Melissa A. Bailey

Shareholder | Washington

Melissa Bailey focuses her practice on occupational safety and health issues. She litigates OSHA cases before federal and state agencies and courts, and also represents employers during government inspections and investigations. Her practice also includes providing compliance advice and conducting privileged audits on complex workplace safety issues. Melissa represents employers in a wide range of industries, including electric utilities, chemical manufacturing/refining, retail, food processing, construction, and drug manufacturing. Melissa also regularly represents clients before OSHA in connection with rulemaking and policy formation. She has testified before Congress regarding OSHA issues, and has advocated for management interests with regard to OSHA enforcement and compliance policies.

Melissa has practiced occupational safety and health law for over 20 years and, as a result, she understands the legal issues as well as the practical issues confronting employers. She routinely assesses both the current and future liability that may result from significant OSHA citations, and identifies the most effective approach – whether that is a strategic settlement or litigation – in each case.

Melissa also represents clients in whistleblower matters under a broad range of statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Toxic Substances Control Act and the Clean Air Act. Her experience ranges from conducting investigations and developing position statements to litigating whistleblower cases before Administrative Law Judges and in court.

Melissa is an active speaker on OSHA and whistleblower issues. She speaks to trade association members and clients regarding a variety of OSHA issues, including strategies to use during an OSHA inspection to minimize liability, conducting privileged audits and accident investigations, and the impact of OSHA’s regulatory and enforcement agenda on particular industries. Melissa is also the former Employer Co-Chairperson of the American Bar Association Occupational Safety and Health Committee.

Melissa was ranked in Band 1 by Chambers USA 2022 and 2023 in the category of occupational safety and health lawyers. Based on feedback from clients and colleagues at other law firms, Chambers’ comments included: “She is a superb lawyer” who is “knowledgeable, works well with clients and does high-level OSHA work.”

Melissa was named a BTI Client All-Star in 2023. Client comments to BTI about Melissa included: “Melissa’s responsiveness is unmatched, and knows my business so well we consider a part of our internal team.”

More About Melissa A. Bailey

Experience

Melissa litigates significant OSHA enforcement matters and also represents many employers during OSHA inspections that followed fatalities or catastrophes. Her experience includes the following:

OSHA issued two willful citations alleging violations of the construction trenching standards, and also sent out a press release claiming that the employer was “indifferent” to the hazards faced by its employees. After significant discovery and a hearing, the Administrative Law Judge issued a decision vacating one citation and amending the other citation to reflect a serious rather than willful violation. The total penalty was reduced from $140,000 to $7000.
After a fatal accident, OSHA issued a citation that would have required the company and its industry to abate the alleged hazard by using a completely different type of equipment, which would have cost millions of dollars. Following the hearing, the Administrative Law Judge vacated the citation item.
OSHA issued significant citations and a press release, and placed the employer at issue into the Severe Violators Enforcement Program (“SVEP”). The company engaged in months of substantive settlement negotiations with OSHA, and OSHA ultimately agreed to amend the citations such that the employer was no longer included in SVEP and abatement obligations were minimized.
Following an amputation, Maryland Occupational Safety and Health cited a major grain handling/food processing company for violations of OSHA’s Grain Handling standard. After a six-day trial, the Administrative Law Judge vacated the citations issued under the Grain Handling standard. The case was one of the first to test a controversial OSHA enforcement policy regarding the use of sweep augers in grain bins.
OSHA cited a large employer engaged in trimming trees and vegetation around electrical lines for a violation of the Logging standard.; The inspection resulted from an employee fatality. The company argued that the standard was inapplicable. After significant discovery, including multiple depositions, OSHA withdrew all citation items.
Tennessee OSHA cited a chemical manufacturing facility for multiple violations of its Process Safety Management standard after an explosion resulted in an employee fatality. Based on additional facts presented during discovery, the government withdrew all but one of the citations.
An employee who was terminated alleges that the employer retaliated against him for raising safety complaints under the Surface Transportation Assistance Act. Following a two-day trial, the Administrative Law Judge found that the employee was properly terminated.
OSHA conducted an audit of three years of injury and illness data, including OSHA 300 Logs and associated documents, for a large oil field servicing company. Although OSHA did issue citations, the company was very pro-active throughout the investigation, and as a result, liability was minimized.
OSHA cited an electric utility for multiple violations following an accident that resulted in two fatalities. After extensive discovery and settlement negotiations, OSHA withdrew most of the citation items and cut the penalty by almost 50 percent.
After an explosion that resulted in national news coverage, OSHA inspected an employer that provided industrial gases to customers. The company actively asserted its defenses during the inspection, and OSHA did not issue any citations.

