to determine whether an incident is recordable and then become aware of how to insert the data into the correct categories in the Log. The learning curve will be steep since the Log must be completed for each recordable incident within seven (7) calendar days of the employer becoming aware that there has been a recordable injury or illness.


In order to be prepared to meet these new compliance obligations, employers should consider the following:

  • determine whether the employer is now subject to the requirement to maintain the OSHA 300 Log, and if so, designate and train an employee who will be competent to perform this responsibility
  • conduct training for its record-keeper or other responsible employee regarding the new requirements to report the expanded categories of reportable severe injuries and illnesses within twenty-four (24) hours to OSHA
  • because there will be many more OSHA inspections due to the new reportable categories of severe injuries and illnesses, conduct training on the various rights and responsibilities of employers, employees and OSHA during an OSHA inspection so that these rights can be properly exercised to limit the scope of potential employer liability.

For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.

By: Mark A. Lies II and Kerry M. Mohan

As many employers know all too well, the Occupational Safety and Health Administration (“OSHA”) requires them to record work-related injuries and illnesses and to maintain the OSHA 300 Log for five years. Moreover, OSHA requires all employers to report to OSHA certain serious injuries within a short time period. On September 11, 2014, OSHA announced its Final Rule revising the current recordkeeping standard, which will significantly expand the recordkeeping rule’s reach to hundreds of thousands of new employers and place further burdens on employers to report additional workplace injuries and illnesses. Since these new rules become effective on January 1, 2015, employers are being encouraged, but have little time in reality, to modify their practices and prepare for the coming wave of enforcement.

OSHA’s Recordkeeping Regulations

Under OSHA’s recordkeeping regulations, 29 C.F.R. 1904, certain employers with more than 10 employees must record work-related injuries and maintain written records for five (5) years. Those records include the 300 Log, the 301 form, and the 300A annual summary. Though it may sound simple, recordkeeping is not an easy task, as it involves numerous issues including  work-relatedness, the nature and scope of an injury or illness, and the counting of employee days off from work or restricted duty, all of which many times involve analysis of incomplete or conflicting evidence. For instance, an employer may disagree with an employee’s claim that his or her injury or illness is work-related. In such circumstances, the employer must evaluate the employee’s claim to determine whether the injury or illness should be recorded on the OSHA 300 Log or should be found to be non-work-related. If the employer finds that the injury is non-work-related, the employer will have to maintain documentation to support its determination in case OSHA were to challenge that decision.

Thousands Of New Employers Are Now Subject To OSHA’s Recordkeeping Requirement

Under OSHA’s current rule, employers with 10 or fewer employees are exempt from maintaining OSHA 300, 301, and 300A records, which track work-related injuries. The current rule also exempts thousands of employers based on their Standard Industrial Classification (“SIC”) codes. Under the new rule, the list of exempted employers will be based on North American Industry Classification System (“NAICS”) codes. As a result, many employers who were once exempted from OSHA’s recordkeeping requirements will now have to begin maintaining OSHA 300, 301, and 300A records. Some of the industries now covered by the recordkeeping rules include:

  • “Bakeries and tortilla manufacturing;”
  • “Automobile dealers;”
  • “Automotive parts, accessories and tire stores;”
  • “Lessors of real estate;”
  • “Facilities support services;”
  • “Beer, wine, and liquor stores;”
  • “Commercial and industrial machinery and equipment rental and leasing;”
  • “Direct selling establishments;”
  • “Performing arts companies;”
  • “Museums , historical sites, and similar institutions;”
  • “Amusement and recreation industries; and
  • “Other personal services.”

The first question that comes to mind when seeing this list of industries now covered under the recordkeeping rule is, “What is OSHA even talking about?” Thus, it is important that employers learn what their NAICS code is to determine if they are now covered by the recordkeeping rule. If so, the employer will then have to count its number of employees to see if it has 10 or fewer. There is information available from OSHA at www.osha.gov/recordkeeping2014 on how to conduct this assessment and also identify the employers now subject to the rule.

In short, OSHA’s new rule will encompass hundreds of thousands of employers who never had to keep these records. Moreover, because of the January 1, 2015 implementation date, these employers must take prompt action to ensure that they are prepared to record injuries and illnesses in the future.

LATER THIS WEEK — Information on how these changes impact employers, their reporting requirements and what we can expect from OSHA in the coming new year.

For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.

By Wan Li and Craig B. Simonsen

This just in from our CHINA correspondence desk…. Actually, we wanted to make you’re aware that Seyfarth has offices in China, Australia and United Kingdom. From time-to-time we will let you know about topics that are impacting our international counterparts and our clients that do business there.  Read on and Enjoy!


The State Council recently announced new Guidelines for pilot programs for trading emissions permits to reduce air and water pollution.

Key pollutants to be traded under the pilot programs include sulfur dioxide and nitrogen oxide in the air, and chemical oxygen demand and ammonia nitrogen in wastewater. Speaking of these pollutants, Huang Xiaozeng, Deputy Head of the Pollution Emission Control Department of the Environmental Protection Ministry, said earlier this year that “all kinds of measures will be implemented to ensure the tough targets are met.”

The pilot programs had begun in 2007, with areas now or soon to be running pilot trading programs for emissions permits including Tianjin, Hebei province, the Inner Mongolia autonomous region, and the provinces of Shanxi, and Hunan. Under the Guidelines the eleven pilot regions must establish mechanisms for the purchase and trading of emissions by 2017, which is then expected to lay a foundation for the program to be rolled out nationwide.

According to the Ministry of Environmental Protection’s website, during the past year, on Shanxi’s provincial emissions permit trading system alone, over $60 million in emissions permits have been traded between 400 companies. Regions may apply the permits to the pollutants that affect them most, with revenues intended to be provided to local governments to further fund pollution control.

According to the recent State Council statement, “trading of emissions rights must be done in a voluntary, fair and environment-oriented way and trading prices will be decided by the buyer and the seller.” Additionally, “the pilots aim to allow the market to play a decisive role in resources allocation, encourage firms to actively cut pollutant discharges, speed up industrial restructuring and clean the environment.”

The State Council statement, though, differs from a statement offered by Ma Zhong, the Dean of the School of Environment and Natural Resources, at Renmin University, in Beijing, to Reuters. “Emission trading in China is not strictly a market activity and it is more like paying for emitting. It is [currently] just a few regions running some test trading.”

Businesses with interests in China, and especially in these pilot trading program areas, may wish to fully investigate and explore their options when dealing with facility and process permitting requirements. The new Guidelines do create a scheme where facilities will be required to pay for their emissions, but doing so will be necessary to avoid even higher potential penalties for not having the required emissions permits. In the meantime, facilities that participate in the emissions trading permits program will be taking steps toward helping to clean the environment.