11th Cir. Deals a Big Blow to OSHA’s Inspection Authority

Lindsay A. DiSalvo Leave a comment

By Eric J. Conn and Lindsay A. DiSalvo

OSHA’s enforcement authority, specifically as it relates to the agency’s ability to expand an unprogrammed inspection beyond its original scope, has been limited, at least for employers in the Southeast.  Late last year, in United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the 11th Circuit affirmed a district court decision to quash an administrative inspection warrant that would have permitted OSHA to expand an inspection of Mar-Jac Poultry, Inc.’s (“Mar-Jac”) poultry processing facility in Georgia, initiated as a partial scope inspection in response to a single, specific reported injury, to become a comprehensive inspection under a Regional Emphasis Enforcement Program. This decision is important for employers because OSHA’s inspection authority has generally been understood to be quite broad, and judges have generally deferred to OSHA when applying the applicable administrative probable cause standard to OSHA’s inspection authority.  But in Mar-Jac, the 11th Circuit determined that an unprogrammed inspection initiated as a result of a specific reported injury could not lawfully be expanded to include other areas of the facility, other hazards unrelated to the specific reported injury, and other aspects of Mar-Jac’s safety program, because the evidence presented by OSHA in support of its warrant application was inadequate to establish reasonable suspicion of the presence of violative conditions unrelated to the reported injury.

Background of the Case

OSHA decided to inspect Mar-Jac’s poultry processing facility in Georgia after the facility called OSHA to report a serious injury that resulted in an in-patient hospitalization on February 4. 2016.  The injury occurred on February 3rd, when an employee attempted to repair an electrical panel with a non-insulted screwdriver, resulting in an arc flash and serious burns to the employee.  After receiving the injury report, OSHA opened an unprogrammed inspection at the facility on February 8th.  At that time, OSHA asked the employer for consent to inspect both Continue reading →

[Webinar] Updates About OSHA’s E-Recordkeeping and Significant Injury Reporting Rules

Eric J. Conn Leave a comment

On Tuesday, February 12, 2019 at 1 PM Eastern, join Eric J. Conn, Lindsay DiSalvo, and Dan Deacon, from Conn Maciel Carey LLP’s national OSHA Practice, for a complimentary webinar: “Updates About OSHA’s E-Recordkeeping and Significant Injury Reporting Rules.“

OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, last week, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.

Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015.  Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA.  In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.

During this webinar, participants will learn: Continue reading →

BREAKING NEWS: OSHA Issues Final Amended Rule Scaling Back Electronic Injury Recordkeeping

Eric J. Conn Leave a comment

By Eric J. Conn and Dan C. Deacon

Yesterday OSHA announced and today OSHA officially published its Final Rule amending its Electronic Recordkeeping Rule.  After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump Administration, OSHA has finally approved changes (hopefully just the first step) to pare down the E-Recordkeeping Rule. 

On July 30, 2018, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule.  83 Fed. Reg. 36494 (July 30, 2018).  The proposed Rule included only one significant change to the current regulation.  Specifically, the proposal sought to rescind the requirement for the largest employers — those with individual establishments with 250 or more employees — to annually submit to OSHA’s online web portal the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses.

The proposal left intact the requirement for these large employers and many more smaller employers to annually submit 300A annual summary data.  Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the final rule does not disturb in any manner the controversial and duplicative “anti-retaliation” provisions, or the interpretations of those provisions included in the Preamble to the 2016 Final Rule.  These are the provisions that endeavored to restrict employers’ authority to discipline employees for late injury reporting or for safety violations, as well as limit employer’s ability to perform post-incident drug testing and to provide safety incentives.  For more information about these elements of the E-Recordkeeping Rule, check out our previous blog article regarding the E-Recordkeeping Anti-Retaliation provisions.

Tortured History and Difficulties Implementing E-Recordkeeping

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer participate in its annual injury data survey, employers’ injury and illness recordkeeping data was maintained internally.  In a major policy shift, President Obama’s OSHA Continue reading →

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

Lindsay A. DiSalvo 1 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 code is 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).

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish 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 2018) is March 2, 2019.

