[Webinar] OSHA’s Respiratory Protection Rules: Top 5 Reasons to Get it Right and Employer Mistakes

On Wednesday, May 12th, join Aaron Gelb, Amanda Strainis-Walker, Beeta Lashkari and Ashley D. Mitchell for a webinar regarding OSHA’s Respiratory Protection Rules: Top 5 Reasons to Get it Right and Employer Mistakes.

While respiratory protection has been top of mind for the past year due to COVID-19, OSHA’s respiratory protection requirements apply to a wide range of industrial hygiene hazards, from hazardous chemicals to oxygen deficient environments, and dusts, smoke, gases, and vapors. Given that airborne hazards may cause death or serious disease, OSHA requires employers to assess their workplaces to identify hazards that necessitate respiratory protection, and for those, to select the appropriate respirator, train employees how to properly use them, and ensure that the respirator fits properly, is safe to use, and is actually being worn. As such, it is no surprise that OSHA’s respiratory protection standard ranks among the 5 most frequently cited standards each year.

This webinar will highlight Continue reading

Vaccinated Workers Are Not Required to Quarantine Under Cal/OSHA’s COVID-19 ETS, But Masks and Distancing Are Still Required

By Conn Maciel Carey’s COVID-19 Task Force

The California Department of Public Health (CDPH) issued new guidance yesterday – COVID-19 Public Health Recommendations for Fully Vaccinated People – that affects some aspects of Cal/OSHA’s COVID-19 ETS.  For purposes of this discussion, people are considered fully vaccinated for COVID-19 either two weeks or more after they receive the second dose in a two-dose series (Pfizer-BioNTech or Moderna), or two weeks of more after they received a single-dose vaccine (Johnson and Johnson/Janssen).

CDPH Vaccination GuidanceRelevant to application of Cal/OSHA’s COVID-19 ETS requirements to fully vaccinated workers, the new CDPH guidance provides that in a workplace setting, fully vaccinated workers are no longer required to quarantine following a known exposure at work, so long as the exposed vaccinated worker remains asymptomatic.  But that is as far as the guidance goes in providing relief under Cal/OSHA’s COVID-19 ETS for vaccinated workers.

Specifically, employers must still follow all other requirements of the ETS with respect to fully vaccinated workers.  Regardless of vaccination status, an exposed fully vaccinated worker or a fully vaccinated worker who is part of a group of workers covered by an outbreak determination must still Continue reading

Attorney Spotlight – Meet Eric Conn!

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. For more than twenty years now, Eric’s practice has focused exclusively on issues involving occupational safety and health law.

Before launching his own OSHA Practice, Eric practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission. Eric then became Head of an OSHA practice at a large employment law firm that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in 2014.

Mr. Conn is a popular speaker on OSHA topics, including as the director of Conn Maciel Carey’s annual OSHA Webinar Series, and he regularly keynotes trade group and industry conferences.  He is also the curator of the firm’s award-winning OSHA Blog, the OSHA Defense Report, and he is often quoted as a leader in the field in trade publications.

Eric and his team of OSHA-specialist attorneys develop safety and health regulatory strategies for employers across all industries with a particular emphasis on:

  • Advising and representing employers through inspections, investigations and enforcement actions involving OSHA and other safety-related agencies
  • Managing the full range of litigation against OSHA
  • Representing employers during U.S. DOJ investigations and prosecutions of alleged OSH Act criminal violations
  • Developing and auditing safety programs and policies
  • Providing workplace safety training and compliance counseling for employers

Get to Know Eric!

Where is your favorite vacation spot?   Continue reading

“What’s The Hazard” Podcast – Special Guest Eric Conn of Conn Maciel Carey

Conn Maciel Carey’s Co-Founder and OSHA Practice Chair, Eric J. Conn, made a special guest appearance on the most recent episode of the “What’s The Hazard” safety podcast series hosted by Doug Fletcher, of Fletcher Safety Consulting.

During this interview, Eric shared an OSHA defense counsel’s insight about the highly anticipated Federal OSHA COVID-19 Emergency Temporary Standard, and tips for employers about managing OSHA inspections, including the most important steps to prepare for inspections, common mistakes employers make during inspections, and strategies to achieve successful outcomes at the end of inspections.

