Author: Eric J. Conn

Coalition of Employers and Trade Groups to Modernize OSHA and MSHA Processes and Standards

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By Conn Maciel Carey LLP’s national OSHA and MSHA Practice Groups

The Trump Administration continues its quest toward easing regulatory burdens and improving efficiency of government functions by seeking input from the public about overly burdensome regulations that should be rescinded or replaced.  CMC invites employers who prioritize their workers’ safety but get frustrated by OSHA’s and MSHA’s sometimes antiquated or onerous regulatory framework to join the Employers OSHA and MSHA Modernization Coalition.

The Employers OSHA and MSHA Modernization Coalition will allow employers to take advantage of this unprecedented opportunity to recommend improvements to a broad swath of outdated or unduly burdensome workplace safety and health standards, processes, and enforcement policies implemented by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA).

The Coalition will be conducting separate open OSHA and MSHA kickoff virtual meetings next week – OSHA on Wednesday, May 7, 2025 and MSHA on Friday, May 9, 2025 – to discuss the types of reform for which we will be advocating, the process we will follow to present our advocacy to the Administration and to OSHA and MSHA directly, and how companies and trade groups can effectively contribute.  For more details, read on or contact Eric Conn, Chair of CMC’s OSHA Practice and Nick Scala, the Chair of CMC’s MSHA Practice.

What is the White House’s Objective? Continue reading →

Fed OSHA Heat Illness Rulemaking – Next Steps for Employers Heat Illness Prevention Rulemaking Coalition

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By Eric J. Conn and Beeta B. Lashkari

We are providing an update on federal OSHA’s Heat Illness Prevention rulemaking and hopefully starting a meaningful dialogue with the employer community about potential next steps for this controversial rulemaking.  Conn Maciel Carey’s national OSHA Practice organized the Employers Heat Illness Prevention Rulemaking Coalition in 2021, and has worked closely with industry leaders for the last five years to advocate to OSHA for a reasonable, flexible, performance-oriented Heat Standard through OSHA’s Advanced Notice of Proposed Rulemaking, Small Business review process, and the notice-and-comment period for federal OSHA’s Notice of Proposed Rulemaking (“NPRM”) stage last year, with a comprehensive set of written comments.  We are engaging with Industry now to float our thoughts on potential paths forward, to see if employers and trade groups may be interested in joining the Employers Heat Illness Prevention Rulemaking Coalition now, with a new, unique opportunity to influence OSHA’s heat rulemaking.

Status of OSHA’s Heat Illness Prevention Rulemaking

On December 2, 2024, former President Biden’s OSHA announced a public heat illness rulemaking hearing that will begin on June 16, 2025.  Last week, President Trump’s OSHA issued a press release stating that the Heat Injury and Illness public rulemaking hearing will proceed as scheduled.  Going through with the hearing will bring the proposed rule one step closer to final – essentially to the one-yard line.

Interestingly, the decision last year to schedule the hearing in June reflected, to us, an effort by the Biden Administration to maintain momentum for this rulemaking.  This maneuver placed the new Administration in a position where it had to take an affirmative action to stop the hearing, which could have drawn public criticism.  At the very least, it limited the ability of Pres. Trump’s OSHA to quietly sideline the heat illness rulemaking – if that was going to be its intention.  Hearing or no, we find it nearly impossible that OSHA will Continue reading →

Key OSHRC Rulings Explained: Secretary of Labor v. Trinity Solar LLC

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By Valerie Butera

Welcome to “Key OSHRC Rulings Explained,” a new series in Conn Maciel Carey LLP’s OSHA Defense Report blog, designed to explore significant case summaries of Occupational Safety and Health Review Commission (OSHRC) decisions. This series will provide clarity and context on key OSHRC rulings that have shaped workplace safety standards and compliance obligations under the Occupational Safety and Health Act. Our goal is to provide concise, insightful analyses of these rulings to help employers and safety professionals stay informed about evolving interpretations and enforcement trends, prepare for subsequent compliance obligations, and navigate the legal landscape of workplace safety. We invite you to follow along as we unpack the most impactful OSHRC decisions and their practical implications.

Our first case law summary in the series will cover the Secretary of Labor v. Trinity Solar LLC, as successor to Trinity Solar Inc., OSHRC Docket No. 23-0712 (Dec. 26, 2024).

