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…

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[Webinar] Process Safety Update: The Latest with OSHA’s PSM Standard & 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 manufacturing processes. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like the second wave of Refinery PSM NEP inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

Then President Trump took office with a de-regulatory agenda.  Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?

This webinar will review

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 the 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 roundtable 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 case, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and how to 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 working to upend 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 David Michaels, Former Assistant Secretary of Labor for OSHA.

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, much more often on Industry’s own initiative than in response to a regulatory action.  We watch how lessons are being learned and applied from incidents and experience.  We see how much time is spent trying to anticipate the kinds of issues that could cause a process safety incident.  And we feel a regulatory backlash, when process safety problems are most often found in outliers or with operations not even covered by OSHA’s or EPA’s process safety regulations.

More importantly, remarks about Industry making up the rules as it goes along also reflect a flawed belief by regulators 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

D.C. Circuit Strikes Down the Trump EPA Delay of Obama EPA’s Overhaul of the Risk Management Program Rule

By Micah Smith, Eric J. Conn, and Beeta Lashkari

Today, the U.S. Court of Appeals for the D.C. Circuit handed EPA (and Industry) a significant setback in the long-running battle over the 2017 Amendments to EPA’s Risk Management Program (RMP) Rule (EPA’s companion regulation to OSHA’s Process Safety Management Standard).  Specifically, in a per curiam order in Air Alliance Houston v. EPA, the D.C. Circuit held that EPA under the Trump Administration acted improperly when it issued a final rule delaying the effective date by 20 months (from June 2017 to February 2019), of a significant set of Amendments to the RMP Rule that had been promulgated in the final days of the Obama Administration. 

This ruling creates significant concern for the regulated community.  The Amendments require major overhauls to they way covered employers implement their risk management plans.  But EPA is still advancing a rulemaking to rescind and narrow those Amendments.  Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs.

Indeed, EPA’s express purpose of the lengthy delay of the RMP Amendments was to provide time for EPA to reconsider and eliminate or curtail the sweeping new provisions.  The D.C. Circuit criticized EPA for its attempts to delay a regulation that it had just recently issued, stating in the written opinion that:

“the Delay Rule thus contains no provisions that advance or accomplish these goals [of preventing accidental releases and protecting human health and the environment], but instead delays these objectives contrary to EPA’s prior determinations in a rulemaking.”

While the Court criticized the agency for Continue reading

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tues., Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.


Agenda

1:00 PM – Registration and Networking
1:30 PM – OSHA Panel
  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading

OSHA’s Policy of Public Shaming: Status and Future under the Trump Admin. [Webinar Recording]

On August 21, 2018, Eric J. Conn and Aaron R. Gelb of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “OSHA’s Policies of Public Shaming: the Status under the Trump Admin. and the Future.

As a small budget agency, OSHA has long looked for policies that will leverage individual enforcement actions to have the greatest impact on Industry.  That is the origin of OSHA’s controversial policy of “Regulation by Shaming.”  During the Obama Administration, employer shaming became a significant enforcement tool and came in many forms, from increasing use of enforcement press releases that included embarrassing and inflammatory quotations about employers, to maintaining a public bad actors list in connection with the Severe Violator Enforcement Program, and the pièce de résistance – publishing a Rule by which OSHA will collect and publish employers’ injury and illness data and details about fatalities.

The Trump Administration has signaled it will take a different approach to public shaming, but at the very least, the vestiges of these policies still remain, and some Administration actions suggest they are here to stay.

During this webinar, participants learned about:

Continue reading

OSHA Announces Proposed Changes to its Controversial E-Recordkeeping Rule — Industry Comments Are Needed

By the OSHA Practice at Conn Maciel Carey LLP

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 taken a step (hopefully just the first step) to pare down the E-Recordkeeping Rule.  Specifically, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule.  While the proposed change will undoubtedly be welcomed by Industry, the scope of the proposed change, however, does not address most of the fundamental concerns employers have repeatedly raised about the controversial rule.

