OSHA Initiates Rulemaking to Revive Union Participation in OSHA Inspections at Non-Union Workplaces

Eric J. Conn Leave a comment

By Aaron Gelb, Eric Conn, and Ashley Mitchell

Consistent with the Biden Administration’s promise to be “the most labor friendly administration” in history,” OSHA recently announced plans to publish a notice of proposed rulemaking (“NPRM”), as early as this Spring, to amend 29 CFR 1903.8(c), which is the regulation governing the rights to participate in OSHA inspections by non-employees of the inspected employer.

OSHA-savvy employers may remember that OSHA tried during the Obama/Biden Administration to give union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013, commonly referred to as “the Fairfax Memo.”  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

The question must be considered in the context of the existing regulatory text of 29 C.F.R. 1903.8(c):

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding a pretty clear regulatory limitation to third party inspection participation rights, OSHA’s responded to the unions interpretation request in the affirmative, explaining that notwithstanding: Continue reading →

[Webinar] Strategies for Responding to Whistleblower / Retaliation Complaints

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On Tuesday, March 21, 2023 at 1 p.m. EST, join Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight for a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn: Continue reading →

OSHA Announces VPP Modernization Project

Beeta B. Lashkari Leave a comment

On February 16, 2023, OSHA announced that it is inviting the public and workplace safety stakeholders to share their comments to assist the agency as it modernizes and enhances its Voluntary Protection Program (“VPP”).  The deadline for comments is April 14, 2023.

Established in 1982, OSHA’s VPP is a program that recognizes workplaces that demonstrate best practices in safety and health management and serve as industry models.  VPP generally requires employers to implement “effective” safety and health management systems (“SHMS”) programs as certified by OSHA, and maintain recorded injury and illness rates below the Bureau of Labor Statistics averages for their sectors.  Once admitted to the program, an employer is exempt from “programmed” OSHA inspections, though VPP participants must be recertified every three to five years.

Per OSHA, “VPP is effective at reducing injuries and illnesses at participant worksites.”  For example, the average VPP worksite had a Days Away Restricted or Transferred (“DART”) case rate of 53% below the average for its industry for non-construction participants and 60% below the average for its industry for site-based construction and mobile workforce participation for 2020 (calculated annually by the Office of Partnership and Recognition and based upon the injury and illness data submitted every year by the VPP participants).  These lower than industry rates have been documented since 2001, showing, per OSHA, that “VPP has consistently reduced injury and illness rates in both construction and non-construction VPP worksites for two decades compared with the national average.”

Nonetheless, OSHA states that: Continue reading →

OSHA’s Local Emphasis Program for Midwest Food Manufacturers [Webinar Recording]

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On Wednesday, March 1, 2023, Conn Maciel Carey hosted a special bonus webinar in our 2023 OSHA Webinar Series regarding OSHA’s LEP for Midwest Food Manufacturers.

Presented by
Conn Maciel Carey LLP with Special Guest

 Steve Hawkins
(Former Head of Tennessee OSHA)

OSHA is now conducting inspections in Illinois (and Ohio) as part of a new Local Emphasis Program (LEP) for the Food Manufacturing Industry announced in late 2022. This LEP empowers Illinois OSHA offices to inspect food manufacturing and processing sites with a focus on machine guarding hazards, the employer’s hazardous energy control program, and the sanitation program (hazard communication and Group LOTO). OSHA has the ability under this LEP to conduct inspections for all referral and complaints, formal or non-formal, which contain allegations of potential worker exposure to serious hazards associated with operating food production machinery or performing service, maintenance, and sanitation tasks on food processing and ancillary equipment.

Establishments can be selected for an inspection even if they have an exemplary safety record, have not been the subject of any complaints, and have not recently reported a serious incident. This discussion covered what to expect and how to prepare your company for an OSHA inspection.

Attendees heard directly from FDR Safety’s Steve Hawkins, former Head of Tennessee OSHA, and Aaron Gelb, Head of Conn Maciel Carey’s Midwest OSHA Practice. Together they answered the following questions: Continue reading →

CMC Spotlight Series: Meet Mark Trapp!