Melissa has conducted accident investigations and root cause analyses under attorney-client privilege. She has also assisted clients in conducting complex industrial hygiene investigations, including two corporate-wide assessments of the risks of exposures to lead, cadmium and other health hazards.

Education & Admission

Professional Activities

Speeches

Workplace Safety Symposium – “Our “Real” OSHA Trial: You Be the Judge!” – Austin – December 8, 2023
Workplace Safety Symposium – “Employer Expectations of Management and Supervisors Before, During, and After an OSHA Inspection” – Austin – December 7, 2023
Workplace Safety Symposium – “The Heat Is On: An Interactive Session on Managing Heat Illness Incidents” – Austin – December 7, 2023
Workplace Safety Symposium – “The Latest on Workplace Safety Legislation, Policy, and Enforcement” – Austin – December 7, 2023
Workplace Safety Symposium – “Introduction to Our “Real” OSHA Trial: You Be the Judge!” – Austin – December 6, 2023
Ogletree Deakins Webinar – “OSHA Midyear Update: Where Is OSHA Focusing Its Resources and What Does This Mean for Employers?” – July 27, 2023
Workplace Strategies Seminar – “The Wacky World of Employment Law” – San Diego – May 11, 2023
Workplace Safety Symposium – “Wacky OSHA Cases” – Tampa – December 8, 2022
Workplace Safety Symposium – “Workplace Safety Legislative, Policy, and Regulatory Developments” – Tampa – December 8, 2022
Workplace Safety Symposium – “Multi-Employer and Joint Employer Worksites” – Tampa – December 7, 2022
Workplace Strategies Seminar – “OSHA’s Laser Focus on Heat Illness: What Does It Mean for Employers and How Can Your Company Avoid Citations?” – Phoenix – May 5, 2022
Workplace Strategies Seminar – “The Wacky World of Employment Law” – Phoenix – May 5, 2022
Ogletree Deakins Webinar – “OSHA Hour: What Does OSHA’s New Laser Focus on Heat Illness Mean for Employers?” – April 28, 2022
Ogletree Deakins Webinar – “SCOTUS Hits Pause on OSHA COVID-19 Vaccination and Testing ETS: What’s Next for Employers?” – January 19, 2022
Corporate Labor and Employment Counsel Exclusive – “OSHA’s New COVID-19 Emergency Temporary Standard, and the Federal Contractor and CMS Vaccine Mandates: What In-House Counsel Need to Know” – Amelia Island – November 11, 2021
Corporate Labor and Employment Counsel Exclusive – “Playing It Safe: OSHA Compliance in a New World” – Amelia Island – November 11, 2021
Ogletree Deakins Webinar – “It’s Here—OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard ” – November 9, 2021
Ogletree Deakins Webinar – “OSHA Hour: COVID-19 ETS Update —Where Does It Stand Now?” – September 16, 2021
Ogletree Deakins Webinar – “OSHA Hour: Heat Stress and OSHA—What Employers Need to Know” – August 5, 2021
Workplace Strategies Seminar – “New COVID-19 Emergency Temporary Standard: What Will It Require of Employers?” – Austin – June 25, 2021
Workplace Strategies Seminar – “The Wacky World of Employment Law” – Austin – June 25, 2021
Ogletree Deakins Webinar – “OSHA Hour: Will Agency Guidelines on COVID-19 Vaccinations Impact OSHA Recordkeeping and Return-to-Work Plans—and What Will Be in OSHA’s Emergency Temporary Standard?” – April 29, 2021
Virtual Workplace Safety Symposium – “More Developments Under the General Duty Clause” – December 3, 2020
California Workplace Safety: Solving the Perplexing Puzzle – “Cal/OSHA and COVID-19: Recording and Reporting Workplace Illnesses” – September 16, 2020
Virtual COVID-19 Employment Litigation: Prevention and Defense Strategies Seminar – “Safety First: An Update on OSHA Citations and Litigation” – September 10, 2020
