SB 553 – California Workplace Violence Prevention Bill Nears Becoming Law

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By Rachel L. Conn

The California Legislature introduced SB 553 – workplace violence: restraining orders and workplace violence prevention – earlier this year despite Cal/OSHA’s regulation on Workplace Violence Prevention in General Industry (WPV Standard) nearing the last stages of the rulemaking process. SB 553’s original version tracked the current Cal/OSHA Violence Prevention in Health Care Standard (8 CCR 3342) instead of the Cal/OSHA General Industry WPV Standard. This was problematic because SB 553 had more extensive requirements than the Cal/OSHA draft WPV Standard.  It also included retail-specific provisions on shoplifter training and a prohibition on requiring workers who are not dedicated safety personnel from confronting suspected active shoplifters.

However, last week the bill was amended to align more closely with the draft Cal/OSHA WPV Standard. The bill passed committee on Friday and will now go to a full vote in the California Legislature. The latest version of the bill includes the following: Continue reading →

Join CMC’s Employer Coalition to Work on OSHA’s Inspection Walkaround Rulemaking (Expanding Union Access to Non-Union Workplaces)

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By Eric J. Conn and Mark Trapp

We wanted to reach out to notify you about OSHA’s latest gift to organized labor.  Consistent with the Biden Administration’s promise to be “the most labor-friendly administration in history,” last week, OSHA revealed its Notice of Proposed Rulemaking about the “Worker Walkaround Representative Designation Process.”  Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is the regulation governing the rights of third parties to participate as employee representatives in OSHA inspections. The NPRM for OSHA’s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces.  Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.

History of Union Access to Workplaces During OSHA Inspections

As a reminder, The Obama/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013.  The interpretation letter responded to this inquiry by a labor union: “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?”

OSHA has an existing regulation at 29 C.F.R. § 1903.8(c) that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking.  Here is the existing regulatory text: Continue reading →

Cal/OSHA and California Employment Law Summit: The Latest Rulemaking, Legislative, and Enforcement Priorities

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You are cordially invited to attend the Cal/OSHA and California Employment Law Summit presented by Conn Maciel Carey LLP.

Conn Maciel Carey LLP’s Inaugural Cal/OSHA and California Employment Law Summit is an in-person program presented by the California-based attorneys in CMC’s national OSHA • Workplace Safety and Labor • Employment Practice Groups, to update California employers on important developments involving workplace safety and health issues in California.​

Learn How to Navigate California Requirements

Continue reading →

Enough On Fed OSHA, Here’s What to Know About the State OSH Plans [Webinar Recording]

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On Thursday, August 10, 2023, Aaron Gelb, Rachel Conn, Megan Shaked, Valerie Butera, and Victoria Voight presented a webinar titled Enough on Fed OSHA, Here’s What to Know About the State OSH Plans.

Twenty-two states have OSHA-approved state plans that cover both private and state and local government workers. State plans have their own penalty reduction policies and procedures that may differ from OSHA but must be at least as effective. While the regulations are often like OSHA, they are not identical – employers in state-plan states cannot assume that complying with federal OSHA regulations will suffice. Keeping up with the changes in policies and procedures in state plan states can also be challenging for employers. During this webinar, we discussed how state plans differ throughout the country.

Participants in this webinar learned: Continue reading →

Latest Cal/OSHA Updates: Revised Indoor Heat Illness Standard Released and Advisory Committee Meeting Recap

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By Megan Shaked, Samuel Rose, and Rachel Conn

Revised Draft Indoor Heat Illness Standard Released

On August 4, 2023, the Standards Board issued its latest revised draft of the Indoor Heat Illness Prevention Standard. During the previous comment period, there was extensive discussion regarding lowering the temperature at which the regulation would apply. However, the latest revised draft maintains the 82 degrees Fahrenheit indoor temperature trigger. Nonetheless, there were notable changes: Continue reading →

Conn Maciel Carey LLP Elevates Megan Shaked to Partner

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

Ms. Shaked, a seasoned employment litigator and Cal/OSHA practitioner based in San Francisco, CA, represents employers on a wide range of employment matters, including Cal/OSHA investigations and appeals of Cal/OSHA citations, claims of discrimination and harassment, wrongful termination, wage and hour violations, and whistleblower actions.  She also conducts workplace harassment prevention training, and counsels employers on workplace safety compliance, the development of employee handbooks, hiring and termination decisions, leaves of absence and accommodations, and wage and hour compliance.

