COVID-19 OSHA Recordkeeping and Reporting: OSHA Reverses Course on Work-Relatedness

By Conn Maciel Carey’s COVID-19 Task Force

There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions the past three months is the requirement to record on an OSHA 300 Log and/or pick up the phone and report to OSHA work-related cases of COVID-19.  This article explains the circumstances the OSHA recordkeeping and reporting obligations related to employee COVID-19 cases.

The Cold and Flu Exemption to OSHA Recordkeeping

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):

“An injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable…. The illness is the common cold or flu.”

The rationale for the exemption is that the spread of the cold and flu is so pervasive and potential exposures are ubiquitous within and outside the workplace, so it can be nearly impossible to identify the specific source of infection.

Despite great personal sacrifice around the country in the form of mass self-quarantine, the scale of infection of COVID-19 continues to spread like the flu and common cold, with even more dire consequences.  Nevertheless, OSHA has repeatedly made clear that COVID-19 is not subject to the cold/flu recordkeeping exemption:

“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

OSHA has explained that the cold and flu recordkeeping exemption is not just an OSHA policy or enforcement philosophy.  Rather, it is a part of the regulation itself that went through APA notice-and-comment rulemaking.  And the scientific reality is, COVID-19 is not the cold or flu.  It is a different virus.  So without another rulemaking (that history suggests would take longer than it will to eradicate this illness), OSHA cannot just declare this serious illness to be exempt from recordkeeping and reporting requirements.

Indeed, over a series of guidance documents in April and May, OSHA has doubled-down on its decision that employers must spend time determining whether cases of COVID-19 are more likely than not work-related.

Determine Recordability of COVID-19 Cases

Consistent across all of OSHA’s COVID-19 guidance has been the basic structure for evaluating whether an employee’s COVID-19 case is recordable.  Employers will only be responsible for recording a case of COVID-19 if it meets the following criteria: Continue reading

BREAKING: OSHA Issues Enforcement Policy Relaxing Regulatory Compliance During the COVID-19 Crisis

By Conn Maciel Carey’s COVID-19 Task Force

The Coronavirus pandemic has created unprecedented challenges for employers that are attempting to meet OSHA regulatory obligations – such as annual training, auditing, testing, medical surveillance requirements, and the like – without creating greater risk of exposure to COVID-19 for their employees.  This evening (April 16, 2020), OSHA issued a new Enforcement Memorandum acknowledging that reality.  The enforcement memo, entitled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic,” provides enforcement relief for employers who exercise good faith in the context of this extraordinary health crisis.

In explaining the need for this enforcement relief, OSHA recognized that:

“Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements” have strained the “availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services,” as well as the opportunity for “employee participation in training even when trainers are available.”  Similarly, “access to medical testing facilities may be limited or suspended.”

To address these very real challenges to achieving full compliance with various annual and other regulatory requirements, OSHA issued a temporary enforcement policy based on the agency’s enforcement discretion to relax enforcement of many existing regulatory obligations if complying with these obligations is not feasible or if doing so would pose an unreasonable risk of virus transmission among the employer’s workforce.  Today’s enforcement policy applies broadly to employers in all industry sectors, takes effect immediately, and will remain in effect indefinitely throughout the current public health crisis.

The heart of the new enforcement policy is this:

  • Where an employer is unable to comply with OSHA standards that require annual or recurring audits, reviews, training, assessments, inspections, or testing because of the Coronavirus pandemic, AND the employer has made good faith attempts to comply, OSHA “shall take such efforts into strong consideration in determining whether to cite a violation.”
  • But where the employer cannot demonstrate any efforts to comply or why trying to comply would be more hazardous, a citation may issue as appropriate.