By February 1st every year, however, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

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.

Five Common 300A Mistakes that Employers Make

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

Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review [Webinar Recording]

Eric J. Conn Leave a comment

On January 15, 2019, the Partners in Conn Maciel Carey’s national OSHA Practice presented a webinar on “The Top 5 OSHA Issues to Track in 2019, and OSHA’s 2018 In Review.” 

The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term.  This webinar reviewed OSHA enforcement, rulemaking, and other developments from 2018, and discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants learned: Continue reading →

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

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By Andrew Sommer, Megan Shaked, and Dan Deacon

As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).

When federal OSHA promulgated the Rule in 2016, E-Recordkeeping Ruleit built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication.  Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration.  As a result, numerous State OSH programs failed to initially adopt the rule.  After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.

Delinquent State Plans Began Adopting E-Recordkeeping

In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon.  While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (Wy OSHA); and
  • Vermont (VOSHA)

Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction.  Specifically, on April 30, 2018, federal OSHA issued a Continue reading →

OSHA’s New Site-Specific Targeting Inspection Initiative

Eric J. Conn Leave a comment

By Dan C. Deacon and Eric J. Conn

After years of wondering how OSHA could possibly manage and use data collected under the 2016 E-Recordkeeping Rule, the agency has finally revealed its hand.  Last month, OSHA launched its Site-Specific Targeting 2016 (“SST-16”) inspection plan, which outlines the agency’s strategy to target establishments for inspection based on the 300A data collected by OSHA under its Final Rule to Improve Tracking of Workplace Injuries and Illness (i.e.  the “E-Recordkeeping Rule”).

What is OSHA’s SST-16 Inspection Plan?

The SST-16 Inspection Plan is OSHA’s site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees.  The Plan is based on the calendar year 2016 300A injury and illness summary data that employers submitted to OSHA via OSHA’s Injury Tracking Application (aka, the E-Recordkeeping Portal) in December 2017.

Employers should not be surprised by OSHA’s site-specific targeting plan, as this is not a novel program for OSHA. SST was the grandfather of all OSHA enforcement emphasis programs.  Prior to 2014, SST programs used injury and illness information collected under the former OSHA Data Initiative to target the agency’s inspection resources.

OSHA believes the SST Program is “program helps OSHA achieve its goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.”

The SST-16 Plan selects individual establishments for inspection based on their CY 2016 300A injury data submitted under the E-Recordkeeping Rule.  OSHA has created a software that will generate a list of targeted establishments for enforcement from this pool of data.  The targeted establishments will be those with Continue reading →

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

Eric J. Conn Leave a comment

We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking.  We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases.  And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.

As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.

2019 OSHA Webinar Series – Program Schedule
OSHA Year in Review & 2019 Forecast

Tuesday, January 15th
Tips to Survive an OSHA Inspection

Tuesday, July 23rd
Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th
Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th
OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th
OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th
Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th
What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd
New Cal/OSHA Enforcement Issues

Tuesday, May 28th
 OSHA PSM and EPA RMP Update

Tuesday, November 19th
The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th
Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th
See below for descriptions of the webinars and registration links Continue reading →

[Webinar] OSHA and the ADA: How Two Labor Laws Align and Diverge

Eric J. Conn Leave a comment

On Tuesday, December 4, 2018 at 1 PM Eastern, join Jordan B. Schwartz and Lindsay A. DiSalvo of the law firm Conn Maciel Carey for a complimentary webinar: “OSHA and the ADA: How Two Labor Laws Align and Diverge.”

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers.  This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard.  It is important to understand the law in this context, especially due to America’s aging workforce.

The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

​During this webinar, participants will learn: Continue reading →

Fall 2018 Unified Agenda Forecasts Several Significant Employment-Related Regulatory & Deregulatory Actions

Eric J. Conn Leave a comment

The Employer Defense Report

By: Mark M. Trapp and Aaron R. Gelb

On October 17, 2018, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”). Reports such as these, usually issued twice a year, set forth each federal agency’s forecast of its anticipated actions and rulemaking priorities for the next six-month period. It also provides estimated timelines for completion. This regulatory to-do list provides insight into the administration’s upcoming priorities. The current Agenda emphasizes the Trump Administration’s efforts to deregulate industry, but also includes several regulatory items of importance to employers.