Ms. Shaked was an integral part of the expansion of CMC’s California Practice when she joined the firm back in 2018.  And now she is a key player in the next big expansion of the firm’s California Practice. Continue reading →

Latest Cal/OSHA Updates: Prepare For A Packed Fall

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By Rachel Conn, Samuel Rose, and Megan Shaked

During last week’s California Occupational Safety and Health Standards Board meeting, the spotlight was on silica. But an equally clear message was front and center throughout the meeting – Cal/OSHA has a packed rulemaking agenda.

Here’s the latest on Cal/OSHA rulemaking and what to expect in the coming months:

Silica Emergency Temporary Standard

The Standards Board granted, in part, Petition 597, to amend the current regulation on Occupational Exposures to Respirable Crystalline Silica (section 5204) via Emergency Temporary Standard (ETS) to address the growing number of reported cases of advanced silicosis among workers exposed to silica in engineered stone fabrication.

Following extensive public comment, Cal/OSHA argued that an ETS would be Continue reading →

2023 Mid-Year Review of OSHA Enforcement and Regulatory Developments [Webinar Recording]

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On Thursday, July 20, 2023, Eric J. Conn, Rachel Conn, Dan Deacon, and Darius Rohani-Shukla presented a webinar covering a Mid-Year Review of OSHA Enforcement and Regulatory Developments.

Having shared a series of predictions during our January webinar regarding OSHA’s expected enforcement and rulemaking priorities in Year 3 of the Biden Administration, we took stock of what has happened at DOL and OSHA during the first 6 months of 2023, discussed surprise developments, and looked ahead at the remainder of 2023 and beyond. We took a close look at enforcement trends, including new emphasis programs, and checked in on various rulemakings likely to impact the regulated community. At the same time, we evaluated what has been happening with OSHA’s budget and staffing trends.  Finally, we looked ahead to what employers can expect from OSHA over the balance of this presidential term.

Participants in this webinar learned: Continue reading →

White House Clears the Final Amended Electronic Recordkeeping Rule

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By Eric J. Conn and Daniel C. Deacon

The White House has given final sign-off on OSHA’s Amended Regulation — Improved Tracking of Workplace Injuries and Illnesses (aka the Electronic Recordkeeping or E-Recordkeeping Rule).  The Preamble and the Final Rule have been sent to the Federal Register for official publication. The rule package will appear in the Federal Register this Friday (July 21, 2023), but in the meantime, the Administration has posted a pre-publication version of the final rule package.  So we now have the final regulatory text, OSHA’s rationale for its final rulemaking decisions, and its analysis of the stakeholder comments about the proposed amended rule.  Here’s what we know.

Details About the Final Rule

The final amended E-Recordkeeping Rule will take effect on January 1, 2024.  The regulatory text and the Preamble make clear that because this final rule becomes effective before the next E-Recordkeeping submission deadline in 2024, OSHA intends for March 2, 2024 to be the first submission deadline for the new information required to be submitted under this rule.

Unfortunately, OSHA has included each of the proposed changes in the final rule, and even worse, it added in an element that goes beyond what had originally been proposed.  As a reminder, the proposed amended rule published by OSHA in March 2022 included three key revisions: Continue reading →

OSHA Launches Enforcement National Emphasis Program Targeting Warehouses, Distribution Centers and High-Risk Retailers

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By Eric J. Conn and Darius Rohani-Shukla of Conn Maciel Carey LLP’s National OSHA Practice

On July 13, 2023, OSHA announced a new enforcement National Emphasis Program focused on Warehousing and Distribution Center Operations.  The new NEP was signed-off by the Head of OSHA a month ago – on June 14, 2023 – so it became effective as of July 13, just as the public was first learning about it.  We have combed through the Directive for OSHA’s new Warehouses NEP and identified the following key information that warehouse operators and retailers need to know.

What motivated OSHA to Launch the Warehouses NEP?

Over the last ten years, warehousing and distribution centers have experienced tremendous growth, with the number of estimated employees in that industry nearly tripling from 2011 to 2021.  As part of that growth, the injury and illness rate in that space has also dramatically increased.  Specifically, OSHA’s perspective is that this NEP is warranted because of Bureau of Labor Statistics (BLS) data that shows that injury and illness rates for the establishments covered by the NEP are significantly higher than the overall industry average.  As a result, OSHA’s new Warehouses NEP is tailored to address the hazards in those workplaces that OSHA deems as posing the most safety and health hazards.

The Assistant Secretary of Labor for OSHA, Doug Parker, had this to say about the new Warehouses NEP:

“Our enforcement efforts are designed to do one thing: lead to permanent change in workplace safety.  This emphasis program allows OSHA to direct resources to establishments where evidence shows employers must be more intentional in addressing the root causes of worker injuries and align their business practices with the goal to ensure worker health and safety.”