As part of OSHA’s assessment whether an employer engaged in good faith compliance efforts, OSHA will evaluate whether the employer Continue reading

COVID-19 OSHA FAQs about Respirators, Face Masks, and Face Coverings

By Conn Maciel Carey’s COVID-19 Task Force

As concerns about the spread of COVID-19 grow, many employees working in essential businesses have sought to provide or require some form of respirator, face mask, or face covering for employees.  Now, the CDC and White House are recommending that everyone wear some form of face covering any time in public to help reduce community spread of COVID-19.  So, it is important to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace.  Depending on the type of face mask used, and whether it is required by the employer or permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134 and perhaps by other regulatory requirements.

As a starting point, let’s level-set the type of equipment we are talking about.  N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators.  Of course, anything more substantial than an N95 mask, such as half or full face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators.  That type of equipment, whether it is required by the employer or permitted for voluntary use, triggers some requirements of OSHA’s respiratory protection standard that we will discuss below.  Simple paper or cloth masks, like dental or non-N95 surgical masks, on the other hand, are not considered to be respirators, and do not trigger any requirements under 1910.134.

OSHA’s respiratory protection standard provides that a respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee; i.e., if there are exposures to chemicals or other hazardous agents above permissible exposure limits.  If a respirator is necessary because of exposure levels or simply because an employer mandates employees wear respirators, the employer must establish a written respiratory protection program that includes numerous elements such as fit testing, medical evaluations, procedures for proper use, storage and cleaning, and training.

OSHA’s initial Guidance for COVID-19 in the Workplace described four exposure risk categories (lower, medium, high, and very high) that workplaces and job tasks fall into, and the safety precautions that should be considered for each risk level, including what personal protective equipment (“PPE”) may be appropriate.  The majority of workplaces, other than healthcare workers and those with regular close contact with known or suspected COVID-19 patients, fall into the lower or medium risk category.  As of today, neither OSHA nor the CDC has issued guidance indicating that N95 respirators, or any other device considered to be a respirator, is required in lower- and medium-risk workplaces to protect employees from exposures to COVID-19.

However, that does not answer the question about what, if any, regulatory requirements there are if employers permit employees to voluntarily use N95s or other negative pressure filtering facepieces.  OSHA most succinctly addressed which parts of 1910.134 apply to the voluntary use of N95 masks in a 2009 Interpretation Letter with this statement:

“If respiratory protection is not required and the employer did not advise the employee to use [an N95 dust mask], but the employee requested to use a dust mask, it would be considered voluntary use. Under these conditions, there would be no requirement to develop a written respiratory protection program; however, the employer would be responsible for providing the employee with a copy of Appendix D of 1910.134[, which outlines information for employees using respirators when not required under the standard].”

The voluntary use of N95 masks by employees does not require Continue reading

March Update on How Employers Can Respond to COVID-19 with FAQs

By:  Kara M. Maciel, Eric J. Conn, and Beeta B. Lashkari

COVID

 

Since publishing our previous post last month, there have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Notably, during the week of February 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) reported community spread of the virus that causes COVID-19 in California, Oregon, and Washington.  Community spread in Washington resulted in the first death in the U.S. from COVID-19, as well as the first reported case of COVID-19 in a health care worker, and the first potential outbreak in a long-term care facility.

Recent Developments and Federal Guidance

  • CDC has published an Interim Guidance for Businesses and Employers, cautioning employers to use the guidance to determine the risk of the Coronavirus, and not to use race or country of origin to make a determination. The guidance covers recommended strategies for employers to use, including: (1) actively encouraging sick employees to stay home; (2) separating sick employees; (3) emphasizing staying home when sick, respiratory etiquette and hand hygiene by all employees; (4) performing routine environmental cleaning; and (5) advising employees before traveling to consult CDC’s Traveler’s Health Notices and other CDC guidance.  Additionally, the guidance states that if an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (“ADA”).

Continue reading

REMINDER: February 1, 2020 Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work-Related Injuries: 5 Common Mistakes Employers Make

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).  The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Note that February 1st falls on a Saturday this year, but that does not affect the deadline to post.  So, if there will be noone present at your workplace to make the posting on that Saturday, be sure to get your 300A posted by Friday, January 31st.

