Chambers USA Recognizes Conn Maciel Carey as 1 of Only 3 “Band 1” Ranked Law Firms for OSHA Law, Again!

June 1, 2023June 2, 2023Theresa Green Leave a comment

Conn Maciel Carey LLP (CMC) is honored to announce that the firm has been recognized as one of only three national law firms ranked in Band 1 Nationwide for Occupational Safety and Health (OSHA) Law for the 2^nd year in a row. CMC remains the only “boutique” firm among the law firms recognized.

The recognition comes from Chambers and Partners, an independent research company that delivers detailed rankings and insight into the world’s leading lawyers and law firms. This is only the second year that Chambers has ranked the OSHA Law field, and CMC has been ranked Band 1 both years.

Chambers’ researchers identified CMC as “perhaps the foremost experts in workplace health and safety law.… CMC is made up of some of the best legal expertise that is available when it comes to safety and health matters…. They are keen to build a good relationship with their clients so that they can anticipate needs and exceed expectations.”

Continue reading →

OSHA To Initiate SBREFA Process for Heat Illness Rulemaking – Join CMC’s Rulemaking Coalition

May 30, 2023Beeta B. Lashkari Leave a comment

By Eric Conn, Kate McMahon, and Beeta Lashkari

On Friday, May 19, 2023, OSHA presented at the Small Business Administration’s (“SBA”) Small Business Labor Safety (OSHA/MSHA) Roundtable about OSHA’s Heat Illness Rulemaking. At the meeting, OSHA reported about the status of the rulemaking, including the heat working group’s (as led by sub-group two) recommendations regarding potential elements of a standard, as we describe below (see “NACOSH Heat Working Group Meeting” section below). OSHA also gave an update on its work regarding changes to its compliance materials, which are in line with the heat working group’s (as led by sub-group one) recommendations made to the full NACOSH committee, and then from the full NACOSH committee to OSHA, earlier this year.

Importantly, just as we predicted, during the SBA roundtable meeting, OSHA stated that it is working diligently to pull together materials to initiate the SBREFA process as soon as possible, and when asked about the timing of issuance of the final standard, specifically, whether that will not happen until 10-12 months at the earliest, OSHA stated that the SBREFA process will be happening very soon, and that the heat injury and illness prevention rulemaking is a high priority for this Administration.

As we mentioned previously, we have officially moved into what we are calling Phase 2 of the rulemaking, which covers all advocacy and information-sharing from today (the start of the SBREFA process) through issuance of a Notice of Proposed Rulemaking (“NPRM”). Here are some of the benefits Continue reading →

2023 OSHA Rulemaking and Standards Priorities [Webinar Recording]

May 23, 2023Theresa Green Leave a comment

On Thursday, May 18, 2023, K ate McMahon, Lindsay DiSalvo and Beeta Lashkari presented a webinar regarding The Latest on the Rulemaking Agenda for OSHA Under the Biden Administration.

As we move into the second half of President Biden’s first term, OSHA is turning up the heat on the rulemaking gears. The next two years may see the most active rulemaking period in the agency’s history – lead, heat, infectious disease, LOTO, PSM, E-Recordkeeping, HAZCOM, COVID-19 for Healthcare, and the list goes on.

This lively discussion covered Continue reading →

OSHA Launches New National Emphasis Program Focused on Fall Hazards

May 10, 2023Beeta B. Lashkari Leave a comment

By Beeta Lashkari, Mark Ishu, and Kimberly Richardson

On May 1, 2023, OSHA announced the launch of a new National Emphasis Program (“NEP”) focused on preventing fall hazards in general industry and construction, the leading cause of fatal workplace injuries and the violation that the agency cites most frequently in construction industry inspections. The Falls NEP was signed April 24, 2023, and took effect the same day as OSHA’s announcement, on May 1, 2023.

It may have been that the Falls NEP was a long time coming. Per OSHA’s announcement, the NEP is based on historical Bureau of Labor Statistics (“BLS”) data and OSHA enforcement history. For example, data from BLS shows that, of the 5,190 fatal workplace injuries in 2021, 680 were associated with falls from elevations, about 13 percent of all deaths. Additionally, data from OSHA’s annual enforcement report indicates that, of 24,333 total inspections in 2021, 7,954 had an emphasis on falls, or about 33% of all inspections.