Ogletree Deakins Webinar – “OSHA Hour: Virginia’s COVID-19 Emergency Temporary Standard” – July 30, 2020
Ogletree Deakins Workplace Strategies Virtual Conference – “OSHA Guidance, CDC Guidelines, and State Executive Orders—Oh My: What Do I Have to Follow, When, and Where?” – May 14, 2020
Ogletree Deakins Webinar – “OSHA Hour: The Latest COVID-19 Workplace Safety and Health Updates” – May 7, 2020
Ogletree Deakins Webinar – “COVID-19 Update for Employers: Focus on OSHA Guidance and Workplace Health and Safety Issues” – March 30, 2020
Ogletree Deakins Webinar – “COVID-19 Update for Employers: Focus on OSHA Guidance and Workplace Health and Safety Issues” – March 24, 2020
Workplace Safety Symposium – “OSHA’s Use and Misuse of the General Duty Clause: How to Avoid and Combat Citations” – New Orleans – December 5, 2019
Corporate Labor and Employment Counsel Exclusive – “Pop Quiz—Corporate Labor and Employment Law Exclusive Style” – New Orleans – November 15, 2019
Ogletree Deakins Workplace Strategies Seminar – “The Wacky World of Employment Law” – Las Vegas – May 2, 2019
Ogletree Deakins Workplace Safety Symposium – “Process Safety Management: Management of Change is More Than a Term of Art” – Nashville – December 5, 2018
Corporate Labor and Employment Counsel Exclusive – “Pop Quiz – Labor and Employment Exclusive Style” – La Quinta – November 8, 2018
Ogletree Deakins Workplace Strategies Seminar – “The Wacky World of Employment Law” – Phoenix – May 10, 2018
Labor and Employment Counsel Exclusive – “Today’s OSHA: Keeping Up and Catching Up With Workplace Health and Safety Developments” – Boca Raton – November 10, 2017
Ogletree Deakins Workplace Strategies Seminar – “Panel Discussion: It’s Going to Be Huge! The Trump Administration and Employers” – San Diego – May 4, 2017
Ogletree Deakins Workplace Strategies Seminar – “The Wacky World of Employment Law” – San Diego – May 4, 2017
Food Marketing Institute – “OSHA’s Enforcement Crackdown: What does it mean for the retail grocery industry?” – Phoenix – March 2013
International Oil Mill Superintendents Association – “OSHA: The New Risk Factors” – Okoboji – June 2012
National Grain and Feed Association – “Strategies for Minimizing OSHA Liability” – Indianapolis – June 2012
Ogletree Deakins Webinar – “Safety Incentives Under Attack – Is Your Plan Vulnerable?” – May 2012
American Road and Transportation Builders Association – “DC/OSHA Update” – Washington, DC – January 2012
National Grain and Feed Association – “The New Risk Factor for Grain, Feed and Processing Facility Managers” – San Diego – June 2011
Edison Electric Institute/American Gas Association – “Employee Free Choice Act – State of Play” – Arlington – June 15, 2010
Associated General Contractors – “Pandemic Planning: Are you prepared?” – Washington, D.C. – April 16, 2010
American Bar Association/OSHA Law Subcommittee – “OSHA Update: Shoring the Foundations” – San Diego – March 10, 2010
South Carolina Society for Human Resource Management – “Preparing for the 2010 Agenda” – Greenville – February 23, 2010
Organization Resource Counselors, Occupational Safety and Health Lawyers Group – “Legislative Update” – Washington, D.C. – November 10, 2009
American Gas Association Safety Leadership Summit – “Minimizing OSHA Liability” – Miami – November 11, 2008
American Bar Association Section of Labor and Employment Law – “Occupational Safety and Health Law Fundamentals” – Denver – September 17, 2008

