Shook, Hardy & Bacon represents several industries, including the food and manufacturing sectors, in both administrative proceedings and litigation matters involving Occupational Safety and Health Administration (OSHA) regulations. We counsel clients on communicating information concerning chemical hazards and implementation of appropriate protective measures for employees under 29 CFR § 1910.1200. As but a few examples, we have assisted clients in handling regulatory matters and litigation involving benzene, petroleum hydrocarbons, fly ash, mold, aflatoxins, endotoxins, exotoxins, mycobacterium, triethanolamine, diethanolamine, metalworking fluids, molten sulfur, hydrogen sulfide and other sulfur compounds, wood smoke, diacetyl and phosphine gas. Our attorneys have defended companies in lawsuits alleging failure to comply with Hazard Communication Standards (HCS), as well as concurrent claims under state law alleging personal injuries as a result of an alleged failure to warn. We also represent clients with other HCS provisions, such as 29 CFR § 1910.1048 (relating to asbestos); and, we have secured a defense verdict in a civil jury trial involving an alleged workplace exposure to asbestos that triggered a mesothelioma.
Our attorneys have also successfully defended clients in OSHA investigations, enforcement and penalty actions. We have helped companies investigate and defend the circumstances of several cases where employees were seriously injured or killed while at work, assisting with lockout/tagout issues and process safety management compliance issues. We also worked with one particular client to negotiate with OSHA to avoid making more than $1 million in equipment modifications that were initially demanded by the agency. We regularly consult with clients on handling and responding to OSHA compliance and regulatory inspections and similar issues, including those not only related to hazard communication standards, but labeling requirements and privileged OSHA compliance audits.
In conjunction with providing counsel to clients on a wide variety of OSHA standards and OSHA audits, we have successfully challenged OSHA rulemaking on topics such as indoor air quality. The firm recently appealed OSHA’s Hazard Communications Standard in the D.C. Circuit Court of Appeals on behalf of a manufacturing industry association, and specifically appealed whether OSHA could unilaterally mandate that state law failure-to-warn claims in individual injury actions could proceed against a defendant despite compliance with the HCS labelling and warning system. The D.C. Circuit agreed with our arguments that OSHA could not unilaterally diminish the preemptive effect of its own regulations. When companies comply with OSHA’s warning regulations, trial courts remain free to conclude that, as a matter of law, the companies’ warnings cannot be deemed inadequate.
In addition to our OSHA experience, we have counseled clients involved with National Institute for Occupational Safety and Health (NIOSH) investigations and accompanying Health Hazard Evaluations (HHEs). We coordinate with our clients in managing the NIOSH investigation, working with NIOSH on requests for information and the substance of final HHE reports, and working with the client to assess NIOSH’s recommendations and conclusions following the issuance of the HHE Final Report, including workplace safety and review and updates on Material Safety Data Sheets.
