[BONUS WEBINAR] Employment Law and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers

Daniel C. Deacon Leave a comment

On Monday, March 30, 2020 at 1 PM Eastern, join Eric J. Conn, Kara M. Maciel, and Daniel C. Deacon of the law firm Conn Maciel Carey for a complimentary webinar: “HR and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers.”

There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” The World Health Organization declared a global pandemic, President Trump initiated a National Emergency Order, and state and local officials have been ordering shutdowns of non-essential businesses and mandatory shelter-in-place orders. Furthermore, Congress passed emergency legislation that temporarily requires employers to provide paid sick and family leave and the Department of Labor has issued guidance on how employers should comply with employment and workplace safety laws.

Local craft breweries, distilleries, and wineries have been deemed essential businesses under current federal and state directives, such as the Virginia and Maryland governors March 23, 2020 orders, but the traditional way of doing business has changed considerably. These changes have raised numerous questions regarding how small businesses can successfully operate while complying with these new requirements.

During this webinar, participants will learn about Continue reading →

COVID-19 Pandemic FAQs – What Do Stay-At-Home / Shelter-In-Place Orders Mean For Employers?

Megan Shaked Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Governors across the nation have signed various “stay-at-home” or “shelter-in-place” orders in an increased effort to slow the spread of COVID-19.  Many cities and counties have also signed such orders as well, including in states with no statewide order in place. COVID These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.

Spotlight: California

On March 19, 2020, California Governor Gavin Newsom signed an emergency order requiring all individuals living in California “stay home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”  Californians may continue working for such critical infrastructure sectors and any other industries the governor designates as critical.  The emergency order cites to federal guidance on the federal critical infrastructure sectors, which identifies the 16 critical infrastructure sectors including critical manufacturing, food and agriculture, transportation, energy, healthcare and emergency services.

The emergency order references a March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued by the U.S. Department of Homeland Security, which includes more detailed descriptions of categories of workers falling under each of the identified critical infrastructure sectors.  Some of the other state orders also rely on this federal guidance on “essential critical infrastructure workers” in defining the critical business that may continue to operate under the orders.

Californians may Continue reading →

COVID-19 Pandemic FAQs – OSHA Injury and Illness Recordkeeping and Reporting

Lindsay A. DiSalvo Leave a comment

By Eric J. Conn and Lindsay A. Disalvo

There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions in recent days is the requirement to record and/or report work-related cases of COVID-19.  Below are two FAQs that describe the relevant analysis in more detail.

  • Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):CV19

“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).”

The rationale for the exemption is that the spread of the cold and flu are so pervasive that it is typically near impossible to identify the source of infection; i.e., there would be no reasonable way to determine whether it was more likely than not that the illness was caused by an exposure in the workplace.

Despite great sacrifice around the country, the scale of infection of COVID-19 is expected to soon spread like the flu and common cold, but OSHA has already expressed in guidance that COVID-19 is not subject to the cold/flu recordkeeping exemption:

“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

Industry has been advocating to OSHA to have the agency reconsider that initial declaration, but it does not appear OSHA will be exempting this novel strain of Coronavirus from the recordkeeping and reporting requirements any time soon.  OSHA has been maintaining a Safety and Health Topics page for COVID-19 and separate Guidance on Preparing Workplaces for COVID-19 that it updates periodically as more information becomes available.  In its most recent update to guidance, OSHA appeared to Continue reading →

[Webinar Recording] How Employers Can Respond to COVID-19 and Frequently Asked Questions

Theresa Green 1 Comment

On Tuesday, March 17, 2020 at 2:30 PM Eastern, Eric J. Conn, Kara M. Maciel, Amanda R. Strainis-Walker, and Lindsay A. DiSalvo presented a complimentary webinar regardingOSHA Employment Crossover Webinar (Dec. 2019) “How Employers Can Respond to COVID-19 and Frequently Asked Questions.”
There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Today, the world health organization declared a global pandemic and there are over 1000 confirmed cases in the United States.