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As a Partner in Conn Maciel Carey’s Chicago office, Mark Trapp specializes in labor and employment law with our Employment Practice Group.  He arbitrates, litigates, and advises clients on multiemployer pension funds and withdrawal liability issues, as well as labor relations, union elections, and collective bargaining. He also handles various types of employment litigation and grievance arbitrations. Between 2014 and 2017, Mark was recommended in the Labor-Management Relations category by The Legal 500 United States and has been selected to Super Lawyers from 2020 to 2023.

Get to Know Mark!

Mark FamilyWhere is your favorite vacation spot?

My family doesn’t have one specific favorite. My wife is from Mexico, so we celebrate each daughter’s quinceañera—a traditional celebration of a girl’s fifteenth birthday. But instead of having the usual party, we decided to let them choose anywhere they wanted to go and make it a special trip just for them. So far, we’ve had three daughters reach that milestone. We’ve traveled to London and Hawaii, and we enjoyed a Disney cruise. Our youngest daughter is approaching 15, and we can’t wait to see what she chooses. She’s leaning toward Alaska, but she’s not sure.

We’ve also been camping in Gettysburg many times, including during the 150th anniversary of the Battle of Gettysburg. It’s a great place for hiking and history.

What was your first job? Continue reading →

[Webinar] OSHA’s Local Emphasis Program for Midwest Food Manufacturers

Theresa Green Leave a comment

On Wednesday, March 1, 2023 at 10 a.m. CST / 11 a.m. EST, join us for a special bonus webinar in Conn Maciel Carey’s 2023 OSHA Webinar Series regarding OSHA’s LEP for Midwest Food Manufacturers.

Presented by
Conn Maciel Carey LLP with Special Guest

 Steve Hawkins
(Former Head of Tennessee OSHA)

OSHA is now conducting inspections in Illinois (and Ohio) as part of a new Local Emphasis Program (LEP) for the Food Manufacturing Industry announced in late 2022. This LEP empowers Illinois OSHA offices to inspect food manufacturing and processing sites with a focus on machine guarding hazards, the employer’s hazardous energy control program, and the sanitation program (hazard communication and Group LOTO). OSHA has the ability under this LEP to conduct inspections for all referral and complaints, formal or non-formal, which contain allegations of potential worker exposure to serious hazards associated with operating food production machinery or performing service, maintenance, and sanitation tasks on food processing and ancillary equipment.

Establishments can be selected for an inspection even if they have an exemplary safety record, have not been the subject of any complaints, and have not recently reported a serious incident. Join us for this discussion about what to expect and how to prepare your company for an OSHA inspection.

Attendees will hear directly from FDR Safety’s Steve Hawkins, former Head of Tennessee OSHA, and Aaron Gelb, Head of Conn Maciel Carey’s Midwest OSHA Practice. Together they will answer the following questions: Continue reading →

Annual Cal/OSHA Enforcement & Regulatory Update [Webinar Recording]

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On Thursday, February 23, 2023, the attorneys in CMC’s Cal/OSHA Practice Group presented a webinar regarding an Annual Cal/OSHA Enforcement & Regulatory Update.

Cal/OSHA and the California legislature have continued to focus their efforts on extending workplace mandates associated with COVID-19, heat illness and wildfire smoke. This update will cover the transition from Cal/OSHA’s COVID-19 Emergency Temporary Standard to the Non-Emergency COVID-19 Rule as well as other workplace safety mandates that have been recently adopted or are under consideration.

Participants in this webinar learned: Continue reading →

[Webinar] Annual Cal/OSHA Enforcement & Regulatory Update

Theresa Green Leave a comment

On Thursday, February 23, 2023 at 10 a.m. PST / 1 p.m. EST, join the attorneys in CMC’s Cal/OSHA Practice Group for a webinar regarding an Annual Cal/OSHA Enforcement & Regulatory Update.

Cal/OSHA and the California legislature have continued to focus their efforts on extending workplace mandates associated with COVID-19, heat illness and wildfire smoke. This update will cover the transition from Cal/OSHA’s COVID-19 Emergency Temporary Standard to the Non-Emergency COVID-19 Rule as well as other workplace safety mandates that have been recently adopted or are under consideration.