The Proposed Rule includes only one significant change to the current regulation.  The proposal seeks to eliminate the requirement for the largest employers, those with establishments with 250 or more employees, to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses via OSHA’s new online web portal.  However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data via OSHA’s electronic portal.

Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the proposed rule does not disturb in any manner the highly controversial “anti-retaliation” provisions, or the interpretations of those provisions included in the 2016 final rule preamble.  In addition to establishing requirements for electronic submission of injury and illness recordkeeping data, the 2016 E-Recordkeeping Rule endeavored to restrict employers’ rights to adopt employee injury reporting policies and expanded OSHA’s enforcement authority by introducing a vague new set of “anti-retaliation” provisions.

Particularly controversial was the Continue reading

Inaugural Process Safety Summit in Washington, DC – October 22-23, 2018

Attend the Inaugural Process Safety Summit in Washington, DC on October 22-23, 2018, presented by Conn Maciel Carey LLP and sponsored by the American Fuel and Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API).

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC will be an annual event featuring a full-day program in Washington, DC gathering interested stakeholders from the chemical, petrochemical, and petroleum refining industries, and other industries with operations impacted by OSHA’s PSM Standard and EPA’s RMP Rule.

The focus of the Process Safety Summit in Washington, DC will be on the process safety regulatory landscape.  The full-day Program will cover the PSM/RMP rulemakings, enforcement programs, significant cases, trends through the transition to the new Administration, best practices, and other key process safety regulatory issues impacting Industry.

This Process Safety Summit fills an important gap in Washington, DC.  Although there are opportunities for trade groups and employers to interact with key government regulators, none of those opportunities focus on process safety, and the process safety-oriented events that do exist are far from Washington, DC, making it hard to attract more than one senior agency official.

The format and agenda will include Continue reading

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 2 of 2 – Five Common LOTO Mistakes)

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) (LOTO) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article lays out:

  • [Part 1]: 5 reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
  • [Part 2]: 5 common mistakes employers make implementing LOTO requirements.

Part 1 Summary: Five Reasons it is Critical to Get LOTO Right

As we discussed in Part 1 of this two-part article, there are five important OSHA enforcement reasons why it is vital for employers to truly grasp OSHA’s regulatory requirements for lockout/tagout (LOTO) and implement them.

Those 5 reasons are:

  1. Amputation Injuries Create Special Reporting Obligations
  2. LOTO Citations are Low Hanging Fruit for OSHA
  3. OSHA is Actively Pursuing LOTO Violations with a National Emphasis Program
  4. LOTO Violations Qualify for the Severe Violator Enforcement Program
  5. LOTO Violations are Among the Most Used for OSH Act Criminal Prosecutions

For a detailed discussion about those reasons, check out Part 1 of this two-part article.

Part 2: Five Common LOTO Mistakes

This part details the five most common mistakes and misunderstandings associated with OSHA’s regulatory requirements for LOTO.

     1. Confusion about When the LOTO Standard Applies

Normal production operations are not covered by the LOTO standard.  Rather, the requirements of OSHA’s LOTO standard kick in during servicing and/or maintenance, or any production activity that requires an employee to remove or bypass a guard or other safety device, or if an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is performed upon the material being processed.  Otherwise, the employer is expected to install and maintain appropriate guards that protect employees as required by 1910.212, OSHA’s machine guarding standard.

While the LOTO and machine guarding standards tend to complement each other—one protects employees during normal production operations (guarding), while the other protects employees during servicing or maintenance (LOTO).  Technically, OSHA may not cite the Continue reading

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 1 of 2 – Five Reasons to Get LOTO Right)

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article will lay out:

  • [Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
  • [Part 2]: Five common mistakes employers make when implementing the LOTO requirements.

Part 1: Why it is Critical for Employers to Get LOTO Right

The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.

Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized.  Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled.  The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.

OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.”  OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.

While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.