Executive Summary Continue reading →

Virginia Governor Youngkin Vetoes Workplace Violence Prevention Bill, HB 1919

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By Rachel Conn and Andrea Chavez

As previously reported, on March 7, 2025, the Virginia House of Delegates passed House Bill 1919 (HB 1919), which would have required large employers—those with 100 or more employees—to implement workplace violence prevention policies by January 1, 2027.

However, Governor Glenn Youngkin has vetoed the bill, explaining:

“While workplace safety is critical, this bill misclassifies workplace violence as a regulatory issue rather than a criminal matter. Employers already have the ability to establish workplace policies, and existing law provides recourse for victims through law enforcement and civil courts. Additionally, the Virginia Occupational Safety and Health program can already address workplace hazards, making this mandate duplicative and burdensome.” Continue reading →

[Webinar] The Usual Suspects: How to Avoid the Five Most Expensive (and Frequently Cited) Types of General Industry Citations

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On Thursday, March 20th, 2025 at 1 p.m. ET / 10 a.m. PT, join Aaron Gelb, Daniel Deacon, and Hema Steele for a webinar on The Usual Suspects: How to Avoid the Five Most Expensive (and Frequently Cited) Types of General Industry Citations.

Year in and year out, the same 5 standards tend to be cited the most frequently in general industry inspections. While their placement in the Top 5 may vary from time to time, Lockout/Tagout, Hazard Communication, Respiratory Protection, Powered Industry Trucks, and Machine Guarding are consistently cited more often than any other standards during inspections of general industry employers. In terms of the financial impact, the order changes slightly with LOTO and machine guarding leading the way, followed by PITs, respiratory protection, and Haz Com.

No matter how you slice the numbers, the fact that these standards consistently occupy the top spots in these annual lists means that employers should prioritize compliance with the many requirements found in each standard; doing so will result in safer and healthier workplaces, not to mention more favorable outcomes if and when OSHA shows up.
Continue reading →

Newly-Confirmed Secretary of Labor Lori Chavez-DeRemer and Deputy Secretary Keith Sonderling Set to Lead U.S. Workplace Policy

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By Kara M. Maciel

On March 10, 2025, the U.S. Senate confirmed Lori Chavez-DeRemer as Secretary of Labor with Keith Sonderling joining her as Deputy Secretary of Labor in the new Trump Administration. The vote was 67 to 32, with 17 Democrats voting in her favor and 3 Republicans voting against.  As we previously reported on our blog, their appointments mark a shift in labor policy under President Trump’s second term, with a focus on business-friendly regulations and workforce development.

Lori Chavez-DeRemer: Second Latina Secretary of Labor

Lori Chavez-DeRemer, a former U.S. Representative from Oregon, will now lead the Department of Labor. She has emphasized a commitment to job growth, reducing regulatory burdens on businesses, and strengthening apprenticeship programs. Her confirmation aligns with the administration’s focus on creating a more flexible labor market and rolling back policies from the Biden Administration. The Senate Health, Education, Labor, and Pensions (HELP) Committee held her confirmation hearing on February 19, 2025, during which Ms. Chavez-DeRemer emphasized her commitment to working-class Americans. She cited her background as the daughter of a Teamsters union member and her experience as a small business owner. She also stressed the importance of expanding alternative career pathways, such as apprenticeships, to bolster the U.S. workforce.  She also expressed support for the H-1B visa program, which allows foreign workers to fill specialized roles in the U.S., while also acknowledging concerns from lawmakers regarding its impact on American workers.  The HELP Committee advanced her nomination by a vote of 13-9 to the full Senate.

Keith Sonderling: Deputy Secretary with a Business-Focused Agenda

Keith Sonderling, a former Equal Employment Opportunity Commission (EEOC) vice-chair, will serve as Deputy Secretary of Labor. With experience in labor law and business regulation, Sonderling is expected to focus on policies supporting gig workers, AI in the workplace, and voluntary compliance for businesses. He previously served in the Department of Labor’s Wage and Hour Division under Trump’s first term. His nomination received bipartisan support, particularly from the business community, and was praised by lawmakers such as Senator Bill Cassidy and Representative Tim Walberg.

As they take office, both Secretary Chavez-DeRemer and Deputy Secretary Sonderling will play key roles in shaping labor policies that prioritize employer flexibility and economic growth while navigating debates over worker protections.  Their leadership is expected to lead to a more deregulatory approach compared to the previous administration.