What Employers are covered by this NEP?

This NEP targets warehouse-related industries as identified by seven NAICS codes, as well as a set of “high-injury retail establishments,” as identified by five NAICS codes.  Here are the specific warehouse industry segments covered by the NEP:

The so-called “high-injury rate retail establishments” are a subset of the retail industry with particularly high industry average DART rates; i.e., high rates of injuries and illnesses that cause days away from work, restricted duty, or job transfer.  They were included because OSHA believes they present the same or similar hazards as warehousing and distribution facilities, particularly in loading and storage areas.  Here are the specific retail industry segments covered by this NEP: Continue reading →

Preeminent Cal/OSHA Attorney, Rachel Conn, Joins Conn Maciel Carey as Chair of the Firm’s California Practice

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Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in Workplace Safety – OSHA/MSHA, labor and employment, and litigation, is delighted to announce that attorney Rachel L. Conn has joined the firm’s San Francisco, CA office as Chair of the California Practice.

Ms. Conn comes to CMC from Nixon Peabody, where she was the Head of the OSHA Practice. At CMC, Ms. Conn will lead the team representing California and national employers in inspections, investigations and enforcement actions involving Cal/OSHA, Federal OSHA, and other State OSH Plans, especially the West Coast DOSH states. With strong experience in labor and employment law, she will also help lead the California labor and employment defense practice. Continue reading →

Conn Maciel Carey LLP Launches Michigan Office With the Addition of Acclaimed OSHA Defense Attorney Valerie Butera

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Conn Maciel Carey LLP (CMC), a Washington, D.C.-based boutique law firm with national practices in workplace safety (OSHA and MSHA), labor and employment, and litigation, is pleased to announce the opening of a Detroit Metro Area, Michigan office and the addition of Senior Counsel, Valerie Butera.

Ms. Butera is among a group of only twenty-five Occupational Safety and Health Law defense attorneys rated by Chambers USA, and the only Michigan-based OSHA attorney rated by Chambers.  She has extensive experience representing employers and trade associations in the full range of workplace safety and health law regulatory and enforcement matters across a wide range of industries, from chemical and petrochemical manufacturing, to petroleum refining, and automotive, electric utility, manufacturing, construction, railway, grain, retail, hospitality, healthcare, and food services. Continue reading →

Inspection, On! OSHA Prepares to Hook New England Seafood Processors With New Local Emphasis Program

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By Aaron Gelb and Darius Rohani-Shukla

Continuing its effort to find new ways to proactively address perceived hazards across a variety of industries, OSHA launched another new Local Emphasis Program (“LEP”) on June 1, 2023, targeting the seafood processing industry in Region I.  OSHA intends to use this LEP in an effort to mitigate hazards and improve safety standards in the seafood processing industry and related merchant wholesaler operations. Like the food manufacturing LEPs recently launched in Region V, this LEP will focus on machine guarding, lockout tagout, confined spaces, falls, and other critical safety concerns in the seafood processing industry.

Why is OSHA Targeting the Seafood Processing Industry? Continue reading →

10 Reasons Why It Is Critical For Employers To Get OSHA Injury and Illness Recordkeeping and Reporting Right — And How to Ensure It is Done Right

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By Eric J. Conn and Lindsay A. DiSalvo

Although OSHA injury and illness recordkeeping and reporting has always been important from an OSHA compliance perspective, making correct recording and reporting decisions (i.e., not over- or under- recording or reporting) has never been more vital than it is today. We are at a moment in OSHA’s history when the agency is clearly staffing up and ramping up inspections and enforcement generally, and with respect to injury and illness recordkeeping specifically, OSHA is on the precipice of issuing a significant expansion of the injury and illness data required to be submitted to OSHA each year.  Indeed, OSHA sent the final Electronic Recordkeeping Rule to OMB for final review, which is the last step in the rulemaking process before the rule is published.

OSHA developed and repeatedly touted its injury and illness recordkeeping program as a “no fault” system, requiring certain injuries and illnesses to be recorded (or proactively reported to OSHA), regardless whether the employer or its safety program could have prevented the injury. In practice, however, recordkeeping data has become another tool OSHA uses to justify enforcement efforts and actions against specific employers or their industries. From publicizing recordkeeping data to “shame” employers, or using the data to target enforcement resources, OSHA has made it essential for employers not to over-record cases; i.e., they must carefully scrutinize each potential recordable injury or illness, rather than erring on the side of recording every close call. Of course, there are also real and growing enforcement risks for under-recording; i.e., failing to record or report cases that should have been recorded or reported.