Click here to listen to the full podcast.

Fed OSHA’s COVID-19 Emergency Temporary Standards Officially Submitted to OMB for Final Approval

By Conn Maciel Carey’s COVID-19 Task Force

We have officially entered the phase of Federal OSHA’s emergency rulemaking when things are going to start to move very quickly.  After hitting the “refresh” button more times over the last month than we would like to admit, today we finally saw what we have been expecting since mid-March – Federal OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB:

  • Has received a proposed COVID-19 rule from OSHA;
  • The rule is in the “Final Rule” stage;
  • The rule is characterized as “Economically Significant”; and
  • Regulatory text is not available to be reviewed by the public.

The Department of Labor issued this press statement confirming that the rule was sent to OMB:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

Of particular note in this press statement is DOL’s use of Continue reading

OSHA Takes A Big Step Towards Issuing a COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

As we continue our marathon COVID-19 ETS watch, some news today made the future of OSHA’s emergency rulemaking more clear.  OSHA has officially delivered a proposed COVID-19 emergency temporary standard to the White House’s Office of Management Budget today, Monday, April 26th.  Although the OMB website is still not showing a record of the rule, the Department of Labor issued this statement:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

We had circled this Wednesday, April 28th, on our calendar as the likely day OSHA would officially announce it was going to issue an ETS because that is Workers Memorial Day, and that seemed to be a good symbolic occasion to announce a rule designed to address a pandemic that has claimed so many lives.  Here’s a link to the Dept. of Labor’s Virtual Workers Memorial Day event, and here’s how the event is billed: Continue reading

A Private Right of Action to Enforce Federal OSHA Violations Would Benefit Attorneys, Not Employees

By Eric J. Conn and Mark M. Trapp

When the Trump Administration’s OSHA declined repeatedly to issue a COVID-19 emergency temporary standard and otherwise favored issuing guidance over citations, the agency faced a series of lawsuits and legal challenges from worker advocacy groups and national unions.  OSHA prevailed in those actions, retaining its primacy and exclusive authority to make workplace safety enforcement decisions.  But in the wake of those failed legal challenges, pro-labor advocates and Democratic politicians and policymakers have begun a serious push to establish a private right of action for employees and their representatives under the Occupational Safety and Health Act.

For example, in July of 2020, the Center for Progressive Reform (CPR), a left-leaning think tank focused on advancing policies to address health and well-being of workers and others, issued a report calling on Congress to legislate a private right of action for employees about workers safety conditions. The purpose of CPR’s policy proposal is explained this way:

OSHA has failed not only to protect workers from existing hazards – ranging from unsecured trenches to infectious diseases like COVID-19 – but has also taken minimal action to tackle emerging risks, such as those associated with climate change, the reshoring of manufacturing jobs, increased automation, and the expansion of artificial intelligence in the workplace. . . .  [I]t is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority.

Continue reading

COVID-19 OSHA Enforcement and Regulatory Update [Webinar Recording]

On  April 20, 2021, Aaron GelbAmanda Strainis-Walker and Dan Deacon presented a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants learned about: Continue reading

[Webinar] COVID-19 OSHA Enforcement and Regulatory Update

On Tuesday, April 20, 2021 at 1:00 P.M. ET, join Aaron Gelb, Amanda Strainis-Walker and Dan Deacon for a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update”.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants will learn about: Continue reading

Pres. Biden Nominates an Assistant Secretary of Labor for OSHA – Doug Parker, the Current Head of Cal/OSHA

By Eric Conn, Fred Walter, and Beeta Lashkari

Last Friday, April 9th, the White House announced Pres. Biden’s nomination of Doug Parker for Assistant Secretary of Labor for OSHA – the top job at federal OSHA.  Mr. Parker is currently the Chief of California’s Division of Occupational Safety and Health (Cal/OSHA), serving as the Head of Cal/OSHA since the summer of 2019.  Mr. Parker was considered a leading candidate for this nomination to head OSHA since he was picked for a spot on the Biden-Harris Labor Transition Team to focus on worker safety and health issues.