 

Image courtesy of Lori Chavez-DeRemer for Congress

New York Governor Hochul Signs Retail Worker Safety Act Amendment into Law

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By Andrea Chavez and Rachel Conn 

As we previously reported, on February 4, 2025, the New York Senate and Assembly approved a Chapter amendment to the Retail Worker Safety Act. Governor Hochul signed the amendment into law on February 14, 2025. The Act will officially take effect on June 2, 2025, with the silent response button requirement set to go into effect on January 1, 2027. 

For more information on the amendment, check out our prior blog post.

Senior Leadership at DOL, OSHA, and MSHA Under a 2nd Trump Administration Is Taking Shape

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By Eric J. Conn and Darius Rohani-Shukla

As Rep. Lori Chavez-DeRemer braces for a flurry of questions at her confirmation hearing before the Senate Committee on Health, Education, Labor, and Pensions (HELP) on her way to a full Senate vote to become President Trump’s Secretary of Labor, the Trump Administration is assembling its new senior leadership team to oversee workplace safety and labor policy. These key nominees will shape enforcement priorities, compliance strategies, and industry engagement across OSHA, MSHA, and the broader Department of Labor:

  • Lori Chavez-DeRemer – Nominee for Secretary of Labor: A former mayor and member of Congress, with unexpected ties to labor, is expected to emphasize regulatory flexibility and employer engagement.
  • Keith Sonderling – Nominee for Deputy Secretary of Labor: A former EEOC Commissioner and Dept of Labor official with expertise in AI, employment law, and compliance initiatives.
  • David Keeling – Nominee for Assistant Secretary of Labor for OSHA: A veteran of UPS and Amazon with decades of experience managing workplace safety in complex work environments.
  • Amanda Wood Laihow – Nominee for Deputy Assistant Secretary for OSHA: A former Commissioner at the OSH Review Commission and legal and policy expert with the National Association of Manufacturers.
  • Wayne Palmer – Nominee for MSHA Administrator: A regulatory veteran with previous leadership experience at MSHA and in the mining industry.

With these appointments, the second Trump Administration is signaling a shift in labor and workplace safety policy, though how far and how fast the pendulum will swing remains to be seen. Will workplace safety regulations lean toward deregulation, targeted enforcement, or greater collaboration with industry stakeholders? These questions will be central in upcoming confirmation hearings. Below is a deeper look at each nominee and the potential impact of their leadership on the operations of OSHA, MSHA, and the Department of Labor’s many other divisions. Continue reading →

OSHA’s 2024 Year In-Review and Lookahead to OSHA Under a Second Trump Administration [Webinar Recording]

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On Tuesday, January 28, 2025, the attorneys in CMC’s national OSHA • Workplace Safety Practice Group presented a webinar titled “OSHA’s 2024 Year In-Review and Lookahead to OSHA Under a Second Trump Administration.”

The ball has dropped, the confetti has been swept out of Times Square, and 2024 is in the books. It’s time to take a look back and take stock of what we learned from and about OSHA over the past four years of the Biden/Harris Administration, and more importantly, look ahead to what we can expect from OSHA in the first year of the Trump/Vance 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 2024, and we will discuss the Top OSHA Issues employers should monitor and prepare for in the New Year and the new Trump/Vance Administration.

Participants in this webinar learned about: Continue reading →

The Pendulum Swings: Early Executive Actions by Trump Portend a Major Contraction at OSHA

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By Eric J. Conn and Darius Rohani-Shukla

President Trump was sworn in for a second term the morning of January 20th, and he spent the rest of that day setting a record for the most ever Day 1 executive actions (i.e., Executive Orders, Proclamations, pardons, etc.).  Among those Day 1 executive actions (and a couple others that followed later in his first week back in the White House), was a series of Executive Orders (EOs) and directives targeting staffing, budgeting, and rulemaking, which are designed to drastically shrink regulatory and enforcement agencies, like OSHA.  These executive actions – including a hiring freeze, budget cuts, return-to-office mandates, buyouts, and reclassification of career positions into political appointments – are part of a systematic strategy to diminish regulatory agencies.

This effort to shrink OSHA and other executive agencies should come as no surprise to anyone.  Dismantling the administrative state was a stated goal of the first Trump Administration and again from the campaign trail this time, and that was one campaign promise President Trump delivered on the last go around.  By the end of the first Trump Administration, federal OSHA had shrunk to the fewest number of compliance officers in the agency’s history (dropping from 952 compliance officers at the start of the Trump Administration in 2016 to 761 by January 2020), and the agency had a record number of vacancies in “middle management” positions throughout the Area and Regional field offices.