Participants in this webinar will learn: Continue reading →

OSHA Expands “Instance by Instance” Citation Policy: A Game Changer for OSHA Enforcement

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By Eric J. Conn and Darius Rohani-Shukla

On January 26, 2023, OSHA revealed to the public two enforcement memoranda that it had issued to its field offices and all of the State OSH Plans that will substantially sharpen OSHA’s enforcement teeth and increase the pain OSHA can inflict on employers across the country.  Specifically, OSHA dramatically expanded the circumstances when it can issue “instance-by-instance” citations to employers, and also discouraged the grouping of similar citations under a single penalty.

Instance-by-Instance (IBI), or per-instance enforcement is one of OSHA’s most powerful tools to ratchet up civil penalties.  It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties; i.e., train each employee, guard each machine, require a hard hat for each employee, etc.  As a result, rather than a single citation with a single penalty for an employers’ failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.

Historical Per-Instance Enforcement

OSHA’s IBI enforcement policy was first memorialized in 1990 in an enforcement directive called “Handling of Cases to be Proposed for Violation-By-Violation Penalties.”  This policy came to be known as OSHA’s Egregious Enforcement Policy because OSHA’s policy was to use it only in circumstances involving conduct found by OSHA to be worse than just willful.  Specifically, under this long-standing willful-plus standard, OSHA issued per-instance citations when violations were found both to be willful and also to meet one of the following criteria: Continue reading →

Timing for OSHA to Finalize the Amended E-Recordkeeping Rule Is Becoming More Clear

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By Dan C. Deacon and Eric J. Conn

We have a quick update for you about OSHA’s rulemaking to expand the Electronic Recordkeeping Rule.  Throughout the last year, OSHA’s intent to finalize this rule ahead of the next deadline for employers to submit E-Recordkeeping data (i.e., well ahead of March 2023) was clear, but that will not be the case.  OSHA delayed finalizing the proposed revisions to the E-Recordkeeping Rule several times.  The delays have now prompted further litigation by a pro-worker activist group in furtherance of a challenge initiated during the Trump Administration to the rollback of the E-Recordkeeping rule by Trump’s OSHA early in his term.

The challenging groups are resuming their 2019 lawsuit (State of New Jersey, et al., v. Walsh) because the Biden Administration recently moved its target date for finalizing the updated rule from pre-March 2023 to June 2023, arguing that OSHA’s “pattern of reneging on its agreements” means litigation is the only sure path to resolve their claims.  OSHA had previously signaled that the rule would be finalized by March 2023 in its Fall 2022 regulatory agenda, but OSHA’s counsel recently informed the petitioners and the Court that OSHA would not make that commitment by at least three months.  A short time later, the petitioners filed a couple of briefs with the U.S. Court of Appeals for the District of Columbia Circuit earlier this month (on January 11th and 12th), asking the DC Circuit to bring the case out of abeyance and set a quick schedule.  The petitions brief requesting to revive the case under a scheduling order notes that Continue reading →

OSHA’s 2022 Year in Review and 2023 Forecast [Webinar Recording]

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On Thursday, January 26, 2023, the Partners in Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s 2022 in Review and 2023 Forecast.

As we approach the midway point of the Biden Administration, it’s time to look back and take stock of what we learned from and about OSHA during another very eventful year. More importantly, it is once again time to look ahead and discuss what employers should expect from OSHA during Year 3 of the Biden/Harris administration. In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group reviewed OSHA enforcement data and trends as well as changes to the SVEP program and new emphasis programs, rulemaking, and personnel developments from 2022. We also discussed the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned: Continue reading →

Announcing Conn Maciel Carey LLP’s 2023 MSHA Webinar Series!

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Entering MSHA’s third year under the Biden Administration, the mining industry should expect to see a more active and emboldened agency. The past year saw the completion of MSHA political leadership, and a renewed focus on rulemaking and enforcement. In the year to come, operators can expect to see at least two rules from the agency, specifically regarding MSHA’s long-awaited proposed rule on respirable crystalline silica – or respirable quartz as MSHA sometimes refers – and the final form or the Surface Mobile Equipment rule. In conjunction with the anticipated silica rule, MSHA continues to engage in increasingly aggressive enforcement regarding industrial hygiene at the nation’s mines. The coming year will be active from both an enforcement and rulemaking perspective, meaning it is as important as ever for operators to stay attuned to developments at MSHA.