In his role as Division Chief at Cal/OSHA, Mr. Parker has been involved in numerous major developments, including:

  • Developing the enforcement plan for Cal/OSHA’s new-ish regulation for Workplace Violence Prevention in Healthcare;
  • Rolling out Cal/OSHA’s emergency Wildfire Smoke Rule and overseeing the development of the Permanent Wildfire Smoke Rule;
  • Overseeing an extension of the statute of limitations for injury and illness recordkeeping violations – making them “continuing violations” for the five-year record-retention period;
  • Advancing a rulemaking for an Indoor Heat Illness Prevention standard; and
  • Implementing a Cal/OSHA operational change to significantly expand the agency’s definition of “Repeat” violations

Even with all that, Mr. Parker’s tenure at Cal/OSHA will likely be best remembered for his role in developing and rolling-out Continue reading

Another Status Update about Federal OSHA’s COVID-19 Emergency Rulemaking

By Conn Maciel Carey’s COVID-19 Task Force

It has been nearly a full month since the deadline set by President Biden’s Day-1 OSHA Executive Order for Federal OSHA to determine the necessity of and to issue a COVID-19 Emergency Temporary Standard (ETS), and we are all still waiting for the big news.  OSHA has not issued a final ETS.  The Office of Management and Budget’s (OMB) website has not been updated to reflect that it has received a proposed ETS from OSHA.  OSHA has not even explicitly announced that it will issue a COVID-19 ETS.

According to reports last week from Bloomberg Law, brand new Secretary of Labor Marty Walsh requested a hold on the release of an OSHA ETS, but according to a DOL spokesperson, that “hold” was so that OSHA could make “a rapid update based on the Centers for Disease Control and Prevention analysis and the latest information regarding the state of vaccinations and the variants.”  The sense from that reporting was that OSHA would be quickly updating certain provisions in a near-final draft of the ETS to align with the latest CDC guidance.  No suggestion that an ETS would not be issued.

However, later in the week, Politico reports that Secretary Walsh gave a public interview in which he said this:

That was the first time since President Biden’s Executive Order that we heard anyone at OSHA or the Department of Labor imply that a COVID-19 ETS may not happen, and it conflicts directly with Continue reading

Cal/OSHA’s COVID-19 Emergency Temporary Standard and Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated workers continues to rise, and despite guidance from the CDC lifting certain restrictions against fully vaccinated individuals, Cal/OSHA’s current official position, as reflected in its COVID-19 ETS FAQs, is that “[f]or now, all prevention measures must continue to be implemented” for vaccinated persons.  The same set of FAQs, however, also informs us that “[t]he impact of vaccines will likely be addressed in a future revision to the ETS.”  See Cal/OSHA COVID-19 ETS FAQs “Vaccines” FAQ #1.

Following the February 11, 12, and 16 Cal/OSHA COVID-19 ETS Advisory Committee meetings, in which CMC participated on behalf of our California Employers COVID-19 Prevention Coalition, Deputy Chief of Cal/OSHA Research and Standards shared an updated version of a “Discussion Draft” of the ETS that reflects changes under consideration by the agency.  The issue of how vaccinated employees should be treated under the ETS was a major topic of discussion during the Advisory Committee meetings, and potential changes to the ETS around that are reflected in notes in the Discussion Draft.

While the notes are not necessarily proposed amended regulatory text (rather, they largely incorporate committee members’ feedback ), reading the tea leaves from the Advisory Committee meetings, it is clear that Cal/OSHA Continue reading

Due to Low Risk of COVID-19 Surface Transmission, CDC Relaxes Cleaning and Disinfecting Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Early in the pandemic, popular sentiment—and to a lesser extent, the scientific community—believed that surface transmission of COVID-19 was one of the primary vectors of transmission.  Over time, however, epidemiologists gained a better understanding of how the virus was most typically transmitted.  As a result, the CDC’s guidance evolved to a point where surface transmission was viewed as a less significant mode of transmission than person-to-person transmission.