The Biden Administration focused on rebuilding the ranks at OSHA.  Biden had a Deputy Assistant Secretary for OSHA sworn in just a couple of hours after himself on Day 1, and then dedicated the next four years to hiring more than a hundred new compliance officers and filling vacancies through the agency.  By the end of 2023, the Biden Administration had built the number of OSHA inspectors back up to 878.

Starting on Day 1 of the second Trump Administration, the writing has been on the wall for OSHA that it is about to experience another major contraction.  A smaller OSHA means less resources to conduct inspections (OSHA conducted thousands of fewer inspections during the first Trump Administration than during the Obama or Biden Administrations), engage in robust enforcement (the total number of citations and significant enforcement actions decreased during the first Trump Administration), and to work on or promulgate new standards (there was essentially no new rulemaking, other than deregulatory rulemaking, during the first Trump Administration).  We predict similar effects on the work of OSHA during this term.

Here is a breakdown of the key Day 1 and Week 1 executive actions that are designed to weaken federal agencies like OSHA: Continue reading →

Announcing Conn Maciel Carey’s 2025 OSHA Webinar Series

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Following another close national election, President Trump returns to the White House for a second term, and resumes control over the vast Executive Branch bureaucracy, including the Department of Labor’s Occupational Safety and Health Administration.  Now we turn the page from four extraordinary years at OSHA under a Biden/Harris Administration, where we saw record-setting enforcement and a flurry of new rulemaking, and watch the pendulum swing as control at OSHA transitions to the Trump/Vance Administration.  However, just how much, how quickly, and in what ways OSHA’s priorities will swing remain to be seen.  So, now is the perfect time to take a close look at what we learned from and about OSHA during the last few very eventful years, and more importantly, look ahead and assess what we can expect from OSHA the next four years, as President Trump installs his own team at the Department of Labor.

One thing is for sure, change is coming at OSHA.  Accordingly, it is more important now than ever for employers to keep a close watch on developments at OSHA.  Conn Maciel Carey LLP’s complimentary 2025 OSHA Webinar Series, which includes monthly programs (sometimes more often) put on by the OSHA-specialist attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA during this period of unpredictability and significant change.  ​To register for an individual webinar in the series, click on the registration link within the individual program descriptions below, Continue reading →

OSHA Updates Animal Slaughtering and Processing Worker Safety Enforcement Inspection Guidance

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By Eric J. Conn and Samuel S. Rose

On October 15, 2024, OSHA issued Inspection Guidance for Animal Slaughtering and Processing Establishments that updates enforcement protocols for the agency’s field staff and compliance guidance for employers in NAICS Code 3116 (Animal Slaughtering and Processing), which includes NAICS Codes 311611 (Animal (except Poultry) Slaughtering), 311612 (Meat processed from carcasses), 311613 (Rendering and meat byproduct processing), and 311615 (Poultry processing).   The guidance takes the form of a memorandum from the Director of OSHA’s Directorate of Enforcement Programs out to all of OSHA’s Regional Offices.

OSHA justified the need for the updated enforcement guidance by noting that animal slaughtering and processing workers suffer serious injuries at a rate that is more than double that of all industries combined.

The updated OSHA guidance supersedes and replaces OSHA’s October 28, 2015 “Inspection Guidance for Poultry Slaughtering and Poultry Processing Establishments.”

The memorandum encourages each OSHA Region to determine whether a special enforcement emphasis program — either a Regional or Local Emphasis Program — is justified after reviewing relevant data in their regions. There are currently active emphasis programs in Region 4 (Regional Emphasis Program for Poultry Processing Facilities covering Georgia, Florida, North Carolina and South Carolina), Region 5 (Regional Emphasis Program for Food Manufacturing Industry covering Illinois, Ohio, Wisconsin, Michigan, Indiana, and Minnesota), Region 6 (Regional Emphasis Program for Poultry Processing Facilities covering Texas, Oklahoma, Arkansas, Louisiana, and New Mexico), and Region 7 (Nebraska Local Emphasis Program for Meat Processing Industries).  Because OSHA believes these hazards are pervasive nationwide, State OSH Plans, especially those with significant meat and poultry processing industries, are encouraged by OSHA in this enforcement memorandum to follow this guidance document.