Participants in this webinar learned about recent developments and federal legal guidance including: Continue reading →

[Bonus Webinar] How Employers Can Respond to COVID-19 and Frequently Asked Questions

Theresa Green Leave a comment

On Tuesday, March 17, 2020 at 2:30 PM Eastern, Eric J. Conn, Kara M. Maciel, Amanda R. Strainis-Walker, and Lindsay A. DiSalvo will present a complimentary webinar regardingOSHA Employment Crossover Webinar (Dec. 2019) “How Employers Can Respond to COVID-19 and Frequently Asked Questions.”
There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Today, the world health organization declared a global pandemic and there are over 1000 confirmed cases in the United States.

Participants in this webinar will learn Continue reading →

March Update on How Employers Can Respond to COVID-19 with FAQs

Eric J. Conn 2 Comments

By:  Kara M. Maciel and Beeta B. Lashkari

COVID

 

Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington.  Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.

Recent Developments and Federal Guidance

  • CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance.  Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

Continue reading →

Pres. Trump’s Latest Effort to Limit Federal Agency Guidance – Two New Executive Orders

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

Late last year, on October 9, 2019, President Trump issued two Executive Orders (“EOs”) that could have a dramatic impact on the way OSHA and other executive agencies operate:

  1. Executive Order 13891, the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents (Guidance Documents EO); and
  2. Executive Order 13892, the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Transparency EO).

These EOs were designed to, according to the President:

“protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people. . .”

In a nutshell, the Guidance Documents EO mandates that the public be provided with an opportunity to comment on proposed guidance and interpretive documents (similar to what is required under the Administrative Procedures Act for rulemaking).  It requires notice and publication of guidance, and the creation of a comprehensive online database where all such guidance must be housed and easily searched.

The Transparency EO focuses on agency enforcement actions.  Most significantly, it requires agencies to provide all parties potentially subject to an enforcement action the opportunity to engage with the agency over the merits of the action prior to commencement of the enforcement action. It also:

  1. prevents agencies from enforcing standards that are not public and that would cause unfair surprise to the regulated entity (i.e., no enforcement relying on guidance documents that are not created and maintained pursuant to the Guidance Documents EO);
  2. requires the publication of any potential new or expanded jurisdiction in the Federal Register;
  3. mandates the development of procedures for encouraging voluntary self-reporting in exchange for penalty reductions; and
  4. requires that agencies adhere to standards in the Paperwork Reduction Act when asking regulated parties for information without a formal subpoena or investigative demand.

The two new Executive Orders align with the President’s business-friendly agenda, making it more difficult for regulators to engage in backdoor rulemaking (i.e., supplementing or changing regulations via the issuance of guidance documents developed without public input), and easier for businesses to keep track of the regulatory requirements with which they must comply, and to head off enforcement actions before they begin.

How will the Executive Orders change the OSH regulatory landscape, and what should employers expect next? Continue reading →

BREAKING – CSB Issues Final Accidental Release Reporting Rule

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta Lashkari

Last week, on the day of a federal district court-mandated deadline — Wednesday, February 5, 2020 — the Chemical Safety and Hazard Investigation Board (the CSB) announced its Final Rule on Accidental Release Reporting. The CSB posted a prepublication version of the Final Rule last week, on February 5th.  The official version should be published in the Federal Register within the next few days.

As we previously reported, on December 12, 2019, the CSB issued a Notice of Proposed Rulemaking for its new reporting rule, which set out the circumstances when facility owners and operators are required to file reports with the CSB about certain accidental chemical releases and what must be communicated in the reports.Picture1

As stated in the NPRM, the purpose of the rule is “to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”

The rule requires owners and operators of stationary sources to report accidental releases that result in a fatality, a serious injury, or substantial property damage to the CSB within eight hours.  The specific information required to be provided in the accidental release report includes:

  1. A brief description of the accidental release;
  2. Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
  3. The number of fatalities and/or serious injuries, and the estimated property damage at or outside the stationary source;
  4. The name of the material involved;
  5. The amount of the release; and
  6. Whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.

Issuance of the CSB’s reporting rule has been a long time coming.  Although the CSB did not become operational until 1998, its enabling legislation – the Clean Air Act Amendments – was enacted in 1990.  That statute, from nearly thirty years ago, expressly required the agency to issue a rule governing the reporting of accidental releases to the CSB.  Although the CSB submitted an Advanced Notice of Proposed Rulemaking for Chemical Release Reporting in 2009, that effort died on the vine.  Accordingly, the CSB has never had its own reporting rule, relying instead on other sources to receive incident information.  In February 2019, however, Continue reading →

How Employers Should Respond to the 2019 Novel Coronavirus Outbreak

Beeta B. Lashkari Leave a comment

By Kara M. Maciel and Beeta B. Lashkari

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States.  On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV.  Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus.

