OSHA’s 2017 in Review and a 2018 Forecast

January 16, 2018

Presented by Eric J. Conn, Kate McMahon, Amanda Strainis-Walker, Andrew Sommer, Micah Smith, Lindsay DiSalvo and Dan Deacon

​The ball has dropped, the confetti has been swept out of Times Square, and 2017 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, the question on everyone’s mind (well, maybe just OSHA nerds like us), is what can we expect from OSHA in the first full year of the Trump Administration?  In this webinar event, attorneys from the national OSHA Practice Group at Conn Maciel Carey will review OSHA enforcement, rulemaking, and other developments from 2017, and will discuss the top OSHA Issues employers should monitor and prepare for in the New Year.

​Participants in this webinar will learn:

• ​2017 OSHA enforcement data and trends, and the future of OSHA enforcement
• Rulemaking and deregulatory developments and predictions, including the status and future of the E-Recordkeeping, Silica and Beryllium Rules
• Status and future of the roll-out of Pres. Trump’s De-Regulatory Agenda
• Other significant OSHA policy issues to watch out for in the New Year

​Click here to register for this webinar.

February 20, 2018

Presented by Eric J. Conn and Amanda R. Strainis-Walker

​OSHA’s Lockout/Tagout (Energy Control) Standard is always one of OSHA’s most frequently cited standards, and with the “Amputations National Emphasis Program” continuing into 2018 as well as LOTO violations continuing to be considered “high emphasis hazards” that qualify employers into the Severe Violator Enforcement Program, it is critical for employers to get Lockout/Tagout right.  While LOTO continues to be an important standard, it also continues to be one of the least understood.  This webinar will highlight the most frequently cited aspects of the LOTO rule, explain some of the most misunderstood provisions of the rule, and forecast some potential changes to the rule and OSHA’s enforcement of it.

​Participants in this webinar will learn:

• ​Common mistakes employers make implementing LOTO programs, such as inadequate annual LOTO inspections and Group LOTO
• Nuances of the requirements to develop machine-specific LOTO procedures, and share them with contractors working at your site
• The mystery behind the Minor Servicing Exception
• The controversy around “unexpected energization” in OSHA’s LOTO Standard

​Click here to register for this webinar.

March 20, 2018

Presented by Amanda R. Strainis-Walker, Eric J. Conn, and Kate McMahon

​The Assistant Secretary of Labor for OSHA and the rest of the Leadership Team in OSHA’s national office in Washington, DC turned over the keys to the Trump Administration.The Trump Administration has now installed its own OSHA Leadership Team, and the backgrounds and regulatory philosophy between the outgoing and new decision makers and policymakers at OSHA could not be more different.

​This webinar will review the new appointees who have taken the reins at OSHA, and discuss how this new Leadership Team will affect the OSHA enforcement and regulatory landscape.

​Click here to register for this webinar.

April 17, 2018

Presented by Kate M. McMahon and Nick W. Scala

OSHA’s struggles to reform its chemical exposure limits continue with the rocky roll-out of its two newest occupational exposure standards – Silica and Beryllium.  Both standards are currently under legal challenge, but will likely survive in some form resulting in a full panoply of new obligations, including significant reductions in the allowable concentrations of airborne exposure to these chemicals, and a comprehensive set of ancillary requirements, such as housekeeping, hygiene, medical surveillance, recordkeeping, workplace signage, training, etc.  The silica standard, which is scheduled to become effective for General Industry and Maritime sectors in June 2018, is already in effect for Construction employers.

MSHA, even without its own Silica Standard on the books, has adopted some elements of the hierarchy of controls fundamental to OSHA chemical standards, including the prioritization of engineering over administrative controls. MSHA also conducts exposure monitoring at least annually for respirable silica, and rigorously enforces silica exposure issues.  “Me too” Silica and Beryllium standards for the mining industry may also be in the offing.

During this webinar, participants will learn about:

• The guts of the Silica and Beryllium Standards – What is Required and by when
• Status of OSHA’s final Silica and Beryllium Standards – Timetables for Compliance
• Status of MSHA enforcement and potential rulemaking around Silica and Beryllium
• Strategies and Best Practices to Protect Your Workforce and Avoid Enforcement

Click here to register for this webinar.

May 15, 2018

Presented by Eric J. Conn and Dan Deacon

OSHA’s controversial Electronic Recordkeeping and Anti-Retaliation Rule was promulgated in May 2016.  Despite a barrage of negative comments during the rulemaking, multiple enforcement deferrals, and two legal challenges that have been stayed pending the Trump Administration’s re-evaluation of the Rule, all elements of the rule are currently in effect, including limits on post-injury drug testing and incentive programs, and by last December, thousands of employers for the first time submitted their injury and illness recordkeeping data to OSHA through its Injury Tracking Application web portal.

The Trump Administration is ready to announce its future plans for the E-Recordkeeping Rule, already announcing that it is preparing a Notice of Proposed Rulemaking to revise (or potentially rescind) the Rule.  However, the extent of the revisions to the rule remain unknown, and the timing is key as we approach July 1, 2018, the deadline for the second round of injury data submission.

During this webinar, participants will learn about:

• Current data submission and Anti-Retaliation requirements of the E-Recordkeeping Rule
• OSHA’s enforcement of the E-Recordkeeping and Anti-Retaliation Rule
• Likely updates to OSHA’s Electronic Recordkeeping and Anti-Retaliation Rule

Click here to register for this webinar.