Conn Maciel Carey’s complimentary 2023 MSHA Webinar Series includes free programs put on by the MSHA-focused attorneys in the firm’s national MSHA Practice Group and is designed to give employers insight into the changes and developments at MSHA during this active period for the agency.

To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2023 series, click here to send us an email request so we can get you registered.  If you missed any of our past programs from the MSHA Webinar Series, here is a link to a library of webinar recordings.  If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important MSHA-related topic, please do not hesitate to contact us.

MSHA’s 2022 in Review and 2023 Forecast
Tuesday, February 21st

Mid-Year Update and FMSHRC Significant Cases
Wednesday, July 19th

The Mine Act and MSHA Inspection Powers
Thursday, March 23rd

Managing MSHA Complaint & 105(c) Investigations
Tuesday, September 12th

Preparing for Serious Accident and Fatality Investigations
Tuesday, April 18th

Safety-Related Incident Investigations and Audit Reports
Thursday, October 5th

Where Does MSHA’s Authority Begin and OSHA’s End?
Tuesday, May 16th

Best Practices at Multi-Operator MSHA Sites
Wednesday November 15th 

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

Continue reading →

OSHA’s Heat Illness Rulemaking – NACOSH Meeting and Next Steps

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By Eric J. Conn and Beeta B. Lashkari

As we mentioned in our last update from December, OSHA continues to move swiftly on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings.  We attended the National Advisory Committee on Occupational Safety and Health (“NACOSH”) committee meeting on January 10th, where the Committee primarily addressed recommendations and updates from NACOSH’s Heat Injury and Illness Prevention Work Group (“Work Group”), and wanted to provide you this update.

As a reminder, the NACOSH Work Group was split into two sub-groups – one addressing Task 1 of the Charge to the Work Group (evaluating and providing input and recommendations for compliance assistance materials about heat illness prevention), and the other sub-group addressing Task 2 (developing key recommendations on potential elements of a Heat Injury and Illness Prevention Standard for OSHA to consider).  As expected, only the sub-group addressing Task 1 (“Compliance Assistance Work Group”) delivered its recommendations to the full NACOSH committee during the January 10th meeting.  The sub-group addressing Task 2 (“Rulemaking Work Group”) – which is the sub-group more important to our Coalition – reiterated that it is still in the process of developing recommendations, to which OSHA responded with some strong words.  More on that below.

To start, the Compliance Assistance Work Group presented its findings and recommendations to the full NACOSH Committee, which the Committee approved unanimously without changes.  Four of the ten recommendations aim to improve OSHA’s guidance on heat dangers, urging the agency to: Continue reading →

[Webinar] OSHA’s 2022 Year in Review and 2023 Forecast

Theresa Green Leave a comment

On Thursday, January 26, 2023 at 1 p.m. EST, join the Partners in Conn Maciel Carey’s national OSHA Practice Group for a webinar regarding OSHA’s 2022 in Review and 2023 Forecast.

As we approach the midway point of the Biden Administration, it’s time to look back and take stock of what we learned from and about OSHA during another very eventful year. More importantly, it is once again time to look ahead and discuss what employers should expect from OSHA during Year 3 of the Biden/Harris administration. In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement data and trends as well as changes to the SVEP program and new emphasis programs, rulemaking, and personnel developments from 2022. We will also discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar will learn: Continue reading →

Join Conn Maciel Carey’s 2023 Cal/OSHA Rulemaking Coalition

Andrew J. Sommer Leave a comment

For the past two years, Conn Maciel Carey has represented a broad coalition comprised of California and national employers and trade associations from a diverse range of industries in advocating to the Cal/OSHA Standards Board about the roller coaster of COVID-19 emergency and non-emergency rulemaking, in the form of preparing numerous rounds of written comments, testifying in public meetings, and participating by invitation as one of only a small number of management-side representatives on a rulemaking Advisory Committee established by Cal/OSHA for the COVID-19 regulatory process. We have been intrinsically involved in the four iterations of Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS), and the COVID-19 Non-Emergency Rule that was recently adopted for a two-year term.