With regard to the new Falls NEP, Assistant Secretary of Labor for OSHA Doug Parker said:

“Considering that falls remain the leading cause of fatalities and serious injuries in all industries, the agency has determined that an increase in enforcement and outreach activities is warranted…. This national emphasis program aligns all of OSHA’s fall protection resources to combat one of the most preventable and significant causes of workplace fatalities.”

OSHA’s goal of significantly reducing or eliminating unprotected worker exposures to fall-related hazards in all industries that can result in serious injuries and deaths will be accomplished by a combination of enforcement (which includes hazard-based inspection targeting and optional locally-generated programmed targeting in construction as outlined in the Falls NEP’s Appendix A), outreach to employers, and compliance assistance.

Who is Covered by the Falls NEP?

The Falls NEP is meant to focus on reducing or eliminating fall-related injuries and fatalities for people working at heights in all industries. Although OSHA anticipates that most inspections under the Falls NEP will occur in construction because the majority of fatal falls to lower levels each year occur on construction worksites, it is important to note that the Falls NEP is not limited to construction.

Indeed, and importantly, the Falls NEP provides that Compliance Safety and Health Officers (“CSHO”) are authorized Continue reading →

OSHA Expands Its Investigative Authority Under the Whistleblower Protection Program through U and T Visa Certifications

May 4, 2023May 4, 2023Eric J. Conn Leave a comment

By Kara Maciel, Eric J. Conn, and Darius Rohani-Shukla

OSHA has unveiled another tool that will enhance its ability to investigate potential workplace safety violations affecting vulnerable workers who are victims of criminal activity, including sex and labor trafficking. Effective March 30, 2023, OSHA can now issue an important certification used to support two nonimmigrant visas, the U and T visas, that grant individuals immigration status when working with officials during criminal investigations and proceedings. Both the U visa and T visa were created in 2000 as part of the Victims of Trafficking and Violence Protection Act and are intended to provide undocumented workers or workers whose immigration status depends on their employer with the opportunity to report qualifying criminal activity (QCA) without jeopardizing their immigration status and/or risking retaliation by their employer. Now, OSHA can provide support to the visa applications of workers who bring forward credible allegations of a violation of a law that OSHA enforces, in situations where OSHA has detected specific QCA.

OSHA does not have the authority to issue U and T visas themselves. Rather, these visas are issued by Continue reading →

NACOSH Heat Work Group Meeting and the Next Phase of OSHA’s Heat Illness Rulemaking

April 25, 2023April 25, 2023Beeta B. Lashkari Leave a comment

By Eric J. Conn, Kate M. McMahon and Beeta B. Lashkari

On March 20^th OSHA announced that it will hold a virtual meeting of the Heat Working Group (“Working Group”) of the National Advisory Committee on Occupational Safety and Health (“NACOSH”) for later this week – on Thursday, April 27, 2023. We expect the Working Group presentation to include specific recommendations on potential elements of a Heat Injury and Illness Prevention standard. The full NACOSH committee will meet a little later, sometime in May (date TBD), likely to receive and vote on the recommendations of the Heat Working Group about a potential heat illness standard. NACOSH recommendations typically carry great weight with OSHA, and we expect OSHA will most certainly give them serious consideration. Indeed, we believe OSHA has delayed the start of its SBREFA process so that it can utilize the NACOSH recommendations in formulating the rulemaking package for participants in the SBREFA (more on that below). Accordingly, these Spring NACOSH meetings will be a major milestone in OSHA’s rulemaking process, as the recommendations from NACOSH are expected to set the foundation for OSHA to develop its proposed rule.

The April meetings also will be our first opportunity to get a real glimpse at the outline and terms of what a proposed Heat Injury and Illness Prevention rule will look like. On behalf of our Coalition, Conn Maciel Carey has registered to join the April meeting (and, once the date is confirmed and announced by OSHA, will register to the join the May meeting, as well). We will share an update on what we learn following each meeting.