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2019) is March 2, 2020.  Click here for more information about OSHA’s E-Recordkeeping Rule.

By February 1st every year, covered employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Logs are complete and accurate;
  • Correct any deficiencies identified on the 300 Logs;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
  • Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following five mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history. 

To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click here to send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.

We are exploring CLE approval for this series.  If you are interested in CLE or other forms of Continuing Education credits, click here to complete a survey.

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd

All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd

OSHA Settlement
Tips And Strategies

Tuesday, February 25th

Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th

Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th

Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd

Annual Cal/OSHA Update

Thursday, April 16th

Impact of the Election on OSHA

Thursday, October 22nd

E-Recordkeeping and
Injury
Reporting Update

Wednesday, May 20th

Updates about OSHA’s PSM
Standard and EPA’s RMP Rule

Tuesday, November 17th

OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th

Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.
Continue reading

Coalition to Comment on CSB’s Proposed Accidental Release Reporting Rule

Last week, the CSB issued a Notice of Proposed Rulemaking for its accidental release reporting rule, which establishes the criteria for when facility owners and operators are required to report to CSB accidental chemical release incidents and what must be included in those reports.  Here is a link to an article we posted that summarizes the CSB’s proposal and background about the situation. If promulgated, the rule would require owners and operators of stationary sources to report to the CSB within four hours any accidental chemical releases that results in a:

  • Fatality;
  • Serious injury; or
  • Substantial property damage.

A release reporting rule was mandated by the CSB’s enabling statute (decades ago), but the Agency had never issued such a rule. In February of this year, however, a federal court ordered the CSB to promulgate a final reporting rule within 12 months of the  court’s ruling—by mid-February 2020.  With CSB waiting until the 11th hour to publish this NPRM, interested stakeholders have only a very small window to make sure their concerns about the proposed rule are heard.  Comments are due to the CSB by January 13, 2020, and because the deadline to promulgate the rule is court-mandated, there likely will be no extension of the comment period.

Although the proposal indicated that CSB contemplated some of the duplicative effort that a separate CSB reporting rule would require, the proposed rule does not come close to addressing employers’ legitimate concerns about the burden this reporting requirement will place on employers at a time when their attention should be focused on emergency response. To compound the problem, the scope of reportable incidents and criteria for reportability aligns neither with CSB’s investigative jurisdiction nor with other agencies’ already-existing reporting requirements, and, as formulated, could create disincentives for robust internal reporting of incidents.

Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group is coordinating an ad hoc coalition of employers to prepare a set of comments to submit to the CSB. Continue reading

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

On Tuesday, November 19, 2019 at 1:00 PM Eastern, join Eric J. Conn, Amanda Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice for a complimentary webinar regarding Process Safety Update: The Latest with OSHA’s PSM Standard and EPA’s RMP Rule.”

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 process safety. OSHA and EPA took (or at least initiated) sweeping actions in response to the Executive Order, from enforcement initiatives (like a new wave of Refinery and Chemical Facility PSM National Emphasis Program inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

When President Trump took office with a de-regulatory agenda, the regulated community was left wondering what this meant for these changes to process safety regulations. But rather than a continued wave of action, the momentum splintered, with some initiatives proceeding, others coming to a halt, and others still being pared back. We saw immediate delays and the beginning of rollbacks of new process safety regulations, yet enforcement initiatives appeared to move forward unhindered. And now, with two years of the Trump Administration in the books, it is still unclear where the regulatory landscape will settle.

This webinar will review the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, as well as other major process safety developments from the federal government, state governments, and industry groups.

Specifically, participants in this webinar will learn about: Continue reading

2nd Annual Process Safety Summit in Washington, DC – October 15-16, 2019

Register today for the 2nd Annual Process Safety Summit in Washington, DC on October 15-16, 2019.