Pursuant to OSHA’s updated memorandum, all programmed and unprogrammed inspections in NAICS 3116 will scrutinize Continue reading →

Fed OSHA’s Heat Illness Prevention Proposed Rule Officially Published in the Federal Register

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By Conn Maciel Carey LLP’s OSHA • Workplace Safety Group

As you may recall, way back on July 2nd, OSHA “revealed” an unofficial pre-publication version of a Notice of Proposed Rulemaking (NPRM) for a federal Indoor and Outdoor Heat Illness Prevention Rule.  After a peculiar delay (apparently the result of having to format the numerous tables, charts, and graphics from the 1,000+ page NPRM package), the official NPRM was published in the Federal Register today, Friday, August 30th.

We have reviewed the official NPRM, and, for better or worse, we can verify that OSHA did not make any substantive changes to the proposed rule from the version that had been revealed back in July.

In the official NPRM, OSHA maintains its previously suggested 120-day public comment period.  But 120-days from August 30th is December 30th.  Since that is the week between Christmas and New Years, stakeholders will almost certainly request an extension of the comment period — a request that only the Grinch could refuse.

What is in OSHA’s NPRM for the Heat Illness Rule?

Below we have outlined our analysis of OSHA’s proposed rule. Continue reading →

Destabilized But Not Yet Deconstructed: Analysis of This Momentous SCOTUS Term for the Administrative State

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By Conn Maciel Carey’s national OSHA Practice Group

The 2023-2024 Term of the United States Supreme Court will undoubtedly have far-reaching implications in a number of areas, but perhaps most significantly—at least for regular readers of the OSHA Defense Report blog—with respect to the ability of federal agencies to promulgate and enforce regulations.  In a trio of recent decisions addressing federally mandated monitors in fishing vessels (Loper Bright v. Raimondo), civil fines imposed by the Securities and Exchange Commission (SEC v. Jarkesy) and payment network processing fees incurred by a truck stop (Corner Post, Inc. v. Board of Governors of the Federal Reserve System), the High Court sent shockwaves that will likely reverberate through all federal agencies and the regulated community alike for years to come.

The familiar framework in which these agencies have long operated, dating back to the mid-1980s when Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. was decided, appears to have been upended, or at least is now resting on shaky ground. And while these three decisions do not, by themselves, dismantle the administrative state, they have the potential to significantly reorder the familiar foundations upon which OSHA and dozens of other administrative agencies have operated.

Perhaps most importantly, these decisions appear to open the door wide for future challenges to vast swaths of the Code of Federal Regulations that currently govern how businesses and other regulated entities operate today and the venue where regulatory disputes are resolved. This article examines the implications of these cases and offers some educated speculation about the sea change that may occur at OSHA and elsewhere over the next few years. Continue reading →

OSHA Reveals Its Official Proposed Indoor and Outdoor Heat Illness Prevention Rule – Join CMC’s Heat Illness Rulemaking Coalition

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

To kick off the 4th of July Celebration early, today, July 2, 2024, OSHA released an unofficial version of its Indoor and Outdoor Heat Illness Prevention Notice of Proposed Rulemaking (“NPRM”).  An official version will be published in the Federal Register in the next few days, maybe even tomorrow.  Once published in the Federal Register, the regulated community will have a 120-day period to submit public comments to OSHA’s rulemaking docket.

OSHA also issued a news release on the proposal, in which the Assistant Secretary of Labor for OSHA, Doug Parker, announced:

“Workers all over the country are passing out, suffering heat stroke and dying from heat exposure from just doing their jobs, and something must be done to protect them….  Today’s proposal is an important next step in the process to receive public input to craft a ‘win-win’ final rule that protects workers while being practical and workable for employers.”

The White House also issued a fact sheet on President Biden’s new actions to protect workers and communities from extreme weather, which leads off with information about OSHA’s proposed Heat Illness Rule.

What is in OSHA’s Proposed Indoor and Outdoor Heat Illness Rule

We are carefully reviewing the lengthy NPRM package as we speak, but wanted to share with you all some initial impressions right away: Continue reading →

Industry Groups and Congressional Leaders Attack OSHA’s New “Worker Walkaround” Inspection Rule

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By Eric J. Conn, Mark Trapp, and Darius Rohani-Shukla

To advance the Biden Administration’s promise to be “the most labor friendly administration in history,” on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – to open the door to participation in OSHA inspections by third parties, including union representatives at non-union workplaces, disgruntled former employees, plaintiffs’ attorneys or their experts, and scores of others.