As a brief recap, OSHA initiated its rulemaking on “Heat Injury and Illness Prevention in Outdoor and Indoor Settings” on October 27, 2021, when OSHA published an Advance Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register. Comments on the ANPRM were due January 26, 2022. NACOSH has played an important role Continue reading →

Conn Maciel Carey LLP Adds Highly Regarded OSHA Defense and Employment Attorney Kimberly Richardson

April 24, 2023April 24, 2023Theresa Green Leave a comment

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 Kimberly Richardson has become an Of Counsel attorney with the firm based out of the firm’s principal office in Washington, DC.

Ms. Richardson will provide counseling and litigation services related to workplace health and safety and employment-related matters. Throughout her 15 years of experience, Ms. Richardson has served as the lead in-house workplace health and safety attorney for multiple national and international organizations, where she advised executive leadership on matters pertaining to labor, employment, and OSHA compliance.

“I am elated to share Kimberly’s perspective as a former in-house corporate counsel with our clients and our attorneys as she prides herself on advising companies to create and prioritize robust compliance programs on the myriad of employment legal issues,” says Kara Maciel, Labor and Employment Practice Chair. “When corporate legal teams need advice on creating collaborative approaches to their ESG initiatives, Kimberly will be a strong leader of CMC’s team in providing strategic privileged counsel on the responsibilities that corporations will be facing in the years to come.”

“I could not be more excited to welcome the legendary Kimberly Richardson to our OSHA and L&E teams at Conn Maciel Carey,” says Eric Conn, OSHA Practice Chair. Continue reading →

Conn Maciel Carey LLP Expands Midwest Presence with OSHA Defense & Employment Senior Counsel Mark Ishu

April 19, 2023April 19, 2023Theresa Green Leave a comment

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 Mark Ishu has joined the firm’s Chicago office as a Senior Counsel.

Prior to entering private practice, Mr. Ishu spent over a decade serving as a Trial Attorney for the United States Department of Labor, Office of the Solicitor, where he prosecuted civil violations under federal labor statutes for the Occupational Safety and Health Act, Fair Labor Standards Act, , Mine Safety and Health Act, Employee Retirement Income Security Act, Davis Bacon Act, Service Contract Act, Immigration Nationality Act (H-1B, H-2B, H-2A), and whistleblower statutes. During his tenure, he was dedicated to fostering, promoting, and protecting the welfare of wage earners, job seekers, and retirees in improving working conditions, advancing opportunities for profitable employment, and assuring work-related benefits and rights.

Co-Managing Partner, Aaron Gelb, says “After litigating several significant citations with Mark on the other side representing OSHA, I came to respect him as a worthy adversary and like him as a person. Continue reading →

A Status Update About OSHA’s Rulemaking For a Permanent COVID-19 Rule for Healthcare

April 18, 2023Eric J. Conn Leave a comment

By Eric J. Conn and Beeta B. Lashkari

We wanted to provide a little status report about OSHA’s quiet rulemaking for a permanent COVID-19 Standard for Healthcare. A few weeks ago, at the ABA WOSH Committee Midwinter meeting, multiple senior Department of Labor officials, including Doug Parker (Head of OSHA) and Seema Nanda (the Solicitor of Labor), were asked some pointed questions about the rulemaking. They were all pretty tight-lipped and evasive. We pointed out to the Solicitor of Labor that the very day on which we were talking about the rulemaking was the 90^th day since OSHA had delivered the proposed final rule to the White House’s Office of Management Budget for a “final review.” Pursuant to Executive Order 12866, a proposed final rule generally cannot remain at OMB for longer than 90 days unless the regulating agency (in this case, OSHA) requests an extension of the review period. The Solicitor of Labor was asked if the Department of Labor or OSHA had already or was intending to seek such an extension, or whether the agency had decided to withdraw the proposed final rule in light of the changing circumstances of the pandemic and President Biden’s withdrawal of the emergency declaration. She sidestepped the question, stating that OMB can extend the review period at least another 30 days without any formal action by the Department of Labor, but would not say what OMB’s or OSHA’s plans were for the rule.

The one-time, automatic 30-day extension of OMB’s 90-day review period is consistent with our understanding too. See the excerpt below from OMB OIRA FAQs: Continue reading →

Updates about OSHA’s Egregious Enforcement and Severe Violator Enforcement Program [Webinar Recording]

April 17, 2023April 14, 2023Theresa Green Leave a comment

On Thursday, April 13, 2023, Eric Conn and D arius Rohani-Shukla presented a webinar regarding Updates about OSHA’s Egregious Enforcement and SVEP.