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC is an annual event in our nation’s Capital.  The Inaugural Summit last Fall welcomed more than 175 safety and legal professionals from stakeholders in the chemical, petrochemical, paper, and petroleum refining industries and other industries with operations covered by OSHA’s PSM Standard and EPA’s RMP Rule. The Summit focuses on the process safety regulatory landscape and industry best practices, with programming that covers rulemaking, enforcement programs, significant cases, trends as we move through the Trump Administration, best practices, and other key process safety regulatory issues impacting Industry.

The Agenda and format for the 2nd Annual Process Safety Summit in Washington, DC will include one-of-a-kind line-up of speakers and panels of senior government officials and industry experts, as well as moderated round table sessions.  The event is broken into two parts:

  1. A half-day of confidential breakout sessions with Industry stakeholders and a networking cocktail reception on October 15th; followed by
  2. A full-day of panels and speakers from OSHA, EPA, the OSH Review Commission, Former Heads of OSHA, the CSB, and others on October 16th.

This Summit Continue reading

In-Person OSHA, MSHA, and Labor Briefing (and Launch Party) in Columbus, OH – October 1, 2019

Join Conn Maciel Carey for an In-Person OSHA, MSHA, and Labor Briefing in Columbus, OH on Tuesday, October 1, 2019, and stay for a cocktail reception to celebrate the launch of our new Columbus, Ohio Office.

This complimentary program will feature panel discussions with current and former representatives from the National Labor Relations Board, OSHA and MSHA addressing key enforcement and regulatory developments.  The government representatives will be joined by senior corporate counsel from several multi-national corporations and Conn Maciel Carey’s Labor & Employment and Workplace Safety Law specialist attorneys.  The plenary sessions will cover topics including:

  • OSHA policy and enforcement developments
  • NLRB rulemaking and Board case law updates
  • MSHA regulatory and enforcement priorities
  • Other trending topics (joint-employer, pension withdrawal liability, whistleblower / anti-retaliation claims)

There will also be breakout sessions with discussions led by CMC attorneys covering issues of particular concern to various industry segments.

Here is the current agenda for the event:

The briefing Continue reading

Fate of Obama-Era OSHA Regulations and Enforcement Policies Under the Trump Administration

By Eric J. Conn and Micah Smith

In the final days and weeks of the Obama Administration, OSHA promulgated several significant regulatory changes.  For example, after several decades, it finally completed its update to the Walking Working Surfaces Standard (the regulation covering slips, trips and falls).  It also published a controversial Electronic Injury Data Submission Rule, extended the statute of limitations for recordkeeping violations, added two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals.  To name a few.

But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”?  While some Obama-era OSHA regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promises for deregulation, most have remained untouched.  Indeed, when Scott Mugno, President Trump’s nominee for OSHA’s top job, recently announced his decision that he was withdrawing his name from consideration, the likelihood that OSHA would remain without a permanent, appointed leader for the entirety of President Trump’s term has increased dramatically, and conversely, without a captain steering the ship, the likelihood of OSHA carrying out the Trump Administration’s plan for major de-regulatory action has dramatically decreased.

Much more likely, OSHA will continue to operate over the course of the next year and a half of the Trump Administration as it has since shortly after his Inauguration – modest de-regulatory efforts to nibble around the edges of Obama-era regulations, but nothing close to the level of radical deregulation that had been advertised on the campaign trail and which we have seen at other agencies.  Thus, the “midnight” regulations promulgated at the tail end of the Obama Administration appear likely to remain largely intact. Continue reading

Preparing for and Managing OSHA Inspections and Citations [Webinar Recording]

On July 23, 2019, Amanda Strainis-Walker, Aaron Gelb, and Lindsay DiSalvo of Conn Maciel Carey‘s national OSHA Practice presented a webinar regarding “Preparing for and Managing OSHA Inspections and Citations.”