Those of you whose organizations participated in our California Employers COVID-19 Prevention Coalition know that together we accomplished a great deal, with material improvement for employers to the COVID-19 regulatory landscape in California. Our coalition’s input is reflected in the regulatory text of the Cal/OSHA COVID-19 ETS and now the COVID-19 Non-Emergency Rule, as well as in several batches of FAQs issued by Cal/OSHA attempting to address some of the concerns and recommendations we identified.

With the completion of the non-emergency rule now, we expect the Cal/OSHA Standards Board to transition in 2023 from the COVID-19 related rulemaking to its regulatory priorities that were forced to the backburner because of the pandemic, including work on: Continue reading →

Join CMC’s Coalition to Combat the FTC’s Ban of Noncompete Agreements

Eric J. Conn Leave a comment

Earlier this month, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, as well as with independent contractors, interns, volunteers, and other types of workers. The proposed rule would require employers to withdraw any existing noncompete agreements and inform employees that noncompete agreements no longer apply. The proposed rule would also make it unlawful for an employer to enter into a noncompete agreement with an employee, to attempt to enter into such an agreement with an employee, or to suggest that an employee is bound by a noncompete agreement when the employee is not.

While the FTC may justify this proposed rule as necessary to allow workers to move freely without restrictions, we believe that this rule, if passed, would severely compromise a company’s ability protect its trade secrets and other confidential information, and could negate a company’s significant investment in valuable investments in its employees, including employee training.  Indeed, there are countless reasons why a narrowly tailored noncompete agreement is a necessary tool that has been, and should continue to be, in an employer’s arsenal to protect its significant investment in its employees and the information to which they are privy.

The rule is currently open for comment.  To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to advocate for the most reasonable FTC rule possible, with the goal of helping to shape any rule that the FTC ultimately promulgates in such a way that the rule is palatable to employers. Continue reading →

OSHA’s Permanent COVID-19 Rule for Healthcare – OIRA Meetings and Next Steps

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By Eric J. Conn and Beeta B. Lashkari

Per our update last month, on December 8, 2022, OSHA delivered to the White House’s Office of Management and Budget (OMB) a proposed final rule for “Occupational Exposure to COVID-19 in Healthcare Settings.”  On behalf of our Employers COVID-19 Prevention Coalition, we secured three stakeholder meetings with the Office of Information and Regulatory Affairs (OIRA) within OMB for the three industry segments in the coalition most likely to be affected by the rule:

    • Construction / Maintenance:  Tuesday, January 3rd
    • Retailers / Retail Pharmacies:  Wednesday, January 4th
    • Manufacturers w/ Medical Clinics:  Thursday, January 5th

Below is a report out from those meetings with OIRA and a discussion about what we think is going to happen next and when.

The meetings were hosted by a Deputy Branch Chief at OIRA with participation by representatives from OMB/OIRA, DOL, DOL’s Office of the Solicitor, SBA’s Office of Advocacy, as well as OSHA’s Directorate of Standards and Guidance, Office of Engineering Safety, Office of Physical Hazards, Office of Chemical Hazards, and Office of Regulatory Analysis.

On behalf of our Employers COVID-19 Prevention Coalition, we had representatives from the National Electrical Contractors Association (NECA) for the Construction / Maintenance industry segment, the Retail Industry Leaders Association and the National Association of Chain Drug Stores for the Retail Pharmacy industry segment, and the American Chemistry Council for Manufacturers with On-site Medical Clinics.

Here are the official records on OIRA’s website about our meetings: Continue reading →

Inspections Begin Under OSHA’s Local Emphasis Program for Food Manufacturers in Illinois and Ohio

Aaron Gelb Leave a comment

By Aaron R. Gelb and Ashley Mitchell

Inspections have commenced in Illinois and Ohio under the the Local Emphasis Program (LEP) focusing on food manufacturers OSHA announced in October 2022.  This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V over the past two years dealing with exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022.  General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well.  A similar LEP targeting Wisconsin food manufacturers, with the primary difference being the NAICS Codes on which the two LEPs, began last Spring.  To date, OSHA has opened 12 inspections, but citation data is not yet available for those inspections.  Both LEPs mandate an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.