Throughout all that, spring cleaning took on a new meaning in 2020, as people rushed to purchase all the disinfectant wipes and sprays they could find, wiping down groceries and mail, sanitizing their hands, and treating door handles like they were radioactive.  Workplace sanitation similarly became an area of emphasis as employers distributed wipes, sprays and pump bottles throughout their facilities, hired additional janitorial staff and, in many cases, spent exorbitant sums on third-party vendors to clean and disinfect the workplace, even introducing aggressive surface cleaning techniques like fogging. And once the hygiene frenzy took hold in the workplace, there has been little reprieve for employers from regulatory bodies.  State and local health departments, federal OSHA and State OSH Plans, and even some state legislatures, recommended or imposed strict sanitization protocols, including requirements to routinely wipe down shared surfaces with disinfectant, to close workplaces for deep cleaning even when days had passed since a COVID-positive individual had been in the area, and implement daily cleaning and disinfecting plans.  The financial cost for employers associated with these requirements rose quickly.  Like pre-shift temperature screens, some of these requirements have persisted even after the science has recognized their limited efficacy.

Earlier this week, more than a year after the COVID-19 pandemic began, the CDC has released new guidance clarifying that the risk of contracting COVID-19 from contaminated surfaces is, in fact, quite low. Continue reading

Cal/OSHA Advisory Committee Convened as Division Considers Changes to COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

Over four months after the California Occupational Safety and Health Standards Board (“Board”) unanimously adopted a COVID-19 Emergency Temporary Standard (“ETS”), the Division of Occupational Safety and Health (the “Division”) has been busy considering potential changes to the emergency regulation.  When the ETS was first adopted, the regulated community scrambled to understand and implement the regulation.  The Division issued numerous Frequently Asked Questions in January, February and March, but many questions remained unanswered.

Cal ETS Advisory CommitteeIn February, the Division convened an Advisory Committee to provide input on possible changes to the ETS.  The Advisory Committee consisted of members from business and industry, labor and community groups, public agencies, and the health sciences.  A coalition of California employers organized by Conn Maciel Carey – the California Employer COVID-19 Prevention Coalition (the “Coalition”) – was one of a very small group of industry representatives invited to participate on the Advisory Committee.

Ahead of the Advisory Committee meetings, which were held on February 11, 12 and 16, Cal/OSHA circulated Discussion Drafts reflecting changes to be considered during the meetings.  Over the course of the 3-day Advisory Committee meeting, the Coalition had the opportunity to provide meaningful input on it members’ concerns and recommendations to improve the ETS.

On March 2, the Coalition submitted written comments to the Chief of the Division.  The Coalition addressed a variety of concerns, including suggesting the Division: Continue reading

Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My! [Webinar Recording]

On March 23, 2021, Andrew J. SommerFred Walter and Megan Shaked presented a webinar regarding Annual Cal/OSHA Update: Legislation, Regulations, Guidance, Executive Orders and More! Oh My!

This year’s annual Cal/OSHA update covered the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We also alerted you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar learned about: Continue reading

New OSHA Interpretation Letter Clarifies “Double Reporting” Issue

By Eric J. Conn and Lindsay Disalvo

In a new formal Letter of Interpretation (“LOI”) responding to Conn Maciel Carey LLP (“CMC”), the Occupational Safety and Health Administration (“OSHA”) explains that employers are only obligated to report a serious injury or illness once, even if it ultimately results in more than one reportable outcome; e.g., an employer need not report to OSHA a later-developing employee death, if the employer has already reported to OSHA the hospitalization of that same employee from the same incident that resulted in his hospitalization.  A plain reading of OSHA’s hospitalization, amputation, and fatality regulatory language did not make this clear, nor did existing guidance provided by OSHA at the time.