Confounding expectations, federal OSHA under the Trump Administration has continued the same aggressive enforcement model we saw during the Obama Administration.  Indeed, by many metrics we are seeing enhanced enforcement — more inspections, higher civil penalties, record numbers of $100K+ citation packages, and a continuing rise in willful / repeat citations and worker safety criminal prosecutions.

OSHA has also continued its aggressive inspection strategies that create a minefield for employers.  In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during inspections and after citations are issued, are more dire now than ever before.

This webinar provided employers with the knowledge and tools they need to prepare in advance for an OSHA inspection, to manage the inspection to a successful outcome once it begins, and to make smart decisions about how to address citations after they issue.

Specifically, participants in this webinar learned:

Continue reading

Fate of Midnight Obama-era OSHA Rules [Webinar Recording]

On June 18, 2019, Kate McMahon, Micah Smith, Dan Deacon, and Beeta Lashkari of Conn Maciel Carey‘s national OSHA Practice presented a webinar regarding the “Fate of Various Obama-era OSHA Rules.”

In the final days (and even hours) of the Obama Administration, OSHA promulgated several significant regulatory changes.  For example, after several decades, it updated the Walking Working Surfaces Standard (the regulation covering slips, trips and falls).  It also published a controversial Electronic Injury Data Submission Rule, two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals.  To name a few.

But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”?  While many agency regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promise for deregulation, others have remained untouched.  This webinar will review the status of these OSHA Rules and where they may be headed.

Participants in this webinar learned about:

Continue reading

Key Cal/OSHA Issues California Employers Must Track [Webinar Recording]

On May 28, 2019, Andrew J. SommerEric J. Conn and Megan S. Shaked  of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “Key Cal/OSHA Issues California Employers Must Track.”

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 should be on the lookout for a new permanent E-Recordkeeping injury data submission rule, a new focus on finding Repeat violations, and the roll-out of several new California-unique rules.

Participants in this webinar learned about:​

Continue reading

2019 Update on OSHA’s E-Recordkeeping and Significant Injury Reporting Rules [Webinar Recording]

On February 12, 2019 Lindsay DiSalvo and Dan Deacon from Conn Maciel Carey LLP’s national OSHA Practice presented a webinar regarding: “Updates About OSHA’s E-Recordkeeping and Significant Injury Reporting Rules.

OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, in January 2019, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.

Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015.  Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA.  In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.

During this webinar, participants learned: Continue reading

BREAKING NEWS: OSHA Issues Final Amended Rule Scaling Back Electronic Injury Recordkeeping

By Eric J. Conn and Dan C. Deacon

Yesterday OSHA announced and today OSHA officially published its Final Rule amending its Electronic Recordkeeping Rule.  After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump Administration, OSHA has finally approved changes (hopefully just the first step) to pare down the E-Recordkeeping Rule. 

On July 30, 2018, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule.  83 Fed. Reg. 36494 (July 30, 2018).  The proposed Rule included only one significant change to the current regulation.  Specifically, the proposal sought to rescind the requirement for the largest employers — those with individual establishments with 250 or more employees — to annually submit to OSHA’s online web portal the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses.

The proposal left intact the requirement for these large employers and many more smaller employers to annually submit 300A annual summary data.  Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the final rule does not disturb in any manner the controversial and duplicative “anti-retaliation” provisions, or the interpretations of those provisions included in the Preamble to the 2016 Final Rule.  These are the provisions that endeavored to restrict employers’ authority to discipline employees for late injury reporting or for safety violations, as well as limit employer’s ability to perform post-incident drug testing and to provide safety incentives.  For more information about these elements of the E-Recordkeeping Rule, check out our previous blog article regarding the E-Recordkeeping Anti-Retaliation provisions.

