Maryland Bar Bulletin
Publications : Bar Bulletin

January, 2005

 Bar Bulletin Focus

Labor/Employment Law    

Occupational Safety And Health Forecast for 2005
By Adele L. Abrams

Maryland is a “state-plan state” when it comes to occupational safety and health responsibilities. As such, occupational safety and health (OSH) enforcement at Maryland worksites is handled by the Department of Labor, Licensing and Regulation. Its inspectors rely primarily on standards promulgated by the federal Occupational Safety and Health Administration (OSHA). Therefore, developments at the federal level directly impact the ability of the state to protect workers and to assist employers through cooperative programs.

The head of federal OSHA, Assistant Secretary John Henshaw, departed on December 31, 2004, and Jonathan Snare, Esq., a Texas election-law specialist who participated in redistricting that state to gain Republican congressional seats, was rewarded by being appointed Deputy Assistant Secretary and acting head of OSHA. Regardless of who is named as permanent agency head, it is logical to assume that the next OSHA chief will be sympathetic to industry’s concerns and that this will carry over in the regulatory and enforcement areas.

Maryland also has a new Commissioner of Labor and Industry, Kenneth P. Reichard, who replaced Dr. Keith Goddard after he was appointed head of federal OSHA’s Directorate of Evaluation and Analysis. The Commissioner of Labor and Industry issues final decisions on administrative challenges to OSHA enforcement prior to any appeal to the Circuit Courts of Maryland.

The federal Occupational Safety and Health Review Commission is a three-member independent agency that handles appeals of decisions on OSHA litigation. In 2004, it took the unusual step of actively soliciting amici views on the following issues:

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Whether the Commission has the authority under the OSH Act to authorize successor or alter ego liability for a repeat violation; and

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Whether policies are embodied in the OSH Act that would be served or frustrated by piercing the corporate veil or by extending the agency’s remedial orders to successors or alter egos of a previously-cited employer.

Another pending OSHA case now under review in the U.S. Court of Appeals, 5th Circuit, significantly impacts the way the agency does business. At issue is whether appellate courts must defer to OSHA’s stance or to the Commission’s ruling in such matters.

The Commission’s ruling in Secretary of Labor v. Ho eviscerates OSHA’s “egregious penalty” policy and severely limits the agency’s discretion to pursue heavy enforcement against flagrant violators. A 2-1 majority held that OSHA improperly issued penalties on a per-employee basis for Ho’s respiratory and asbestos training violations, and it reduced the penalties from $1.14 million to $658,000. The egregious penalties are how OSHA overcomes the $70,000 penalty cap per violation. The US Court of Appeals’ ultimate ruling in Chao v. Ho (brief filed 3/12/04) will impact both OSHA’s ability to craft policy and the agency’s status in challenging Commission decisions on enforcement activities.

Two earlier Commission decisions validated OSHA’s authority to issue citations and penalties for “egregious violations”. The policy instructs OSHA inspectors to cite employers for multiple violations of the same standard (“per exposed employee”) where the employer has demonstrated one or more of the following characteristics: (1) persistently high rates of illness/injury or fatalities; (2) extensive history of prior violations; (3) intentional disregard of health and safety responsibilities; or (4) bad faith (a plain indifference to standards or requirements).

On the regulatory front, OSHA released its latest agenda on December 13, 2004. Two pending initiatives may impact toxic tort law by establishing standards of care:

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Occupational Exposure to Crystalline Silica: OSHA is considering a significant reduction in the permissible exposure limit for both general industry and construction, along with new requirements for employee training, medical surveillance, exposure monitoring and prevention of “take-home contamination”. There is a target completion date of February 2005 for peer-review of the risk assessment for the draft proposed rule. Given the plethora of toxic tort cases involving occupational and public exposure to crystalline silica (a known-human carcinogen that is present in construction materials), this is a key rule to watch.

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Occupational Exposure to Hexavalent Chromium: This rulemaking was prompted by 1998’s Oil, Chemical and Atomic Workers Union and Public Citizen’s Health Research Group v. OSHA. The litigation was initiated by groups concerned with OSHA’s failure to regulate “Chromium 6” (the same chemical involved in the lawsuit made famous in the film Erin Brockovich), and the court set a timetable for OSHA to promulgate a standard. A proposed rule was released on October 4, 2004, and there is a deadline of January 2006 for a final rule reducing the permissible exposure limit.

Adele L. Abrams is president of the Law Office of Adele L. Abrams, P.C., in Beltsville, Maryland. She concentrates her practice in the areas of employment, occupational safety, workers’ compensation and family law.

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Publications : Bar Bulletin: January, 2005

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