CMC has represented numerous employers in contested cases and inspection disputes related to alleged failures to make that second report to OSHA when the same serious injury resulted in more than one reportable outcome under 29 C.F.R. 1904.39.  Thus, members of CMC’s national OSHA Practice submitted a request for an interpretation letter from Fed OSHA on April 14, 2020, seeking to address the confusion among the regulated community and OSHA’s field staff in area offices around the country about whether a second report was required.  As we expected, the answer is that double reporting is not required. Continue reading

Five Important Updates About Federal OSHA and Cal/OSHA COVID-19 Recordkeeping

By Conn Maciel Carey’s COVID-19 Task Force

It has been a little while since we last shared an update about COVID-19 recordkeeping issues. Since Fed OSHA issued its COVID-19 recordkeeping guidance in May 2020 and Cal/OSHA issued its controversial COVID-19 Recordkeeping FAQs with unique, more onerous requirements in June, the agencies have been mostly quiet about COVID-19 recordkeeping. But that does not mean there have not been significant developments in that area or that there are no important developments to monitor closely.

Here are five notable OSHA and Cal/OSHA COVID-19 recordkeeping updates that we wanted to share with you:

1.  Congressional Intervention About Cal/OSHA’s COVID-19 Recordkeeping FAQs

As we explained last year, Cal/OSHA’s May 27th COVID-19 Recordkeeping FAQs departed from Fed OSHA’s COVID-19 recordkeeping requirements in two key ways: (i) rejecting Fed OSHA’s recordability precondition of a positive COVID test; and (ii) flipping the burden of establishing work-relatedness on its head, setting instead a presumption of Cal-OSHA RK FAQSwork-relatedness if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.

Aside from being bad policy that will result in many non-work related illnesses being recorded on California employers’ 300 Logs, Cal/OSHA is not legally permitted to deviate from Fed OSHA’s recordkeeping requirements.

The latest big development on that front was a helpful letter from the U.S. Department of Labor responding to an inquiry about this issue from a group of California Congressmen, in which DOL confirms that Cal/OSHA should be following the same recordkeeping requirements as Fed OSHA. Despite the clear statements in Cal/OSHA’s FAQs that a “confirmed case” is not required for recordkeeping and that work-relatedness should be presumed, the federal Department of Labor explained in its letter to the Congressmen: Continue reading

Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My! [Webinar]

On Tuesday, March 23, 2021 at 1:00 P.M. PT / 4:00 P.M. ET, join Andrew J. Sommer, Fred Walter and Megan Shaked for a webinar regarding “Annual Cal/OSHA Update: Legislation, Regulation, Guidance, Executive Orders and More! Oh My!

This year’s annual Cal/OSHA update will cover the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We will also alert you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.

Participants in this webinar will learn about: Continue reading

Update about the Chemical Safety Board [Webinar Recording]

On March 16, 2021, Eric J. ConnMicah Smith and Beeta B. Lashkari presented a webinar regarding “Update about the Chemical Safety Board.”

For a small agency, a lot happened at the U.S. Chemical Safety and Hazard Investigation Board (the CSB) last year – and not all related to the COVID-19 pandemic. For example, the CSB promulgated an accidental release reporting rule, requiring employers to report certain chemical incidents to the CSB. Although the rule went into effect last Spring, the CSB set a 1-year enforcement “grace period” to allow time for the regulated community to become familiar with the rule, and for the Agency to develop guidance about the new rule. With the grace period ending later this month, on March 23, 2021, it is critical for employers to understand their new compliance obligations.

In addition, with expired terms, early departures, and the swearing in of a new Chairperson (but no other Board members), the CSB’s Board became a “quorum of one” for the first time, begging questions about its authority to vote on mission-critical work product, such as investigation reports, and its ability to conduct the agency’s business. Although Pres. Biden will likely nominate new Board Members, the Senate confirmation process can be a slog, meaning the CSB may maintain a quorum of one for an extended period.

Participants in this webinar learned about: Continue reading

Attorney Spotlight – Meet Kara Maciel!

Kara ACFKara Maciel is a founding Partner of Conn Maciel Carey and Chair of the firm’s national labor & employment practice group.

Ms. Maciel works to create workplace solutions for her clients.  She counsels clients on issues related to ADA accessibility requirements, wage hour compliance, prevention of harassment and discrimination, effective employment policies and procedures, and developing a compliant employee handbook. She also defends employers in litigation at both the federal and state levels.  For unionized and non-unionized companies, Ms. Maciel provides advice and counsel regarding the employer’s rights under the National Labor Relations Act.