Tortured History and Difficulties Implementing E-Recordkeeping

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer participate in its annual injury data survey, employers’ injury and illness recordkeeping data was maintained internally.  In a major policy shift, President Obama’s OSHA Continue reading

Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review [Webinar Recording]

On January 15, 2019, the Partners in Conn Maciel Carey’s national OSHA Practice presented a webinar on “The Top 5 OSHA Issues to Track in 2019, and OSHA’s 2018 In Review.” 

The ball has dropped, the confetti has been swept out of Times Square, and 2018 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, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term.  This webinar reviewed OSHA enforcement, rulemaking, and other developments from 2018, and discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants learned: Continue reading

OSHA’s New Site-Specific Targeting Inspection Initiative

By Dan C. Deacon and Eric J. Conn

After years of wondering how OSHA could possibly manage and use data collected under the 2016 E-Recordkeeping Rule, the agency has finally revealed its hand.  Last month, OSHA launched its Site-Specific Targeting 2016 (“SST-16”) inspection plan, which outlines the agency’s strategy to target establishments for inspection based on the 300A data collected by OSHA under its Final Rule to Improve Tracking of Workplace Injuries and Illness (i.e.  the “E-Recordkeeping Rule”).

What is OSHA’s SST-16 Inspection Plan?

The SST-16 Inspection Plan is OSHA’s site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees.  The Plan is based on the calendar year 2016 300A injury and illness summary data that employers submitted to OSHA via OSHA’s Injury Tracking Application (aka, the E-Recordkeeping Portal) in December 2017.

Employers should not be surprised by OSHA’s site-specific targeting plan, as this is not a novel program for OSHA. SST was the grandfather of all OSHA enforcement emphasis programs.  Prior to 2014, SST programs used injury and illness information collected under the former OSHA Data Initiative to target the agency’s inspection resources.

OSHA believes the SST Program is “program helps OSHA achieve its goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.

The SST-16 Plan selects individual establishments for inspection based on their CY 2016 300A injury data submitted under the E-Recordkeeping Rule.  OSHA has created a software that will generate a list of targeted establishments for enforcement from this pool of data.  The targeted establishments will be those with Continue reading

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking.  We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases.  And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.

As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.


2019 OSHA Webinar Series – Program Schedule
OSHA Year in Review & 2019 Forecast

Tuesday, January 15th

Tips to Survive an OSHA Inspection

Tuesday, July 23rd

Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th

Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th

OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th

OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th

Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th

What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd

New Cal/OSHA Enforcement Issues

Tuesday, May 28th

 OSHA PSM and EPA RMP Update

Tuesday, November 19th

The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th

Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th

See below for descriptions of the webinars and registration links Continue reading

[Webinar] OSHA and the ADA: How Two Labor Laws Align and Diverge

On Tuesday, December 4, 2018 at 1 PM Eastern, join Jordan B. Schwartz and Lindsay A. DiSalvo of the law firm Conn Maciel Carey for a complimentary webinar: “OSHA and the ADA: How Two Labor Laws Align and Diverge.”

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.”  But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers.  This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard.  It is important to understand the law in this context, especially due to America’s aging workforce.

The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

​During this webinar, participants will learn: Continue reading

Fall 2018 Unified Agenda Forecasts Several Significant Employment-Related Regulatory & Deregulatory Actions

The Employer Defense Report

By: Mark M. Trapp and Aaron R. Gelb

On October 17, 2018, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”). Reports such as these, usually issued twice a year, set forth each federal agency’s forecast of its anticipated actions and rulemaking priorities for the next six-month period. It also provides estimated timelines for completion. This regulatory to-do list provides insight into the administration’s upcoming priorities. The current Agenda emphasizes the Trump Administration’s efforts to deregulate industry, but also includes several regulatory items of importance to employers.

Here is a summary, broken down by department, of the most significant employment-related items addressed in the Agenda.

Department of LaborFall 2018 Agenda_DOL_3

Wage and Hour Division

Joint Employment. The Obama administration took a much broader view of “joint employment” – situations in which a worker may be considered an employee of two or more separate employers. Following the lead of the…

View original post 1,222 more words

Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule [Webinar Recording]

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 reviewed 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.