Why Is OSHA Targeting the Food Manufacturing Industry? Continue reading →

Conn Maciel Carey LLP Elevates Daniel Deacon to Partner

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Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Daniel Deacon has been elevated to Partner.

Mr. Deacon, based in the Washington, DC office, advises and represents employers on a wide range of employment-related issues, including handling wage and hour disputes, claims of discrimination, harassment and retaliation, compliance with the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), trade secret matters, as well as inspections, investigations and enforcement actions by OSHA, MSHA, and state OSH agencies.

Mr. Deacon joined the firm in 2015, one year after CMC was founded. “With the exception of a judicial clerkship for the 18th Judicial Circuit of Virginia, Dan has been with our team since he was a summer associate, so in a very real sense, he is one of the founders of this firm and has always been an important part of our success,” says Eric Conn, a co-founding partner and Chair of the firm’s national OSHA Practice. “It has been such a joy to watch Dan grow as an attorney into one of the rising stars of the OSHA defense bar.”

“I am so proud to have witnessed Dan advance from a Continue reading →

Happy Holidays and Happy New Year from Conn Maciel Carey!

Theresa Green Leave a comment

From all of us here in the national OSHA Practice Group at Conn Maciel Carey, to all of you, happy holidays and happy New Year.  We wish you a joyful and safe holiday season.

Please enjoy this holiday greeting from the CMC family to your family:

Mailchimp

We have so much to be thankful for at Conn Maciel Carey, but most of all, we thank you all for continuing to turn to us for counsel and legal services.  Please contact us if you have questions about any of the topics we have covered here on the OSHA Defense Report blog, or if you have ideas for other subjects we should be covering.  And of course, contact any of us if there is ever anything our national OSHA Practice Group at Conn Maciel Carey can do to help you or your company with OSHA law issues.

Process Safety Update: The Latest with OSHA PSM & EPA RMP [Webinar Recording]

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On Tuesday, December 13, 2022, the attorneys in Conn Maciel Carey’s national OSHA Workplace Safety Practice Group presented a webinar in the 2022 OSHA Webinar Series regarding a Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Presented by:
Eric Conn, Micah Smith, and Beeta Lashkari
of Conn Maciel Carey’s OSHA Practice Group

And Special Guest Clyde Trombettas
(former head of Cal/OSHA’s PSM Unit)

Nearly two full years in, and the Biden Administration has been making its mark in the process safety arena, rolling back the rollbacks of the RMP Rule promulgated during the Obama Administration, and dusting off the PSM reform rulemaking that had begun at that same time. The CSB has also been changing the process safety landscape with new guidance about its Accidental Release Reporting Rule and other investigation activities.

We are also pleased to announce that we were joined by a special guest co-presenter, Mr. Clyde Trombettas. Mr. Trombettas recently-retired from Cal/OSHA as the Program Manager for Cal/OSHA’s Process Safety Management Unit. He provided an update regarding Cal/OSHA’s PSM team, enforcement trends, and other PSM regulatory developments.

This process safety regulatory update: Continue reading →

OSHA’s Heat Illness Rulemaking – Recent NACOSH Work Group Meeting

Eric J. Conn 1 Comment

By Beeta B. Lashkari and Eric J. Conn

With the winter holidays upon us, heat illness may not be front and center on your minds, but OSHA continues to be push full steam ahead on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings, so we wanted to provide you a quick update.

In September, OSHA had drafted but not yet released a summary document of all of the 1,078 comments the agency had received in response to the ANPRM.  That summary document is now publicly available, posted on December 16, 2022 on the National Advisory Committee on Occupational Safety and Health (“NACOSH”) docket for its Heat Injury and Illness Prevention Work Group.  Below are some highlights from the summary document.

Notably, our Coalition’s written comments were referenced 14 times in the summary document, including for the following propositions: Continue reading →

Cal/OSHA COVID-19 Non-Emergency Rule Is Adopted

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By Megan S. Shaked and Andrew J. Sommer

On December 15, the California Occupational Safety and Health Standards Board voted 6-1 to adopt the COVID-19 Prevention Non-Emergency Regulations. The Non-Emergency Rule was proposed to replace the Cal/OSHA COVID-19 Emergency Temporary Standard, which has been in effect in four different versions since November 30, 2020 and is set to expire on December 31, 2022.