Here is a summary, broken down by department, of the most significant employment-related items addressed in the Agenda.

Department of LaborFall 2018 Agenda_DOL_3

Wage and Hour Division

Joint Employment. The Obama administration took a much broader view of “joint employment” – situations in which a worker may be considered an employee of two or more separate employers. Following the lead of the…

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

Eric J. Conn Leave a comment

On November 13, 2018, Eric J. Conn, Micah Smith, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule.”PSM Webinar Slide

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 manufacturing processes. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like the second wave of Refinery PSM NEP inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

Then President Trump took office with a de-regulatory agenda.  Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?

This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, and other major safety and health related developments rolling out in the early stages of the Trump Administration.

Continue reading →

Key Takeaways from the Inaugural Process Safety Summit in Washington, DC

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Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC

By the national OSHA Practice at Conn Maciel Carey LLP

The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success.  The event allowed the more than 160 safety and legal representatives from the petroleum refining, chemical manufacturing, paper manufacturing, and fertilizer industries to hear from and share with senior federal government officials from OSHA, EPA and the Chemical Safety Board, both through interactive panel discussions and breakout roundtable discussions.  The agency panels and facilitated discussions covered topics ranging from enforcement under the Trump Administration, to the status of OSHA’s PSM and RMP Rulemakings, candid debates about major issues in dispute in recent PSM and RMP case, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and how to comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.

Introduction

The day began with welcome remarks from Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice.  Eric set two themes for the Summit:

  1. the importance of candid discussions between regulators and the regulated community; and
  2. the near-term risk of agencies working to upend the historical performance-oriented paradigm of the process safety regulatory framework.

Too often, OSHA and EPA representatives complain that Industry “can make up the rules as it goes along.” – Tweet from David Michaels, Former Assistant Secretary of Labor for OSHA.

Statements like that imply a haphazard approach to process safety that it is not reflected by the diligent work of refiners and manufacturers across the country.  Our experience shows a much different take on process safety.  We hear about all of the ways that process safety is evolving, much more often on Industry’s own initiative than in response to a regulatory action.  We watch how lessons are being learned and applied from incidents and experience.  We see how much time is spent trying to anticipate the kinds of issues that could cause a process safety incident.  And we feel a regulatory backlash, when process safety problems are most often found in outliers or with operations not even covered by OSHA’s or EPA’s process safety regulations.

More importantly, remarks about Industry making up the rules as it goes along also reflect a flawed belief by regulators that Continue reading →

In the Wake of Criticism of the E-Recordkeeping Anti-Retaliation Rule, OSHA Issues New “Guidance”

Eric J. Conn Leave a comment

By Eric J. Conn and Beeta B. Lashkari

On May 11, 2016, OSHA published its Final Rule for injury and illness recordkeeping electronic data submissions — what we refer to as the E-Recordkeeping Rule. The rule fundamentally changed OSHA’s long-standing injury and illness recordkeeping program by requiring injury and illness data to be proactively shared with OSHA, which intended originally (and still, but after some delay) to publicize the data for all the world to see. The 2016 E-Recordkeeping Rule required:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only.

In addition to the electronic data submission requirements, the E-Recordkeeping also introduced (out of left field) some new anti-retaliation restrictions that were intended to eliminate employer policies that may discourage employees from reporting injuries, purportedly for the nefarious purpose of reducing the numbers of injuries the employer has to share with OSHA.  These anti-retaliation provisions included very generic, vague language, but through a series of memos, interpretation letters, and other guidance, we have learned that the anti-retaliation elements primarily restrict employers’ use of safety incentive programs (prizes for injury-free work), post-incident drug testing, executive compensation and bonuses, and post-incident discipline.  Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the Preamble to the Final Rule.  For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.