Published Works

Media Quotes

January 14, 2022 – Fortune – “What the Supreme Court strike-down of Biden’s vaccine mandate means for employers”
January 13, 2022 – HR Dive – “SCOTUS upholds stay on OSHA’s vaccine mandate”
June 21, 2021 – Bloomberg Law – “Biden Boosts OSHA Virus Enforcement as Vaccines Herald Changes”
May 26, 2021 – SHRM Online – “Does OSHA Require Employers to Record Vaccine Reactions?”
November 13, 2018 – SHRM Online – “OSHA Clarifies when Post-Accident Drug Testing Is Permitted”
March 28, 2018 – EHS Today – “OSHA Cracks Down on Failure to File Electronic Injury Reports”
February 19, 2018 – Greater Baton Rouge Business Report – “OSHA regulations aren’t changing much under Trump, but manufacturers may have a different kind of relationship with the agency”
September 2017 – Bloomberg BNA – “Builders Get 30-Day Break-In Period for Silica Rule”
June 19, 2017 – Bloomberg BNA – “Defibrillators Can Save Lives, but Will Employers Take the Leap?”
December 1, 2016 – Aggregate Research – “Judge denies injunction against OSHA anti-retaliation rule”
November 2, 2016 – SHRM Online – “Controversial Provisions Added to OSHA’s Proposed Modernization Updates”
July 26, 2016 – SHRM Online – “OSHA Delays Controversial Anti-Retaliation Enforcement”
May 12, 2016 – Law360 – “5 Employer Worries Raised By OSHA’s New Injury Rule”
March 9, 2016 – Bloomberg BNA – “OSHA Officials Stress Enforcement at ABA Meeting”
January 13, 2016 – Bloomberg BNA Occupational Safety & Health Reporter – “No Surprises in 2016 OSHA Chief Michael Says”
November 30, 2015 – Bloomberg BNA – “Law Firms Expect More Business When OSHA Fines Rise”
November 9, 2015 – Bloomberg BNA Occupational Safety & Health Daily – “Violation Penalty Increases Likely for State OSHA Plans”
February 17, 2015 – BNA Daily Labor Report – “New OSHA Reporting Rule Enforcement Procedures Raise Employers’ Concerns”
June 13, 2014 – Law360 – “Female Powerbrokers Q&A Ogletree Deakins' Melissa Bailey”
May 9, 2014 – SHRM.org – “How to React When a Union Rep Shows Up with OSHA”
April 23, 2014 – Law360 – “Gender Equality A No-Brainer For Employment Firms”
March 13, 2014 – BNA Construction Labor Report – “Employer Attorneys Say OSHA Inspectors Need Better Training on Combustible Dust”
February 27, 2014 – Law360 – “8 Tips For Employers When OSHA Comes Calling”
October 29, 2013 – Thomson Reuters – “SeaWorld Appeal Could Force Taming of its Popular Orca Shows After Trainer's Death”
March 17, 2011 – BNA's Occupational Safety and Health Reporter – “Michaels Defends Use of Press Releases to Spur Employers to Eliminate Hazards”
January 1, 2011 – Law360 – “Labor and Employment Regulation to Watch in 2011”
November 25, 2010 – BNA's Occupational Safety & Health Reporter – “Landrieu Bill to Reduce Burden on Small Business Could Affect Rules, Analysts Say”
April 8, 2010 – BNA's Occupational Safety & Health Reporter – “Business Voices Objections to OSHA's Draft Severe Violators Enforcement Program”
October 22, 2009 – BNA's Occupational Safety and Health Reporter – “Embalming Fluid Maker Fined $138,000 for Formaldehyde Exposure, PSM Violations”
June 4, 2009 – BNA's Occupational Safety and Health Reporter – “OSHA Prepares National Emphasis Program for Chemical Manufacturers, Sources Say”
May 11, 2009 – SHRM.org – “Most Frequent Swine Flu Legal Questions Answered”
March 5, 2009 – BNA's Occupational Safety and Health Reporter – “House Democrats May Soon Introduce New Version of the OSHA Reform Act”
February 19, 2009 – BNA's Occupational Safety and Health Reporter – “President Obama Signs Stimulus Bill With Increased Funding for OSHA”
February 12, 2009 – BNA's Occupational Safety and Health Reporter – “Senate Changes to Stimulus Package Reduce Funding for OSHA, Safety Programs”
January 29, 2009 – BNA's Occupational Safety and Health Reporter – “House Stimulus Bill Contains New Appropriations for OSHA, NIOSH”
January 8, 2009 – BNA's Occupational Safety and Health Reporter – “Safety Advocates Applaud Solis Nomination As Positive Step to Protect Worker Safety”
August 21, 2008 – BNA's Occupational Safety and Health Reporter – “OSHA Targets 40 Specific Industries In Revised Emphasis Program for Lead”
May 12, 2008 – SHRM.org – “Most Frequent Swine Flu Legal Questions Answered”
2007 – National Public Radio's Market Watch – “OSHA enforcement trends”
July 2, 1997 – BNA's Occupational Safety and Health Reporter – “Watchman Defends Safety Program Rule; Employer Groups Cite Enforcement Concerns”

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Melissa A. Bailey

Shareholder | Washington

More About Melissa A. Bailey

Experience

Education & Admission

Education

Admission to Practice

Professional Activities

Speeches

Published Works

Media Quotes

Honors & Awards

Insights by Melissa A. Bailey

Are OSHA’s Enforcement Policies Making It More Difficult to Settle Cases? Considerations for Employers

Supreme Court Stays OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard

Supreme Court Hears Oral Argument on OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard and CMS Vaccine Rule

Sixth Circuit Dissolves the Stay of OSHA’s COVID-19 Emergency Temporary Standard and OSHA Issues New Compliance Deadlines

OSHA Issues COVID-19 Emergency Temporary Standard: Employers With 100+ Employees Must Ensure Workers Are Either Vaccinated or Tested Weekly

OSHA Issues New COVID-19 Guidance for All Industries Not Covered by Its ETS for Healthcare

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