Continue reading →

REMINDER: February 1, 2020 Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work-Related Injuries: 5 Common Mistakes Employers Make

Eric J. Conn Leave a comment

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).  The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Note that February 1st falls on a Saturday this year, but that does not affect the deadline to post.  So, if there will be noone present at your workplace to make the posting on that Saturday, be sure to get your 300A posted by Friday, January 31st.

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2019) is March 2, 2020.  Click here for more information about OSHA’s E-Recordkeeping Rule.

By February 1st every year, covered employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Logs are complete and accurate;
  • Correct any deficiencies identified on the 300 Logs;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
  • Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following five mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading →

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

Eric J. Conn 3 Comments

We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history. 

To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click here to send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.

We are exploring CLE approval for this series.  If you are interested in CLE or other forms of Continuing Education credits, click here to complete a survey.

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd
All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd
OSHA Settlement
Tips And Strategies

Tuesday, February 25th
Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th
Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th
Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd
Annual Cal/OSHA Update

Thursday, April 16th
Impact of the Election on OSHA

Thursday, October 22nd
E-Recordkeeping and
Injury Reporting Update

Wednesday, May 20th
Updates about OSHA’s PSM
Standard and EPA’s RMP Rule

Tuesday, November 17th
OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th
Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event. Continue reading →

2020 Legislative Update for California Employers

Megan Shaked Leave a comment

shutterstock_San Francisco 4847-6656-4719 v12019 has produced a long list of new employment laws on a myriad of topics that will bring significant changes for California employers in 2020.  Workplace safety laws range from a revamped reporting requirement to a new wildfire smoke regulation.  Additional laws affecting employers include a new test for determining independent contractor status, a ban on no rehire agreements and many more.  Though many of these laws will add items to the employer to-do list, employers have at least secured a one-year reprieve for completing mandatory harassment prevention training introduced last year.

Key changes affecting private sector employers are summarized below.  Unless otherwise indicated, these new laws take effect January 1, 2020.

Continue reading →

Coalition to Comment on CSB’s Proposed Accidental Release Reporting Rule

Eric J. Conn Leave a comment

Last week, the CSB issued a Notice of Proposed Rulemaking for its accidental release reporting rule, which establishes the criteria for when facility owners and operators are required to report to CSB accidental chemical release incidents and what must be included in those reports.  Here is a link to an article we posted that summarizes the CSB’s proposal and background about the situation. If promulgated, the rule would require owners and operators of stationary sources to report to the CSB within four hours any accidental chemical releases that results in a:

  • Fatality;
  • Serious injury; or
  • Substantial property damage.

A release reporting rule was mandated by the CSB’s enabling statute (decades ago), but the Agency had never issued such a rule. In February of this year, however, a federal court ordered the CSB to promulgate a final reporting rule within 12 months of the  court’s ruling—by mid-February 2020.  With CSB waiting until the 11th hour to publish this NPRM, interested stakeholders have only a very small window to make sure their concerns about the proposed rule are heard.  Comments are due to the CSB by January 13, 2020, and because the deadline to promulgate the rule is court-mandated, there likely will be no extension of the comment period.

Although the proposal indicated that CSB contemplated some of the duplicative effort that a separate CSB reporting rule would require, the proposed rule does not come close to addressing employers’ legitimate concerns about the burden this reporting requirement will place on employers at a time when their attention should be focused on emergency response. To compound the problem, the scope of reportable incidents and criteria for reportability aligns neither with CSB’s investigative jurisdiction nor with other agencies’ already-existing reporting requirements, and, as formulated, could create disincentives for robust internal reporting of incidents.

Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group is coordinating an ad hoc coalition of employers to prepare a set of comments to submit to the CSB. Continue reading →

CSB Issues Notice of Proposed Rulemaking for New Accidental Release Reporting Rule

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

Earlier this week, on December 12, 2019, the U.S. Chemical Safety and Hazard Investigation Board (CSB) issued a Notice of Proposed Rulemaking (NPRM) for its long-awaiting chemical incident reporting rule, which sets out the circumstances when facility owners and operators are required to file reports with the CSB of accidental chemical releases and what must be communicated in the reports.