Since promulgation in May 2016, implementation of all aspects of the Rule has been mired in difficulty.  Continue reading →

OSHA’s New Emphasis Program for Fertilizer Grade Ammonium Nitrate and Anhydrous Ammonia

Beeta B. Lashkari Leave a comment

By: Aaron R. Gelb and Beeta B. Lashkari

On September 25, 2018, OSHA announced the launch of a new Regional Emphasis Program (REP) to address the hazards from exposure to fertilizer grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia.  The REP, effective October 1, 2018, covers the states of Arkansas, Louisiana, Oklahoma, and Texas in OSHA Region VI, and Kansas, Missouri, and Nebraska in OSHA Region VII.  OSHA will commence enforcement activities on January 1, 2019, after a three-month period of education and prevention outreach.  FGAN REP_2Generally, enforcement activities will include the inspection and review of: (1) production operations and working conditions; (2) injury and illness records; (3) safety and health programs; and (4) chemical handling and use.  OSHA’s decision to initiate a new REP covering two regions and seven states is yet another reminder that the agency is continuing full-speed ahead with enforcement efforts.  While many anticipated that the Trump administration would retire OSHA’s national, regional and local emphasis programs, that has not happened.  To the contrary, OSHA continues to implement the same number of enforcement emphasis programs as at the end of the Obama administration.

What prompted OSHA to act now?

On April 17, 2013, a fire and explosion involving FGAN occurred at the West Fertilizer Company in West, Texas, resulting in at least 14 fatalities.  While OSHA and the West Fertilizer Company ultimately reached a settlement, OSHA initially issued more than 20 citations, including several under Section (i) of its Explosives and Blasting Agents Standard.  Continue reading →

All You Never Wanted to Know about OSHA Repeat, Willful & Egregious Violations [Webinar Recording]

Eric J. Conn Leave a comment

On October 16, 2018, Eric J. Conn and Amanda R. Walker of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Everything You Never Wanted to Know about OSHA Repeat, Willful and Egregious Violations.” 

During the Obama Era, OSHA sharpened its enforcement teeth considerably by rewriting policies to characterize more violations as repeat and willful, and by significantly increasing its civil penalty authority. Now, OSHA violations characterized as Repeat or Willful carry penalties up to approx. $126,000 each. But what are Repeat and Willful violations? And what are these “Egregious” (or per-instance) citations OSHA has been issuing more and more often that lead to multi-million dollar enforcement actions?

This webinar covered the legal standard for Repeat, Willful and Egregious violations, the circumstances most often associated with them, the consequences for receiving them, and how OSHA’s enforcement policies have resulted in significant increases in the frequency with which we see them.

Participants in this webinar learned: Continue reading →

Confounding Expectations, OSHA Enforcement in the Trump Administration Is On the Rise

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA.  Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.

The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission.  Quite to the contrary, relevant enforcement data reveals enforcement creep.  With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.

Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:

  • OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
  • The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)

  • The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
  • The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)

Continue reading →

Delinquent State OSH Plans, Particularly Cal/OSHA, Catch-up with Fed OSHA’s E-Recordkeeping Rule

Daniel C. Deacon Leave a comment

By Eric J. Conn and Dan C. Deacon

When fed OSHA promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by fed OSHA.  Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from fed OSHA under the new Trump Administration.

Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule.  Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018.  And that is when fed OSHA started to speak up.

OSHA’s April 30, 2018 Press Release

On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule.  In the press release, OSHA states that it had determined that:

Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

State Plan State Responses

The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive Continue reading →

D.C. Circuit’s “Inadvertently Issued” Mandate puts RMP Amendments into Effect for a Weekend

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By Eric Conn, Micah Smith, and Beeta Lashkari

Late last Friday, August 31, 2018, the D.C. Circuit unexpectedly granted Petitioners’ request to expedite the issuance of the Court’s mandate to strike down the delay of EPA’s 2017 RMP Amendments.  RMP DecisionAs we previously reported, the D.C. Circuit held on August 17, 2018, that EPA acted improperly when it issued a final rule delaying the effective date of a certain set of amendments made to EPA’s RMP Rule (the “Delay Rule”).  Providing for a full rehearing petition period, and absent any action from the Court, the mandate for this decision would have issued at the earliest on October 8, 2017.  On August 24, 2018, however, Petitioners filed a motion to expedite, asking that it issue no later than September 7, 2018.

