OSHA’S Top Regulatory Priorities… Other than COVID-19

By Eric J. Conn, Chair, Conn Maciel Carey’s national OSHA Practice

In the June/July issue of Tank Storage Magazine, Eric J. Conn, Founding Partner and Chair of Conn Maciel Carey LLP’s OSHA • Workplace Safety Practice Group, looks at recent changes in OSHA’s regulatory policies in the article, “OSHA’S Top Regulatory Priorities…Other than COVID-19.”

Here is a summary of his observations.

The US Occupational Safety and Health Administration (OSHA) has not slowed it rulemaking activities despite the attention COVID-19 has demanded over the past two years. In just the past six months, OSHA has:

  1. Published a notice of proposed regulation to expand its Electronic Recordkeeping Rule;
  2. Initiated an enforcement National Emphasis Program to address Heat Illness; and
  3. Launched rulemaking for an Outdoor and Indoor Heat Illness Prevention standard.

OSHA’S Rulemaking to Expand the E-Recordkeeping Rule

OSHA’s Standard To Improve Tracking of Workplace Injuries and Illnesses (aka, the E-Recordkeeping Rule) has experienced a roller coaster ride over three presidential administrations. Enacted in 2016 by President Obama’s OSHA, the E-Recordkeeping Rule required workplaces with 250+ employees in any industry to electronically submit to OSHA the data from their full panoply of injury and illness recordkeeping forms (detailed injury data from 300 Logs and 301 Incident Reports and the 300A Annual Summary data), and for workplaces with 20+ employees in certain high hazard industries to submit only the 300A summary data.  In 2019, the Trump Administration rolled back the requirement for large employers to submit the more detailed information. Now, the Biden Administration is rolling back the roll back, and pushing the E-Recordkeeping Rule even further than the original.

Under a notice of proposed rulemaking published in the Federal Register this Spring, OSHA is working to expand the E-Recordkeeping rule.  Under the proposed amended E-Recordkeeping Rule, employers with 100+ employees (instead of 250+) will have to electronically submit the full set of data from 300 Logs, 301 Incident Reports, and 300A Annual Summaries.  As a result, the number of employers required to submit injury data will expand dramatically (tens of thousands more workplaces), and the burden to submit will be exponentially greater and the level of data required to be submitted much more detailed and invasive (including employee names as well as details about their injuries and the medical treatment they received).

This has huge implications for employee privacy and increases the risks of potentially harmful use of the data by plaintiff’s attorneys, insurance companies, union organizers, competitors, and other third parties.

Conn Maciel Carey’s national OSHA Practice has organized a coalition of employers and trade groups to prepare comments and otherwise advocate for a reasonable E-Recordkeeping Rule. Contact us for information about the rulemaking and the coalition’s strategic plans.

A Federal OSHA Heat Illness Prevention Standard

Late last year, OSHA published an Advanced Notice of Proposed Rulemaking (ANPRM) beginning the lengthy process of establishing a specific regulation focused on preventing heat injury and illnesses, in both outdoor and indoor work environments. The purposes of the rulemaking are to protect workers and to obtain information about hazardous heat in the workplace, the effectiveness of interventions, and information OSHA can utilize in developing the standard.

Based on the 100+ questions OSHA posed to stakeholders in the ANPRM, the new rule OSHA is working on is likely to require a written heat illness prevention plan, a series of engineering and administrative controls, requirements to provide potable water and ensure employees drink enough (i.e., turn employers into the water police), rigid acclimatization requirements, training, biological monitoring, and emergency response plans.

Conn Maciel Carey’s national OSHA Practice has also formed a rulemaking coalition to participate in this rulemaking, with goals of limiting the scope of the standard to just outdoor workplaces and ensuring the requirements are flexible and performance-oriented, rather than a rigid, one-size-fits-all approach.  Contact us for information about the rulemaking and the coalition’s strategic plans.

Enforcement of Outdoor and Indoor Heat Illness Hazards

As it will be years before the heat illness rulemaking will be completed, OSHA has also initiated a National Emphasis Program (NEP) to target enforcement resources on the heat illness risk.  This new NEP covers dozens of industries across general industry, construction, maritime, and agriculture, and augments current heal illness enforcement efforts.  It adds a program targeting industries with unique risks of heat illness, such as working outdoors during a heatwave or indoors near a radiant heat source.

The NEP requires increased heat inspections, focuses on vulnerable workers, and coordinates with the Department of Labor’s Wage and Hour Division. OSHA compliance officers will be looking for evidence to issue General Duty Clause citations for heat-related hazards, as well as potential enforcement of existing specific standard addressing personal protective equipment, potable water, medical and first-aid services, and recordkeeping.

Here is a link to read the full article as published in Tank Storage Magazine.


“OSHA’S TOP REGULATORY PRIORITIES… OTHER THAN COVID-19.” Tank Storage, 2022, http://www.tankstoragemag.com/feature/oshas-top-regulatory-priorities-other-than-covid-19.

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