June 5, 2018

Presented by Jordan B. Schwartz, Eric J. Conn and Lindsay A. DiSalvo

Employers’ perceptions about their legal responsibilities for certain workers is not always reality, particularly in the context of the oft changing interpretations of what constitutes an employer-employee relationship.  An employer may classify workers as temporary workers or independent contractors, but that does not mean the Dept. of Labor agrees.  At the tail end of the Obama Administration, the DOL issued guidance that it believed a majority of workers should be treated as employees, insinuating that, in most cases, employers will be accountable for the obligations of an employer-employee relationship.  However, the Trump Administration appears to be shifting gears.  That very guidance was withdrawn by new Sec. of Labor Alex Acosta.  Moreover, Congress has been making efforts to undercut the very broad joint-employer standard established by the NLRB in Browning-Ferris, through a change to the language of applicable laws.  As a result, it is essential for employers to carefully evaluate the employment relationship and their own functions in the multi-employer context.

Even if there is not a legal employer-employee relationship, companies may have certain safety and health obligations and potential liabilities depending on their role at multi-employer worksites or pursuant to the use of temporary workers. Protection of temporary workers was a priority of OSHA in the prior Administration, and the guidance developed in that context remains the current standard in determining the obligations of host employers and staffing agencies.  OSHA has also stood by its multi-employer policy, though the policy, at least as it pertains to controlling employers, is currently being challenged in federal court.

Participants in this webinar will learn about:

• The current Joint Employer standard and efforts to alter that standard
• Criteria used to evaluate the employer-employee relationship
• Guidance on how to clearly establish an independent contractor relationship
• How to lawfully and effectively manage temporary workers at your workplace
• How OSHA applies its multi-employer worksite enforcement policy

Click here to register for this webinar.

July 10, 2018

Presented by Andrew J. Sommer and Eric J. Conn

The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation.California employers face a host of requirements that other employers around the country do not.Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

Of particular significance, in the coming year, California employers can expect an uptick in Cal/OSHA penalties as result of two significant changes, one adopting higher maximum penalty authority and the other changing how the agency finds and cites violations characterized as Repeat.

During this webinar, participants will learn:

• Top Cal/OSHA Violations and Trends in Cal/OSHA Enforcement
• Likely New Rule requiring electronic submission of injury and illness data
• Cal/OSHA’s New Repeat Violation Rule and Increased Penalty Authority
• Other Developments, such as Cal/OSHA’s New Workplace Violence Rule
• Tips for Navigating the Cal/OSHA Appeals Process

Click here to register for this webinar.

Status and Future of OSHA’s Policy of Public Shaming

August 21, 2018

Presented by Eric J. Conn

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 coup de gras of 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 the vestiges of these policies still remain, and their future is uncertain.

During this webinar, participants will learn about:

• Details of OSHA’s current Enforcement Press Release policy
• OSHA’s use of public shaming in the Severe Violator Enforcement Program
• Status of OSHA’s intent to publish injury data collected through the E-Recordkeeping Rule
• OSHA’s policy for publishing fatality information
• PR strategies to consider if you are the target of one of OSHA’s shaming campaigns

Click here to register for this webinar.

September 18, 2018

Presented by Micah Smith and Dan Deacon

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 will learn:

• The new requirements for managing slip, trip and fall hazards in general industry
• Criteria for fall protection equipment and ladder safety
• Updates to the General Industry Scaffold Requirements
• Effective dates for various aspects of the new Walking / Working Surfaces Standard

​Click here to register for this webinar.

October 16, 2018

Presented by Eric J. Conn

​In 2016, OSHA sharpened its teeth considerably, when Congress ordered OSHA to increase its maximum civil penalty authority by 80%.  Now, OSHA violations characterized as Repeat or Willful carry penalties up to $126,000 each.  So what are Repeat and Willful violations?  And what are these “Egregious” violations OSHA has been using more and more often to generate multi-million dollar enforcement actions?

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

Participants in this webinar will learn the following:

• The legal standards OSHA must meet to establish Repeat and Willful violations
• Background and details about OSHA’s Egregious / Per-Instance Enforcement Policy
• Policy changes that have resulted in more Repeat and Egregious violations
• Impacts of these aggravated characterizations, including qualifying into the Severe Violator Enforcement Program, facing criminal charges, etc.
• What employers should do to avoid Repeat and Willful citations

Click here to register for this webinar.

Process Safety Update:
The Latest with OSHA’s PSM Standard and EPA’s RMP Rule

November 13, 2018

Presented by Eric J. Conn, Amanda Strainis-Walker, and Micah Smith

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 will review 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.

Click here to register for this webinar.

December 4, 2018

Presented by Jordan B. Schwartz and Lindsay A. DiSalvo

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.”  Although OSHA portrays this policy as straightforward, in practice, it can be difficult to determine when and how to accommodate a disability under the Americans with Disabilities Act, while also protecting the safety of the disabled employee and his or her co-workers.  This assessment can be further complicated when the employer is unaware a disability may cause or contribute to a workplace safety issue.  The importance of understanding the laws at play in this context has increased, and will continue to increase significantly, due to the aging workforce, and the unique challenges these types of workers may face.

The ADA also requires that medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided when recording injuries and illnesses for OSHA Recordkeeping.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA regulations impact an employer’s ability to drug test employees and what it can do with information from a drug test.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

During this webinar, participants will learn:

• Requirements related to ADA disability accommodation, and how to evaluate an accommodation in the context of legitimate safety concerns
• How to address unsafe conditions or performance related to an employee disability
• Best practices to foster safety in the context of an aging workforce
• ADA and OSHA compliant responses to suspected employee drug or alcohol use
• Injury and illness recordkeeping practices related to employee disabilities

Click here to register for this webinar.