Petitioners’ arguments focus on the public’s “strong interest” in the prompt issuance of the mandate due to “the serious and irreparable harm and imminent threats to public health and safety that EPA’s Delay Rule is causing,” and they point to the 14 months of delay that has already occurred as evidence of the need for expedited relief.

And in a nod to current events, Petitioners claim that time is now of the essence because of the impending hurricane season, specifically mentioning the OIG’s investigation of EPA’s preparedness and response efforts to Hurricane Harvey in 2017.

Under the Federal Rules of Appellate Procedure, EPA and the Intervenors are afforded 10 days to file oppositions to Petitioners’ Motion, so those oppositions had not yet been filed on August 31.

Picture1

After the Court issued the mandate late on Friday, August 31, several motions for reconsideration were filed by EPA and Intervenors, but the Court’s closure over the 3-day weekend left all the parties in suspense, anxiously trying to determine the implications of the decision.

After a long weekend of suspense, the Court ordered EPA to return the mandate on September 4, noting that the responses to Petitioners’ Motion were not yet due.  The Court also briefly noted that it appeared “that the court’s mandate inadvertently issued” the previous Friday.  EPA returned the mandate on the same day.

But now that EPA and the Intervenors have filed oppositions to Petitioners’ Motion to expedite the issuance of the mandate, what comes next?  Continue reading →

Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule [Webinar Recording]

Daniel C. Deacon Leave a comment

On September 18, 2018, Micah Smith and Dan Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar: “Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule.” 

Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers.  In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule.  The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.

Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.

Participants in this webinar learned:

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D.C. Circuit Strikes Down the Trump EPA Delay of Obama EPA’s Overhaul of the Risk Management Program Rule

Eric J. Conn Leave a comment

By Micah Smith, Eric J. Conn, and Beeta Lashkari

Today, the U.S. Court of Appeals for the D.C. Circuit handed EPA (and Industry) a significant setback in the long-running battle over the 2017 Amendments to EPA’s Risk Management Program (RMP) Rule (EPA’s companion regulation to OSHA’s Process Safety Management Standard).  Specifically, in a per curiam order in Air Alliance Houston v. EPA, the D.C. Circuit held that EPA under the Trump Administration acted improperly when it issued a final rule delaying the effective date by 20 months (from June 2017 to February 2019), of a significant set of Amendments to the RMP Rule that had been promulgated in the final days of the Obama Administration. 

This ruling creates significant concern for the regulated community.  The Amendments require major overhauls to they way covered employers implement their risk management plans.  But EPA is still advancing a rulemaking to rescind and narrow those Amendments.  Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs.

Indeed, EPA’s express purpose of the lengthy delay of the RMP Amendments was to provide time for EPA to reconsider and eliminate or curtail the sweeping new provisions.  The D.C. Circuit criticized EPA for its attempts to delay a regulation that it had just recently issued, stating in the written opinion that:

“the Delay Rule thus contains no provisions that advance or accomplish these goals [of preventing accidental releases and protecting human health and the environment], but instead delays these objectives contrary to EPA’s prior determinations in a rulemaking.”

While the Court criticized the agency for Continue reading →

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

Eric J. Conn Leave a comment

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tues., Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.

Agenda

1:00 PM – Registration and Networking
1:30 PM – OSHA Panel
  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading →

OSHA’s Policy of Public Shaming: Status and Future under the Trump Admin. [Webinar Recording]

Eric J. Conn Leave a comment

On August 21, 2018, Eric J. Conn and Aaron R. Gelb of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “OSHA’s Policies of Public Shaming: the Status under the Trump Admin. and the Future.“

As a small budget agency, OSHA has long looked for policies that will leverage individual enforcement actions to have the greatest impact on Industry.  That is the origin of OSHA’s controversial policy of “Regulation by Shaming.”  During the Obama Administration, employer shaming became a significant enforcement tool and came in many forms, from increasing use of enforcement press releases that included embarrassing and inflammatory quotations about employers, to maintaining a public bad actors list in connection with the Severe Violator Enforcement Program, and the pièce de résistance – publishing a Rule by which OSHA will collect and publish employers’ injury and illness data and details about fatalities.