The Office of Administrative Law will now review the new regulation, which is expected to be formally approved, effective January 1, 2023.

Discussion from the Standards Board Meeting

During the meeting, stakeholders provided public comments on the proposed Non-Emergency Rule.  During the public comment period, Conn Maciel Carey spoke on behalf of the California Employers COVID-19 Prevention Coalition, composed of a broad array of California employers and trade groups substantially impacted by Cal/OSHA’s COVID-19 rulemaking. We urged the Board to vote “no” on the proposal, highlighting the availability of vaccinations, testing and treatment and the inflexibility of the two-year fixed term. We also Continue reading →

Announcing Conn Maciel Carey LLP’s 2023 OSHA Webinar Series!

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ANNOUNCING CONN MACIEL CAREY LLP’S
2023 OSHA WEBINAR SERIES

Two years into the Biden Administration, with senior political leadership now firmly entrenched at federal OSHA, the agency is making good on its promise to “use all of the tools available” in its regulatory and enforcement toolbox to protect workers.  In part, that has taken the form of increasingly aggressive enforcement (more inspections, more significant penalties, etc.), hiring more compliance officers, launching new special emphasis enforcement programs, and expanding its enforcement policies like its Severe Violator Enforcement Program.  It has also taken the form of a broad-based rulemaking agenda that includes work on a new heat illness rule, pushing out a permanent COVID-19 standard for healthcare, expanding its E-Recordkeeping requirements, among other high priority rulemakings.

Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.  To help you do so, ​Conn Maciel Carey LLP is pleased to present our complimentary 2023 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-specialist attorneys in the firm’s national OSHA Practice Group.  The webinar series is designed to arm employers with the insight into developments at OSHA that they need during this period of unpredictability and significant change.

​To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2023 series, click here to send us an email request so we can get you registered.  If you missed any of our programs over the past eight years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings.  If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.

2022 Year in Review and 2023 Forecast

Thursday, January 26th

 Mid–Year Review of OSHA Developments

Thursday, July 20th

Annual Cal/OSHA Update

Thursday, February 16th

OSH State Plan Update

Thursday, August 10th

Responding to Whistleblower Complaints

Tuesday, March 21st

Powered Industrial Trucks

Thursday, September 14th

Repeat, Willful, Egregious and SVEP

Thursday, April 13th

Investigations and Audit Reports

Thursday, October 5th

OSHA Rulemaking Update

Thursday, May 18th

OSHA’s PSM Standard & EPA’s RMP Rule

Tuesday, November 14th
Preparing for OSHA Inspections

Thursday, June 8th

Combustible Dust

Thursday, December 7th

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

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OSHA’s Proposed Permanent COVID-19 Standard for Healthcare Nears the Finish Line

Eric J. Conn 11 Comments

Conn Maciel Carey’s COVID-19 Task Force

Thankfully, it has been quite a while since our last COVID-19 rulemaking update.

As you will recall, OSHA reopened its rulemaking record for the COVID-19 Rule for Healthcare on March 22, 2022, and then on April 22nd, we submitted three sets of written comments on behalf of the Employers COVID-19 Prevention Coalition regarding issues facing: (1) retailers and retail pharmacies; (2) addressing embedded medical clinics and emergency response teams for manufacturers and other industrial worksites; and (3) addressing construction issues at healthcare workplaces.  We participated in OSHA’s Public Hearing for the rulemaking, held on April 27th – May 2nd, and then submitted two additional sets of post-hearing comments on May 23rd.  Then basically nothing happened.

We were beginning to think that OSHA had abandoned the rulemaking for a permanent COVID-19 Standard for Healthcare.  But we now have some significant news to share.  Last week, on December 8th, the Office of Management and Budget (OMB) updated its website to reflect that it officially has OSHA’s “Occupational Exposure to COVID-19 in Healthcare Settings” Standard “under review.”

The website reflects that OMB received the proposed final rule from OSHA on December 7th.  Here is a link to the page for this rulemaking and below is all the relevant information reflected on OMB’s website: Continue reading →