OSHA’s new final rule went into effect on May 31, 2024, but ten days before that, on May 21st, the US Chamber of Commerce, with various other industry and business groups, filed a lawsuit in the US District Court for the Western District of Texas challenging the legality of OSHA’s new Worker Walkaround Rule.  The lawsuit, Chamber of Commerce v. OSHA, seeks to postpone enforcement of OSHA’s new Worker Walkaround Rule and ultimately to permanently vacate the new regulation. Continue reading →

Update on OSHA’s Emergency Response Rulemaking

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By Beeta B. Lashkari and Eric J. Conn

On February 5, 2024, OSHA revealed its Notice of Proposed Rulemaking for a new Emergency Response Standard, initiating a public comment period.  As we previously reported, the rulemaking is designed to update OSHA’s existing Fire Brigades Standard and to expand safety and health requirements related to emergency responders – both public and private.

Although OSHA extended the deadline by which comments must be filed from May 6 to June 21, that day is approaching fast, especially given the length, technical nature, and complexity of the proposed rule.  To that end, we are writing to re-gauge your organization’s interest in participating in a coalition of employers and trade associations to work on this OSHA rulemaking with us.

Background About OSHA’s Emergency Response Rulemaking

Per OSHA, the proposed Emergency Response Standard is meant to replace the existing Fire Brigades Standard and will update safety and health protections in line with national consensus standards for a broad range of workers exposed to hazards that arise during emergencies.  While the number of requirements will significantly increase, so too would the scope of the standard.  Particularly, the existing Fire Brigades Standard would be substantially expanded to apply to Continue reading →

Everything You Need to Know About OSHA’s New Worker Walkaround Representative Designation Process Rule

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

Like a bad April Fool’s joke, to advance the Biden Administration’s promise to be “the most labor friendly administration in history,” on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – and will profoundly affect employers’ legal risk in future OSHA inspections when it goes into effect on May 31, 2024.

This Client Alert covers the controversial history of this rulemaking, from an Obama Era Letter of Interpretation and related legal challenges, through the flawed rulemaking process that OSHA followed to promulgate the new rule, to a detailed review of what the final rule says and means, along with analysis about the implications for employers, expected legal challenges to the Rule, and tips and strategies for managing OSHA inspections in this new world order.

Background

OSHA’s regulation governing participation in OSHA inspection by employee representatives, 29 C.F.R. 1903.8(c), was established in 1993, and it granted employees and their representatives the right to accompany OSHA compliance officers during the physical walkaround phase of workplace inspections.  In February 2013, the Obama-Biden Administration sought to give union representatives authority to participate in OSHA inspections at non-union workplaces by way of a formal Letter of Interpretation.  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“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?”

That question had to be considered within the context of the existing regulatory text of 29 C.F.R. 1903.8(c) at that time:

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding pretty clear regulatorylimitations to third party inspection participation rights, including an expectation that any third party participant must have some type of technical credential (e.g., professional safety engineer or certified industrial hygiene), OSHA responded to the union’s interpretation request in the affirmative, explaining: Continue reading →

BREAKING: OSHA Issues Final Worker Walkaround Representative Designation Process Rule

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

After an unusually short time at OMB, earlier today, OSHA revealed a pre-publication version of its Final Worker Walkaround Representative Designation Process Rule.  The Official Final Rule will issue when it is published in the Federal Register next week, on April 1, 2024, and it will go into effect on May 31, 2024.

As expected, OSHA pushed this rule out ahead of the Congressional Review Act window – 60 legislative days before a possible transition to a new Administration and new Congress. By issuing the rule this far ahead of the next election, OSHA has avoided the risk that a possible new Republican Congress and President could repeal this rule under the CRA, preventing OSHA from ever promulgating a substantially similar rule in the future.

As a reminder, OSHA initially sought to amend its existing regulation at 29 CFR § 1903.8(c) in three ways:

  1. Changing the extreme bias against third party employee representative participation in OSHA inspections by changing existing language to allow non-employee third parties to act as employee representatives during OSHA inspections;
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections by changing existing language limiting such representatives to credentialed certified industrial hygienists or professional safety engineers, to now permitting any third-party representative who has “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills”; and
  3. Expanding the role these third-party representatives play during an OSHA inspection from simply “accompanying” OSHA during the physical walkaround phase of the inspection, to “participating” in the inspection, which presumably would include attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA pursuant to OSHA’s broad subpoena authority, etc.