The Trump Administration has signaled it will take a different approach to public shaming, but at the very least, the vestiges of these policies still remain, and some Administration actions suggest they are here to stay.

During this webinar, participants learned about:

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OSHA Announces Proposed Changes to its Controversial E-Recordkeeping Rule — Industry Comments Are Needed

Eric J. Conn 3 Comments

By the OSHA Practice at Conn Maciel Carey LLP

After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump Administration, OSHA has taken a step (hopefully just the first step) to pare down the E-Recordkeeping Rule.  Specifically, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule.  While the proposed change will undoubtedly be welcomed by Industry, the scope of the proposed change, however, does not address most of the fundamental concerns employers have repeatedly raised about the controversial rule.

The Proposed Rule includes only one significant change to the current regulation.  The proposal seeks to eliminate the requirement for the largest employers, those with establishments with 250 or more employees, to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses via OSHA’s new online web portal.  However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data via OSHA’s electronic portal.

Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the proposed rule does not disturb in any manner the highly controversial “anti-retaliation” provisions, or the interpretations of those provisions included in the 2016 final rule preamble.  In addition to establishing requirements for electronic submission of injury and illness recordkeeping data, the 2016 E-Recordkeeping Rule endeavored to restrict employers’ rights to adopt employee injury reporting policies and expanded OSHA’s enforcement authority by introducing a vague new set of “anti-retaliation” provisions.

Particularly controversial was the Continue reading →

Inaugural Process Safety Summit in Washington, DC – October 22-23, 2018

Eric J. Conn Leave a comment

Attend the Inaugural Process Safety Summit in Washington, DC on October 22-23, 2018, presented by Conn Maciel Carey LLP and sponsored by the American Fuel and Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API).

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC will be an annual event featuring a full-day program in Washington, DC gathering interested stakeholders from the chemical, petrochemical, and petroleum refining industries, and other industries with operations impacted by OSHA’s PSM Standard and EPA’s RMP Rule.

The focus of the Process Safety Summit in Washington, DC will be on the process safety regulatory landscape.  The full-day Program will cover the PSM/RMP rulemakings, enforcement programs, significant cases, trends through the transition to the new Administration, best practices, and other key process safety regulatory issues impacting Industry.

This Process Safety Summit fills an important gap in Washington, DC.  Although there are opportunities for trade groups and employers to interact with key government regulators, none of those opportunities focus on process safety, and the process safety-oriented events that do exist are far from Washington, DC, making it hard to attract more than one senior agency official.

The format and agenda will include Continue reading →

Conn Maciel Carey Adds Seasoned Employment Attorney Megan Stevens Shaked to Expand its California Practice

Andrew J. Sommer 1 Comment

Conn Maciel Carey is pleased to announce that Megan Stevens Shaked has joined the firm as a senior associate in its San Francisco, CA office.  Ms. Shaked, an experienced employment litigator, will represent clients in a wide-range of employment-related litigation, and counsel clients in myriad legal issues that California employers face in the workplace.

“Megan brings a depth of experience with employment litigation, counseling and training that will enhance the employment law services we provide to employers across all industries,” said Andrew J. Sommer, head of the firm’s California practice.

She will also represent clients in connection with inspections, investigations and enforcement actions involving Cal/OSHA and other OSH-related matters on the West Coast.

“Megan is an ideal attorney to help grow our California practice in general, and our Cal/OSHA bench in particular,” said Eric J. Conn, a co-founder of the firm and Chair of the firm’s national OSHA Practice.  “California is a prominent base for our firm’s work, and Megan brings deep experience with the full range of employment issues that California employers face, including navigating the challenging waters of Cal/OSHA.”

Ms. Shaked has successful first-chair experience in employment law trials, and brings a creative approach to resolving tricky client issues.  Those qualities fit perfectly with the CMC model.  Ms. Shaked added that: Continue reading →