Accordingly, it is more important than ever before to make sure your organization fully understands the nuances of OSHA’s recordkeeping and reporting requirements.

Here is our take on the Top 10 reasons it is critical for employers to get OSHA injury and illness recordkeeping and reporting right (not recording or reporting more cases than necessary, and not failing to record or report cases that should be):

1.  OSHA’s Electronic Recordkeeping, which puts previously internal data now in OSHA’s hands and on its public website, is about to expanded significantly.

As a result of OSHA’s E-Recordkeeping rule, employers’ injury and illness data is now published on OSHA’s public website.  Unfortunately, because OSHA’s injury and illness recordkeeping program was designed to Continue reading →

Eleventh Circuit Vacates OSHA General Duty Clause Citation for Forklift Under-Ride Hazard

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By Eric J. Conn and Ashley D. Mitchell

On May 30, 2023, the US Court of Appeals for the Eleventh Circuit issued an opinion in the case of Chewy, Inc. v. the US Department of Labor that is very important for US retailers and others who manage warehouses and major forklift operations.

The case involves a May 2019 OSHA citation issued to Chewy, Inc., a pet products online retailer, alleging a violation of the OSH Act’s General Duty Clause for the retailer failing to protect its warehouse employees from an “under-ride” hazard, which occurs when the lowest cross bar of a warehouse storage rack is high enough to allow a forklift to drive underneath, but low enough that upon driving underneath, it can pin the forklift operator between the cross bar and the seat/cab of the forklift.  The citation arose out of a December 16, 2018, incident at Chewy’s Ocala, FL warehouse, when a standup forklift operator died by asphyxiation after becoming pinned between the forklift and a metal storage rack.  This was the second under-ride incident at Chewy’s warehouse in a six-month period, although the first under-ride incident was not fatal.  In the Ocala warehouse, Continue reading →

Uh Oh, OSHA’s Here: How to Prepare For and Manage OSHA Inspections [Webinar Recording]

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On Thursday, June 8, 2023, Aaron Gelb, Mark Ishu, Dan Deacon and Ashley Mitchell presented a webinar regarding Uh Oh, OSHA’s Here: How to Prepare For and Manage OSHA Inspections.

Over the past year, the number of OSHA inspections has soared, especially since the COVID-19 pandemic eased, and the National Emergency has now come to an end. We are seeing, as part of OSHA’s focused effort to use (and sharpen) all the tools in its toolbox, more inspections, higher penalties, record numbers of $100K+ citation packages, and a continuing rise in willful and repeat citations and worker safety criminal prosecutions. OSHA continues, also, to look for new and creative ways to proactively inspect employers with targeted enforcement initiatives and emphasis programs, while also significantly expanding punitive measures such as the Severe Violator Enforcement Program (or SVEP), and the new Instance-by-Instance citation policy), creating a number of minefields for even the most conscientious employers. In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during an inspection, are more dire now than ever.

This webinar provided Continue reading →

Third Circuit Applies Narrow Reading of the OSH Act’s Private Right of Action

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By Megan Shaked and Eric Conn

In a case of first impression, the United States Court of Appeals for the Third Circuit held that a limited private right of action included in the Occupational Safety and Health Act of 1970 (the OSH Act) is very narrow and it does not continue after the Department of Labor completes its enforcement proceedings.

The OSH Act does not provide employees or other interested parties with a private right of action against employers to enforce OSHA standards or OSH Act requirements against employers, but it does, in very limited circumstances, allow employees to sue OSHA for the agency’s failure to address workplace safety concerns under.  Historically, employees’ role in OSHA enforcement is just to observe workplace safety violations and lodge anonymous complaints with OSHA, requesting that OSHA conduct an inspection.  OSHA then makes its own independent determination whether there are grounds for safety violations; i.e., whether to issue citations.

One area where employees have a slightly more power is in the context of imminent dangers.  OSHA has authority under the OSH Act, when it identifies an imminent danger (or is informed of an imminent danger by a whistleblower-employee), to seek injunctive relief to promptly address the danger or stop work at the workplace.  In this rare circumstance—where the risk of danger in the workplace is “imminent”—employees can attempt to force their employers’ and OSHA’s hands by Continue reading →

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

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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 2nd 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

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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]

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On Thursday, May 18, 2023, Kate 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

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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

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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. Immigration,Document.,3d,IllustrationBoth 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

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

On March 20th 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

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

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Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that 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 →