Conn Maciel Carey’s OSHA Rulemaking Coalition pushed back on all of these changes, and it appears we achieved a little success.  Here is the new final regulatory text: Continue reading →

OSHA’s Worker Walkaround Rule Clears OMB Review – Final Rule Is Imminent

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

We have an important update to share about the status and now more clear outcome of OSHA’s rulemaking for a Worker Walkaround Designation Process Rule.  Yesterday, OMB updated the entry on its website about the Worker Walkaround Rulemaking to reflect that OMB/OIRA has concluded its regulatory review under EO 12866, cancelling the remaining stakeholder meetings that had been scheduled.  In total, OMB hosted sixteen EO 12866 stakeholder meetings.  The entry reflecting the EO 12866 meeting with Conn Maciel Carey’s Rulemaking Coalition’s is here.

As you can see below, OMB has updated its entry for this rulemaking to reflect: “OIRA Conclusion of EO 12866 Review.”

What we can also see from this entry is that OMB has, unfortunately, NOT Continue reading →

OSHA Releases a New Process Safety Management “Enforcement Manual”

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By Beeta B. Lashkari and Eric J. Conn

Things have been busy the last couple of months on the RMP/PSM front with these developments:

  1. Without announcement, on January 26, 2024, Fed OSHA posted a new PSM “enforcement manual,” replacing its long-standing 1994 compliance directive.
  2. Members of the House Energy and Commerce Committee sent EPA a letter on January 18, 2024, urging EPA to withdraw and re-propose its upcoming RMP rule update, charging that the proposed version conflicts with OSHA and other agencies’ responsibilities, goes beyond Congress’ explicit mandates, and raises security concerns, among other things.
  3. On December 27, 2023, Washington state’s Division of Occupational Safety and Health amended its PSM standard, effective December 2024, adding a new part specifically addressing process safety at petroleum refineries.
  4. The United Steelworkers (“USW”) filed a petition on January 15, 2024 with Cal/OSHA’s Standards Board asking Cal/OSHA to develop an emergency temporary standard (“ETS”) that would subject renewable fuel refineries to the same rules the state applies to petroleum refineries.

For a relatively quiet 2023, 2024 is starting off with a bang. While we are keeping our eyes and ears open on these and any other relevant developments, we wanted to provide a summary of the key highlights from Fed OSHA’s new PSM enforcement manual, especially in light of the fact that the now-cancelled instruction had essentially been in place for the lifetime of the PSM standard.  Here are some of our main takeaways:

Why Did OSHA Issue This New Enforcement Manual? Continue reading →

OSHA Officially Published Its Proposed Emergency Response Rule

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By Eric J. Conn and Beeta B. Lashkari

We hope you saw our post last week about OSHA’s new Emergency Response Rulemaking and the Rulemaking Coalition that Conn Maciel Carey LLP is organizing to work on this surprisingly onerous proposed rule.

When we published that article, the NPRM package had been revealed by OSHA but had not yet been published in the Federal Register.  That has now changed.  OSHA’s proposed Emergency Response rule for emergency and related responders was officially published in the Federal Register today.  Unless OSHA grants a request for an extension of the comment period, stakeholders’ written comments to the NPRM will be due in 90-days – by May 6, 2024.

Here is more detail about some concerning aspects of OSHA’s new proposed Emergency Response Rule and about our Rulemaking Coalition.

CMC’s prior OSHA Rulemaking Coalitions over the last several years have been successful in making important changes to OSHA’s major rulemakings and have otherwise been valuable experiences for our participants because of the timely and detailed updates about the rulemaking processes that we have provided.  We intend to take the same approach for this rulemaking.  We will coordinate with our coalition participants to: Continue reading →

OSHA’s Emergency Response Rulemaking Covers Private Employers With Designated Emergency Responders – Join CMC’s Employers Rulemaking Coalition

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

OSHA is sure not letting the regulated community ease into the new year.  Indeed, right as we were shutting down for the holidays, OSHA slid a little gift under the tree in the form of yet another proposed regulation.  Specifically, on December 21, 2023, OSHA revealed a pre-publication proposed “Emergency Response” Rule, which it will publish any day now.  The rulemaking is designed to update OSHA’s existing “Fire Brigades” standard and to expand safety and health requirements related to emergency responders – both public and private.

We are writing to gauge your organization’s interest in participating in a coalition of employers and trade associations to work on this OSHA rulemaking.