As stated in the NPRM, the purpose of the rule is “to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”

If promulgated, the rule would require owners and operators of stationary sources (chemical facilities) to report  accidental releases that result in a fatality, serious injury, or substantial property damage to the CSB within four hours.  The proposed rule also identifies the specific information required to be included in the accidental release report:

  1. A brief description of the accidental release;
  2. Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
  3. The number of fatalities and/or serious injuries, and the estimated property damage at or outside the stationary source;
  4. The name of the material involved;
  5. The amount of the release; and
  6. Whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.

Importantly, recognizing that some or all of this information may not be known within four hours of an accidental release, the CSB decided to  include the qualifier — “if known” — for much of the information that would be required in the report.

If, however, the owner/operator submits a report to Continue reading →

[Webinar] Workplace Violence and Sexual Harassment – OSHA and Employment Law Issues

Theresa Green Leave a comment

On Tuesday, December 17, 2019 at 1:00 PM Eastern, Aaron R. Gelb, Lindsay A. DiSalvo and Megan Shaked will present a complimentary webinar regarding “Workplace Violence and Sexual Harassment – OSHA and Employment Law Issues.”

shutterstock_1020645115.jpg

Nearly 2 million American workers report being victims of workplace violence each year, and many cases go unreported. At the same time, the #MeToo movement has brought renewed focus on sexual harassment in the workplace. While there are no OSHA standards for workplace violence or sexual harassment, the General Duty Clause requires employers to provide employees a place of employment free from recognized serious hazards. Over the years, OSHA has issued General Duty Clause citations to employers after incidents of workplace violence or harassment.

​Recently, one OSHA Regional office initiated an inspection after a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  The EEOC, meanwhile, continues to focus on sexual harassment, having recovered nearly $70 million for employees claiming sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.  The question remains, however, whether OSHA will expand efforts to investigate and/or address sexual harassment, particularly in those workplaces where it is foreseeable or preventable.

Participants in this webinar will learn: Continue reading →

OSHA Issues Additional Respirator Fit Testing Protocols to Provide More Flexibility for Employers

Daniel C. Deacon Leave a comment

By Dan Deacon and Eric J. Conn

On September 26, 2019, OSHA issued a new Final Rule providing employers with new options for fit testing protocols to comply with OSHA respiratory protection requirements designed to protect workers from airborne contaminants.  More specifically, the new Rule, entitled “Additional Ambient Aerosol CNC Quantitative Fit Testing Protocols: Respiratory Protection Standard,” establish two additional methodologies for respiratory fit testing:

  1. a modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators; and
  2. a modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators.

The rule became effective September 26, 2019.

Both new protocols are abbreviated variations of the original OSHA-approved ambient aerosol CNC quantitative fit testing protocol (often referred to as the PortaCount protocol), and differ from the test by the exercise sets, exercise duration, and sampling sequence. The protocols serve as alternatives to the four existing quantitative fit testing protocols already listed in the Mandatory Appendix A of OSHA’s Respiratory Protection Standard:

  1. generated aerosol;
  2. ambient aerosol condensation nuclei counter (CNC);
  3. controlled negative pressure (CNP); and
  4. controlled negative pressure REDON.

The intent of the Rule is to Continue reading →

[Webinar] Process Safety Update: The Latest with OSHA’s PSM Standard and EPA’s RMP Rule

Eric J. Conn Leave a comment

On Tuesday, November 19, 2019 at 1:00 PM Eastern, join Eric J. Conn, Amanda Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice for a complimentary webinar regarding “Process Safety Update: The Latest with OSHA’s PSM Standard and EPA’s RMP Rule.”

​Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical process safety. OSHA and EPA took (or at least initiated) sweeping actions in response to the Executive Order, from enforcement initiatives (like a new wave of Refinery and Chemical Facility PSM National Emphasis Program inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

When President Trump took office with a de-regulatory agenda, the regulated community was left wondering what this meant for these changes to process safety regulations. But rather than a continued wave of action, the momentum splintered, with some initiatives proceeding, others coming to a halt, and others still being pared back. We saw immediate delays and the beginning of rollbacks of new process safety regulations, yet enforcement initiatives appeared to move forward unhindered. And now, with two years of the Trump Administration in the books, it is still unclear where the regulatory landscape will settle.