Continue reading

Key Takeaways from the Inaugural Process Safety Summit in Washington, DC

Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC

By the national OSHA Practice at Conn Maciel Carey LLP

The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success.  The event allowed more than 160 safety and legal representatives from the petroleum refining, chemical manufacturing, paper manufacturing, and fertilizer industries to hear from and share with senior federal government officials from OSHA, EPA and the Chemical Safety Board, both through interactive panel discussions and breakout discussions.  The agency panels and facilitated discussions covered topics ranging from enforcement under the Trump Administration, to the status of OSHA’s PSM and RMP Rulemakings, candid debates about major issues in dispute in recent PSM and RMP cases, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.

Introduction

The day began with welcome remarks from Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice.  Eric set two themes for the Summit:

  1. the importance of candid discussions between regulators and the regulated community; and
  2. the near-term risk of agencies possibly revisiting and revising the historical performance-oriented paradigm of the process safety regulatory framework.

Too often, OSHA and EPA representatives complain that Industry “can make up the rules as it goes along.” – Tweet from a former Senior OSHA Official.

Statements like that imply a haphazard approach to process safety that it is not reflected by the diligent work of refiners and manufacturers across the country.  Our experience shows a much different take on process safety.  We hear about all of the ways that process safety is evolving, we watch how lessons are being learned and applied from incidents and experience, and we see how much time is spent anticipating the kinds of issues that could cause a process safety incident.  More importantly, remarks about Industry “making up the rules as it goes along” also reflect a flawed view that Continue reading

In the Wake of Criticism of the E-Recordkeeping Anti-Retaliation Rule, OSHA Issues New “Guidance”

By Eric J. Conn and Beeta B. Lashkari

On May 11, 2016, OSHA published its Final Rule for injury and illness recordkeeping electronic data submissions — what we refer to as the E-Recordkeeping Rule. The rule fundamentally changed OSHA’s long-standing injury and illness recordkeeping program by requiring injury and illness data to be proactively shared with OSHA, which intended originally (and still, but after some delay) to publicize the data for all the world to see. The 2016 E-Recordkeeping Rule required:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only.

In addition to the electronic data submission requirements, the E-Recordkeeping also introduced (out of left field) some new anti-retaliation restrictions that were intended to eliminate employer policies that may discourage employees from reporting injuries, purportedly for the nefarious purpose of reducing the numbers of injuries the employer has to share with OSHA.  These anti-retaliation provisions included very generic, vague language, but through a series of memos, interpretation letters, and other guidance, we have learned that the anti-retaliation elements primarily restrict employers’ use of safety incentive programs (prizes for injury-free work), post-incident drug testing, executive compensation and bonuses, and post-incident discipline.  Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the Preamble to the Final Rule.  For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.

Since promulgation in May 2016, implementation of all aspects of the Rule has been mired in difficulty.  Continue reading

All You Never Wanted to Know about OSHA Repeat, Willful & Egregious Violations [Webinar Recording]

On October 16, 2018, Eric J. Conn and Amanda R. Walker of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Everything You Never Wanted to Know about OSHA Repeat, Willful and Egregious Violations.” 

During the Obama Era, OSHA sharpened its enforcement teeth considerably by rewriting policies to characterize more violations as repeat and willful, and by significantly increasing its civil penalty authority. Now, OSHA violations characterized as Repeat or Willful carry penalties up to approx. $126,000 each. But what are Repeat and Willful violations? And what are these “Egregious” (or per-instance) citations OSHA has been issuing more and more often that lead to multi-million dollar enforcement actions?

This webinar covered the legal standard for Repeat, Willful and Egregious violations, the circumstances most often associated with them, the consequences for receiving them, and how OSHA’s enforcement policies have resulted in significant increases in the frequency with which we see them.

Participants in this webinar learned: Continue reading