Background About OSHA’s Emergency Response Rulemaking

So you would not have to, we have poured through the 600+ page pre-publication Notice of Proposed Rulemaking (NPRM) package.  Per OSHA, the soon-to-be-proposed “Emergency Response” Rule will update safety and health protections in line with national consensus standards for a broad range of workers exposed to hazards that arise during and after fires and other emergencies.  Particularly, the standard will apply to Workplace Emergency Response Employers (“WERE”), a term that applies to private employers engaged in industries such as manufacturing, processing, and warehousing that have, or establish, a Workplace Emergency Response Team (“WERT”).  OSHA explains that employees on the WERT are those who, either as a primary or collateral duty of their regular daily work assignments, respond to emergency incidents to provide services such as firefighting, emergency medical service, and technical search and rescue.  Continue reading →

New Calif. Dept. of Health Order Drastically Changes Isolation Requirements for COVID-19 Cases

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On January 9, 2024, the California Department of Public Health (CDPH) issued a new State Public Health Officer Order impacting COVID-19 isolation periods. This revision, applicable to Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations, introduces changes to the definition of the “Infectious Period,” drastically reducing the isolation period for COVID-19 cases.

Notably, non-healthcare employees with asymptomatic cases are no longer required to be excluded from the workplace, and employees with confirmed cases can return within 24 hours of symptom onset under certain conditions. The new “Infectious Period” definition also significantly impacts close contacts and exposed group definitions and analysis under the Cal/OSHA Regulations.

Check out the full article on CMC’s Cal/OSHA Defense Report blog for more information about the redefined “Infectious Period” for symptomatic and asymptomatic cases and its effects on employers.

The CSB Clears Its Investigations Backlog With a Flurry of Holiday Season Investigation Reports

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By: Beeta B. Lashkari, Eric J. Conn, and Valerie Butera

As we begin the new year, we wanted to look back and report out on a rather remarkable year at the US Chemical Safety and Hazard Investigation Board (the “CSB”).  Most notably, the CSB set and met a goal of clearing out its investigations backlog before the end of CY 2023.  By any measure, the CSB just closed its most productive year ever, issuing a record-setting eleven investigation reports.  For context, the CSB issued only six reports in 2022, three in 2021, none in 2020, and four in 2019.  Currently, the CSB has only two open investigations for incidents that just occurred within the last year and a half.

As we discussed in our December 13, 2022 Process Safety Update Webinar, on May 20, 2021, the Congressional Committee on Energy and Commerce sent the CSB a letter, calling on the CSB to clear out its “investigations backlog,” which, at that time, included 20 open investigations, including at least one that was more than five years old.  The letter specifically instructed the CSB to:

“Provide a copy of the CSB’s most recent investigation plan, including the status of all open investigations, the expected timeframe for completing each investigation, and the number of investigators assigned to each investigation.”

A day later, the CSB released one investigation report, so that, by the time the agency replied to Congress’ letter on June 10, 2021, it reported that there were 19 open investigations, and provided a status for each one: five were noted as being in the early investigation report-writing phase, and 14 were in a mid- or advanced phase.  However, the CSB did not at that time provide a specific timeframe for completing each report, stating only that:

“[t]he timeframe for completing investigations is a dynamic re-assessment based on numerous factors. The Agency plans to continue closing investigations with increased transparency through the public board meeting process . . . and to improving the timelines as the Agency rebuilds our staff and processes.”

Three months later, on September 24, 2021, the CSB issued a couple more investigation reports, and a few days after that, on September 29, 2021, then-CSB Chairperson Katherine Lemos testified before the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, emphasizing the progress the CSB was making on the release of investigation reports.  Specifically, Chairperson Lemos testified that the CSB had completed three investigations in 2021, compared to only one in 2020.

Then, on October 7, 2021, the CSB sent another letter to Congress, this time providing a specific timeline for all remaining open investigations.  Per the (very ambitious) timeline, with older investigations prioritized, all open CSB investigations of incidents occurring prior to calendar year 2020 would be completed in fiscal year 2022. Although the CSB was not able to meet its initial timeline, it updated its investigations closure plan in October 2022, committing to another very ambitious timeline to complete all of its then-remaining fourteen open investigations by the end of calendar year 2023.  With a new and nearly full slate of Board Members and renewed life at the agency under the Biden Administration, including the hiring of additional staff, the CSB met that timeline, barely. Continue reading →