This webinar will review the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, as well as other major process safety developments from the federal government, state governments, and industry groups.

Specifically, participants in this webinar will learn about: Continue reading →

Everything You Need to Know About OSHA’s Health and Chemical Exposure Standards [Webinar Recording]

Kate M. McMahon Leave a comment

On October 22nd, Kate McMahon, Amanda Walker, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding “Everything You Need to Know about OSHA’s Health and Chemical Exposure Standards.”

In addition to OSHA’s myriad Safety regulations, the agency has also promulgated approx. 30 comprehensive Health standards, and established air exposure limitations for an additional 500 common chemicals present in U.S. workplaces, such as asbestos, lead, and silica.  Knowing when and how to conduct monitoring is complex, and the chemical sampling data collected can be a double-edged sword.  This webinar helped employers understand and comply with the requirements of OSHA’s occupational health standards, provided useful guidance and tips on the types and frequency of air monitoring or other chemical sampling that may be required at your facilities, and the programs to implement if you do experience exposure levels above the minimum regulatory thresholds (or other industry consensus thresholds). 

Specifically, participants in this webinar will learned about: Continue reading →

2nd Annual Process Safety Summit in Washington, DC – October 15-16, 2019

Eric J. Conn Leave a comment

Register today for the 2nd Annual Process Safety Summit in Washington, DC on October 15-16, 2019.

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC is an annual event in our nation’s Capital.  The Inaugural Summit last Fall welcomed more than 175 safety and legal professionals from stakeholders in the chemical, petrochemical, paper, and petroleum refining industries and other industries with operations covered by OSHA’s PSM Standard and EPA’s RMP Rule. The Summit focuses on the process safety regulatory landscape and industry best practices, with programming that covers rulemaking, enforcement programs, significant cases, trends as we move through the Trump Administration, best practices, and other key process safety regulatory issues impacting Industry.

The Agenda and format for the 2nd Annual Process Safety Summit in Washington, DC will include one-of-a-kind line-up of speakers and panels of senior government officials and industry experts, as well as moderated round table sessions.  The event is broken into two parts:

  1. A half-day of confidential breakout sessions with Industry stakeholders and a networking cocktail reception on October 15th; followed by
  2. A full-day of panels and speakers from OSHA, EPA, the OSH Review Commission, Former Heads of OSHA, the CSB, and others on October 16th.

​This Summit Continue reading →

EPA Sends Final RMP Rollback Rule to OMB for Review

Beeta B. Lashkari Leave a comment

By Micah Smith, Eric J. Conn and Beeta Lashkari

Last week, on September 12, 2019, EPA sent its Final RMP Rollback Rule to the White House Office of Management & Budget (OMB) for pre-publication review.  The rule is expected to roll back many of the Obama-era RMP Amendment Rule that added to and enhanced numerous RMP requirements, which was finalized and published in the Federal Register three days before President Trump’s Inauguration.  

This new near-final RMP Rollback Rule comes after a long and tortured rulemaking and litigation history in which President Obama’s EPA rushed out the RMP Amendments Rule, President Trump’s EPA attempted to delay the RMP Amendments Rule, those attempts were defeated in federal court, and then EPA quickly finalized the current rulemaking with anticipated roll-backs.  Here is a quick summary of that history: Continue reading →

OSHA’s Electrical Safety Standards: 5 Reasons to Get it Right and 10 Common Mistakes [Webinar Recording]

Micah Smith Leave a comment

On September 24, 2019, Micah Smith, Aaron Gelb, and Dan Deacon of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding “OSHA’s Electrical Safety Standards: 5 Reasons to Get it Right and 10 Common Employer Mistakes.”

Electrical safety has long been an enforcement priority for OSHA. OSHA’s electrical standards are designed to protect employees against hazards of electric shock, electrocution, flash fires, and explosions.  Often, workers and/or their employers are unaware of the potential electrical hazards present in their work environment, and even more often, they are unfamiliar with the nuances of OSHA’s regulatory requirements in this area.This webinar will highlight the top 5 reasons it is critical for employers to get compliance with OSHA’s electrical safety standards right, explain the 10 most misunderstood and misapplied provisions of the applicable OSHA standards, and discuss strategies to limit exposure to the most common electrical safety violations.