Kara is an avid traveler (pre-pandemic) and foodie, so it makes perfect sense that she focuses much of her practice on issues facing companies in the hospitality industry (including hotel owners and managers, resorts, restaurants, and country clubs); retail; grocery; food distributors; and non-profit sectors.

Get to Know Kara!

Continue reading

OSHA Announces COVID-19 National Emphasis Program and Updated Interim Enforcement Response Plan

By Conn Maciel Carey’s COVID-19 Task Force

While OSHA is expected today, March 15th, to confirm that it will issue a COVID-19 Emergency Temporary Standard (ETS), and to get that ETS released within a month, there were also a couple of important developments last week regarding OSHA’s approach to COVID-19 enforcement.

On Friday afternoon, March 12th, OSHA launched a COVID-19 National Emphasis Program (“COVID-19 NEP”) to:

“focus its inspection and enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.”

This move by OSHA was not unexpected.  As we previously shared, Pres. Biden’s Day-1 OSHA Executive Order on Protecting Worker Health and Safety (the same EO that called for the COVID-19 ETS), separately called for OSHA to issue a COVID-19 NEP.

Goals of the COVID-19 NEP

In today’s announcement about the COVID-19 NEP, OSHA explained that “the goal of this NEP is to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”  The NEP includes “an added focus to ensure that workers are protected from retaliation” and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Industries and Workplaces Covered by the NEP

OSHA also explained that inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected by OSHA in 2020, but principally will focus on establishments in industries identified on targeting lists OSHA will develop now.  The NEP covers a broader set of workplaces than seems consistent with the goals of the NEP.  The directive creates three different lists of covered workplaces – high risk healthcare establishments and high risk non-healthcare establishments (which is how the NEP has been described), and also a third list of “Supplemental Industries for non-Healthcare in Essential Critical Infrastructure” that does not have the same high exposure risk characteristics of the first two lists.  The industries covered by these three lists are included at the bottom of this email.  Area Offices may also “add establishments to the generated master lists based on information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or from other federal agencies with joint jurisdictions, such as the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Agriculture (USDA), media referrals or previous OSHA inspection history).” Continue reading

[Webinar] Update about the Chemical Safety Board

On Tuesday, March 16, 2021 from 1:00 P.M. to 2:15 P.M., join Eric J. ConnMicah Smith and Beeta B. Lashkari for a webinar regarding “Update about the Chemical Safety Board.”

For a small agency, a lot happened at the U.S. Chemical Safety and Hazard Investigation Board (the CSB) last year – and not all related to the COVID-19 pandemic. For example, the CSB promulgated an accidental release reporting rule, requiring employers to report certain chemical incidents to the CSB. Although the rule went into effect last Spring, the CSB set a 1-year enforcement “grace period” to allow time for the regulated community to become familiar with the rule, and for the Agency to develop guidance about the new rule. With the grace period ending later this month, on March 23, 2021, it is critical for employers to understand their new compliance obligations.

In addition, with expired terms, early departures, and the swearing in of a new Chairperson (but no other Board members), the CSB’s Board became a “quorum of one” for the first time, begging questions about its authority to vote on mission-critical work product, such as investigation reports, and its ability to conduct the agency’s business. Although Pres. Biden will likely nominate new Board Members, the Senate confirmation process can be a slog, meaning the CSB may maintain a quorum of one for an extended period.

Participants in this webinar will learn about: Continue reading

Status Update About OSHA’s Emergency COVID-19 Rulemaking

By Eric J. Conn

We are sure many of you have been on the edge of your seat waiting for news about OSHA’s COVID-19 emergency temporary standard, which was expected to be issued by next Monday, March 15th  per Pres. Biden’s Day-1 OSHA Executive Order (EO).  So that you might be able to enjoy your weekend, we wanted to share with you the latest we are hearing about the status of the emergency rulemaking.

