Audit, Compliance and Risk Blog

Public health and worker safety agencies have issued and re-issued directions to employers for coping with the evolving COVID-19 pandemic. Most of these directives have been non-binding recommendations, although the Occupational Safety and Health Administration (OSHA) and state OSH agencies have reminded employers that their “General Duty Clause(s)” requires protective responses to recognized hazards. (most recently, in June OSHA revised its generally-applicable guidelines “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; I wrote about these HERE). Several states have taken the additional step and issued COVID regulations, beginning with Virginia in July 2020 (I wrote about it HERE).

The federal Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to establish and maintain national air quality standards, including criteria for permits and other authorizations issued to (potential) emission sources by state or local air quality management agencies (with EPA itself as the default regulator if other agencies fail). Forms of authorization include permits for specified stationary emission sources, and equipment/emission standards for mobile sources and some components of stationary sources. Almost all requirements apply to “direct sources” – the equipment or activity that directly produces emissions.

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers for copying with evolving situations. On June 10, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for management of workplace COVID-19 risks. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE).

Summer has arrived, bringing record-breaking heat to parts of North America. It's time to remember that outdoor work in the summer sun can lead to heat illness, as can indoor work in spaces that aren’t sufficiently insulated or cooled.

In the United States, the federal Occupational Safety and Health Administration (OSHA) and most state OSH programs provide guidance to employers and their workers. California's Division of Occupational Safety and Health (Cal/OSHA) administers detailed regulatory requirements for outdoor first promulgated in 2005, and Washington has enforced state-level rules since 2007. Canadian occupational health and safety agencies also recognize “thermal stress” as a workplace hazard, with attention to both heat and cold. California has been working on standards for indoor workplaces since 2017.

If you have outdoor workers in California you must comply with the following requirements, while if you're anywhere else you should at least consider them. 

The many overlaps and disjunctions in environmental protection laws mean that many situations are potentially subject to multiple laws and their associated enforcement provisions. On May 24, the US Supreme Court decided the latest incarnation in a long-running dispute between the federal government and the territory of Guam over contamination at a landfill, which included an earlier round involving the Clean Water Act (CWA) and the latest round involving the Superfund law (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)) (Guam v. United States). The court decided that a 2004 settlement in a CWA enforcement case did not – and could not – affect Guam’s latest search for financial contributions to cleanup under CERCLA. This decision provides not just specific clarification of the relationship between two CWA and CERCLA cost recovery provisions, but also a general reminder about the need to craft settlements carefully.

The Occupational Safety and Health Administration (OSHA) is proposing several corrections to handrail and stair rail requirements it adopted in 2017 as part of major revisions to its Walking-Working Surfaces Standard (I wrote about those revisions HERE and HERE). The present proposal identifies several typographical errors and ambiguities in the 2017 revision, which OSHA states have led to confusion and questions from employers around the country. The proposal would create a transition period for employers that made plausible interpretations of the provisions to be corrected.

On April 29, the Ninth Circuit (federal) Court of Appeals issued an important ruling on national pesticide regulation, directed at the controversial organophosphate insecticide chlorpyrifos. The order directs the Environmental Protection Agency (EPA) to act within 60 days to either announce an enforceable safe exposure level for use, or to ban the pesticide. The case, League of United Latin American Citizens (LULAC) v. Regan, interprets and applies the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and related authority under the Federal Food, Drug, and Cosmetic Act (FFDCA). This decision is the latest step in controversies dating to 2006, involving years of EPA inaction spanning the Obama and Trump administrations.

Within the US federal government, the Department of Justice (DOJ) enforces many civil and criminal laws directly, and also provides the attorneys who represent federal agencies in enforcement cases. For example, DOJ’s “US attorneys” represent the Environmental Protection Agency (EPA) in cases under the Clean Air Act, Clean Water Act, etc. In doing so, DOJ provides those attorneys with departmental policies to guide their activities – as a practical matter, DOJ policies supersede any conflicting client-agency policies. It’s therefore important, that since the Biden administration assumed office, Attorney General Garland and his deputies have moved aggressively to review and revise departmental policies inherited from the Trump administration. The remainder of this note discusses some of these changes.

A host of laws are designed to protect consumers from abusive business practices. These laws include longstanding protections against advertising that uses “false” or “misleading” advertising to induce consumers to buy products that do not perform as advertised, or that produce consequences different from those advertised. The basic U.S. federal law protecting consumers from false advertising is the Federal Trade Commission (FTC) Act, originally adopted in 1914; many states have enacted analogous provisions (in Canada, the Competition Act also provides analogous requirements). Organizations must meet these standards if they intend to make claims about their products or services, and should remember these provisions when reading materials prepared by others. 

Whose interests should corporate directors consider when running their companies? At least since 2008. The prevailing view in Canada is that while directors must consider shareholders’ interests, they may also consider the interests of other stakeholders. For example, in 2008, the Supreme Court of Canada decided the case BCE Inc. v. 1976 Debentureholders, allowing but not requiring consideration of debenture holders. Recently this permission has been shading toward an expectation.