Specifically, participants in this webinar learned: Continue reading →

BREAKING: Cal/OSHA Overhauls Reporting Requirements for Serious Injuries

Andrew J. Sommer 5 Comments

By Andrew Sommer and Megan Shaked

The California Division of Occupational Safety and Health (Cal/OSHA) just announced major changes to the definition of “serious injury or illness” for purposes of California employers’ duty to report certain serious workplace injuries to Cal/OSHA.  Pursuant to Cal. Labor Code Sec. 6409.1(b), in every case involving a work related death or a serious injury or illness, the employer must “immediately” make a report to Cal/OSHA.  Employers may be cited and subject to penalties for failure to make such reports, and reporting such incidents almost always leads to a site inspection by Cal/OSHA, which in turn most often results in Serious or Serious Accident-Related citations.

Cal/OSHA’s prior, longstanding reporting rule defined “serious injury or illness” as any injury or illness occurring in a place of employment or in connection with any employment that requires in-patient hospitalization for a period in excess of 24 hours for treatment other than medical observation, or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.  The old definition excluded injuries or deaths caused by the commission of a Penal Code violation (e.g., an intentional assault and battery), or an auto accident on a public street or highway.

On August 30, 2019, California passed Assembly Bill (AB) 1805 to revise the definition of a “serious injury or illness” for reporting purposes. The changes appear to be designed to bring Cal/OSHA’s reporting requirement more (but not entirely) in line with fed OSHA’s hospitalization and amputation reporting rule.  Specifically, Cal/OSHA’s new reporting requirements: Continue reading →

In-Person OSHA, MSHA, and Labor Briefing (and Launch Party) in Columbus, OH – October 1, 2019

Eric J. Conn Leave a comment

Join Conn Maciel Carey for an In-Person OSHA, MSHA, and Labor Briefing in Columbus, OH on Tuesday, October 1, 2019, and stay for a cocktail reception to celebrate the launch of our new Columbus, Ohio Office.

This complimentary program will feature panel discussions with current and former representatives from the National Labor Relations Board, OSHA and MSHA addressing key enforcement and regulatory developments.  The government representatives will be joined by senior corporate counsel from several multi-national corporations and Conn Maciel Carey’s Labor & Employment and Workplace Safety Law specialist attorneys.  The plenary sessions will cover topics including:

  • OSHA policy and enforcement developments
  • NLRB rulemaking and Board case law updates
  • MSHA regulatory and enforcement priorities
  • Other trending topics (joint-employer, pension withdrawal liability, whistleblower / anti-retaliation claims)

There will also be breakout sessions with discussions led by CMC attorneys covering issues of particular concern to various industry segments.

Here is the current agenda for the event:

The briefing Continue reading →

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

Megan Shaked Leave a comment

By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes.  Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.

In reaching its decision, the Court Continue reading →

Joint-/Multi-Employer, Temps, and Contractor OSHA and Employment Law Issues [Webinar Recording]

Lindsay A. DiSalvo Leave a comment

On August 13, 2019, Jordan Schwartz, Eric J. Conn and Lindsay Disalvo of Conn Maciel Carey presented a webinar regarding “Joint- and Multi-Employer, Independent Contractor, and Temp Labor OSHA and Employment Law Issues.”

Employment relationships can take many forms, and employers’ perceptions of their legal responsibilities for certain workers is not always reality. An employer may classify workers as temporary or independent contractors, but that does not mean DOL will agree. This is particularly challenging due to continuous changes in the law relating to these types of employment relationships.

One particular area in flux over the past several years has been the joint-employer standard, significantly expanding in the Obama-era NLRB decision in Browning-Ferris, but in the wake of change through an ongoing NLRB rulemaking. Similarly, the boundary between employees and independent contractors has also been a moving target. Although the prior administration took the view that a majority of workers are employees in its guidance to employers, the Trump Admin. has signaled a change in direction.

Even where there is not a legal employer-employee relationship, companies may have certain safety and health obligations and potential liabilities depending on their role at multi-employer worksites or the use of temporary workers. Protecting temporary workers and enforcing the responsibilities of host employers and staffing agencies was a priority of OSHA in the Obama Admin. through a Temporary Worker Initiative that continues today.  OSHA has also continued to defend its multi-employer worksite enforcement policy through legal challenges.

Specifically, participants in this webinar learned:

Continue reading →