Status of Rulemaking

As we expected, the process OSHA is following (an emergency rulemaking with some time pressure set by Pres. Biden) does not include an opportunity for a formal pre-rule public notice-and-comment period.  Nevertheless, the rule still needs to go to the White House’s Office of Management and Budget (OMB) for approval before it is issued and can go into effect.  That likely means that the Office of Information and Regulatory Affairs (OIRA) within OMB will provide for stakeholder input in some form pursuant to Executive Order 12866.  As of now, OMB’s website still does not reflect a docket entry for OSHA’s COVID-19 ETS, and we have not otherwise heard or seen anything that would indicate the proposed rule has been delivered to OMB.  To monitor that, here is a link to OMB’s page about regulations under EO 12866 review — scroll down to the Department of Labor section of rules.

We also have started to hear through the rumor-mill that OSHA understand the Executive Order to require Continue reading

MSHA Issues Guidance for Mine Operators and Independent Contractors to Mitigate and Prevent Spread of COVID-19

By: Nicholas W. Scala and Conn Maciel Carey’s COVID-19 Task Force

On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) released additional – and more detailed – COVID-19 guidance.  Issued under the Biden Administration, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19” is significantly more detailed than what was provided by MSHA in 2020. The enhanced guidance recommends mine operators and independent contractors working at mines take additional action to limit the spread of COVID-19 in the workplace. This is akin to what the Occupational Safety and Health Administration (“OSHA”) has recommended in its COVID-19 guidance for general industry workplaces.

Similar to the previous guidance issued by the agency, MSHA continues to rely heavily on best practices outlined byCOVID guidnce the Centers for Disease Control (“CDC”), however, unlike MSHA’s 2020 guidance, this time the agency lays out specific actions and policies it “recommends” operators undertake while highlighting several specific, existing MSHA regulations that can be applied to COVID-19 prevention for enforcement purposes.

Below, we take a look at some of the most impactful elements of the MSHA guidance, but for a complete review of the MSHA guidance, join us on Thursday, March 18th for the MSHA Defense Report 2021 Webinar – COVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators.

COVID-19 Prevention Programs

 For the first time, MSHA formally recommends that each mine develop and implement a COVID-19 Prevention Program. These programs, which have been recommended by OSHA and are required in multiple state-plan OSHA Emergency Temporary Standards (“ETS”), are expected to be the mine’s (or contractor’s) outline and collection of COVID-19 mitigation efforts. Our Conn Maciel Carey workplace safety team has been recommending employers have these plans in place, and assisting clients with the development of COVID-19 Exposure Control and Response Plans throughout the pandemic.

Now, those employers regulated by MSHA will be expected to have the plans in place. In instances where OSHA has come on site for COVID-19 complaints or investigations, most often the first document request to the employer is for the site’s COVID-19 Prevention Program, even though under federal OSHA – as with MSHA – it is not currently required by regulation.

MSHA recommends a miner’s COVID-19 Prevention Program and plan would at a minimum: Continue reading

We are Celebrating International Women’s Day with our #ChooseToChallenge!

Female,Diverse,Faces,Of,Different,Ethnicity,Seamless,Pattern.,Women,EmpowermentToday is International Women’s Day, a global day celebrating the historical, cultural, and political achievements of women. To honor this day, we reflect on the significant progress made in gender equality and recognize the adversity that women continue to push through to attain a more inclusive world.  Just this year, Kamala Harris shattered the glass ceiling by not only becoming the first female U.S. Vice President, but the first Black, and South Asian-American U.S. Vice President.

This significant event in recent history showcases the many women who have paved the way.  Women such as Shirley Chisholm, the first Black woman elected to Congress; Eleanor Roosevelt, the first U.S. delegate to the United Nations; and, of course, Ruth Bader Ginsberg, the second female and the first Jewish female Justice of the U.S. Supreme Court.  As we already know, we experienced the loss of Justice Ginsberg just last year, but the impact she made as a pioneer who fought for women’s rights, and a leading voice for civil rights and liberties influences the gender equality movement to this day.

What do you #choosetochallenge?

Picture1The theme for International Women’s Day 2021 is #choosetochallenge.  This initiative is meant to drive actions that will create the gender-equal society we all deserve.  We must challenge ourselves to take accountability for our own thoughts and actions, and be the change we want to see in the world. Check out what Conn Maciel Carey’s Attorneys and Staff #choosetochallenge! Continue reading