OSHA violations characterized as Repeat or Willful can now carry penalties as high as $156,259 per citation. You may be wondering, however, what exactly leads OSHA to characterize a violation as Repeat or Willful, and why are they important beyond their high-dollar cost? No doubt, you heard that OSHA changed the Severe Violator Enforcement Program (SVEP) in September 2022, making it easier to place employers into the program and saddle them with all the negative consequences associated with it even though the citations which prompted the referral are not yet final orders. Raising the stakes even higher, OSHA announced changes to its “Instance-By-Instance” or “Egregious” enforcement policy in January 2023 that will undoubtedly lead to a significant increase in the number of multi-million-dollar enforcement actions.

This webinar explained the legal standard for Repeat, Willful and Egregious violations, the potential consequences for receiving them, and how OSHA’s enforcement policies have resulted in a significant increase in the frequency with which we see these aggravated characterizations.

Participants in this webinar learned: Continue reading →

OSHA Delivers Proposed Final (Amended) Electronic Recordkeeping Rule to the White House

April 13, 2023Eric J. Conn Leave a comment

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

We have an update to share about OSHA’s rulemaking to expand its regulation to “Improve Tracking of Workplace Injuries and Illnesses” (known better as the Electronic Recordkeeping or E-Recordkeeping Rule). Late last week, OSHA delivered to the White House’s Office of Management and Budget (OMB) a proposed Final (Amended) E-Recordkeeping Rule for review by the Administration’s economists and policy experts. OMB’s website reflects that, as of April 7, 2023, OMB:

Has received a proposed E-Recordkeeping Rule from OSHA; and
The rule is in the “Final Rule” stage.

As we indicated a few weeks ago, OSHA’s latest target date to issue the rule is June of this year, and getting the proposed final rule to OMB last week lines up well with that target. The submission of the proposed rule to OMB means OSHA is at the goal line; just one step away from finalizing a rule that more closely resembles the agency’s original intent and broad scope of the E-Recordkeeping Rule when it was promulgated in 2016 under the Obama Administration.

The original E-Recordkeeping Rule would have had larger employers submitting to OSHA annually the data from their full panoply of injury and illness recordkeeping forms (the 300 Logs, 301 incident reports, and 300A Annual Summaries), and smaller employers in certain “high hazard industries” submitting only the 300A Annual Summary data. Before ever collecting the more detailed level data from 300 Logs and 301 Incident Reports, former President Trump’s OSHA rolled back the more onerous requirements, such that no matter the employer’s size, if you were covered by the rule, you submitted only 300A Annual Summary date.

OSHA was sued by organizations representing labor alleging that Continue reading →

Strategies for Responding to Whistleblower / Retaliation Complaints [Webinar Recording]

March 28, 2023Theresa Green Leave a comment

On Tuesday, March 21, 2023 at 1 p.m. EST, Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight presented 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 learned: Continue reading →

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

March 17, 2023Eric 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 →

OSHA Announces VPP Modernization Project

March 14, 2023March 14, 2023Beeta 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]

March 7, 2023Theresa Green Leave a comment

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!

March 6, 2023May 4, 2023Theresa Green Leave a comment

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!

Where 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 150^th 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

February 28, 2023February 28, 2023Theresa 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)

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]

February 28, 2023February 27, 2023Theresa Green Leave a comment

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

February 23, 2023Theresa 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.

Participants in this webinar will learn: Continue reading →

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

February 6, 2023February 6, 2023Eric J. Conn Leave a comment

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

February 2, 2023February 1, 2023Eric J. Conn 1 Comment

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 11^th and 12^th), 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]

February 1, 2023Theresa Green Leave a comment

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!

January 30, 2023January 27, 2023Theresa Green Leave a comment

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 21^st

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

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

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

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

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

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

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

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

January 27, 2023January 26, 2023Eric J. Conn 1 Comment

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 10^th, 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 10^th 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

January 26, 2023January 25, 2023Theresa 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.