    1.  Amputation Injuries Create Special Reporting Obligations

Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA.  Continue reading

Joint and Multi-Employer, Independent Contractor, and Temp Labor OSHA and Employment Issues [Webinar Recording]

On June 5, 2018, Jordan B. Schwartz, Eric J. Conn, and Lindsay A. DiSalvo of Conn Maciel Carey, presented a webinar regarding “Joint and Multi-Employer, Independent Contractor, and Temp Labor OSHA and Employment Law Issues.

Employers’ perceptions about their legal responsibilities for certain workers is not always reality, particularly in the context of oft-changing interpretations of what constitutes an employer-employee relationship. An employer may classify workers as a temp or independent contractor, but that does not mean DOL agrees. At the tail end of the Obama Admin.,  DOL issued guidance that a majority of workers should be treated as employees, insinuating that in most cases, employers are accountable for the obligations of an employer-employee relationship. However, the Trump Admin. appears is shifting gears. That guidance was withdrawn by new Sec. of Labor Acosta. Congress has also begun to undercut the broad joint-employer standard established by the NLRB in Browning-Ferris, by revisiting language in applicable laws. It remains essential for employers to carefully evaluate employment relationships and their own functions in the multi-employer context.

Even if there is no legal employer-employee relationship, companies may have safety obligations and liability depending on their role at multi-employer worksites or when using temporary workers. Protection of temporary workers was a priority of OSHA in the prior Admin., and the guidance developed in that context remains the current standard for host employers and staffing agencies. OSHA has also stood by its multi-employer policy, though it is being challenged in federal court.

Participants in this webinar learned about: Continue reading

Tug-of-War Between Fed OSHA and the State OSH Plans over the E-Recordkeeping Rule

By Eric J. Conn, Dan Deacon, and Beeta Lashkari

A fascinating jurisdictional tug-of-war has broken out between federal OSHA and a few fed OSHA approved State OSH Programs, in relation to OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule).  The E-Recordkeeping Rule requires large employers and smaller employees that operate in certain “high hazard industries” to proactively submit their electronic injury and illness data to OSHA through a special web portal – the Injury Tracking Application (“ITA”).

State Plan Adoption of OSHA’s E-Recordkeeping Rule

When fed OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because the State Plan states all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new fed OSHA rule.

Most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, ahead of the deadline to submit data the first year of the Rule, but as of the end of 2017, when employers’ 2016 300A data was due to be submitted, eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule.  Those states included:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

The delay by these States has primarily been a result of fed OSHA’s numerous announcements that it will soon issue a Notice of Proposed Rulemaking to amend (or rescind) the federal E-Recordkeeping Rule.  The State Plans have been reluctant to invest the time and resources to implement their own versions of the rule, only to watch fed OSHA change it, causing the states to have to change their own rules again very soon.

Of those eight states, only Vermont has since finalized its E-Recordkeeping Rule this year, and the other seven remain delinquent in their obligation to adopt the Rule.

Last year, fed OSHA and those eight state plans apparently recognized that only employers in fed OSHA states or State Plan states that had already adopted the E-Recordkeeping rule were required to submit their 300A data to OSHA.  This year, however, fed OSHA spoke up about the delinquent states. Continue reading

Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

On May 15, 2018, Amanda Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “The Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule.

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

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

Participants in this webinar learned about: Continue reading

Conn Maciel Carey Adds Former Attorney-Investigator from the Chemical Safety Board to its OSHA Practice

Conn Maciel Carey LLP, a boutique law firm with national practices in workplace safety (OSHA and MSHA), labor & employment, and litigation, is pleased to announce that Beeta B. Lashkari has joined the firm as an attorney in its Washington, D.C. office.

Ms. Lashkari, a former attorney-investigator at the U.S. Chemical Safety and Hazard Investigation Board (CSB), will advise and represent clients in a wide-range of inspections, investigations, and enforcement actions, including those from the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency, the CSB, and state and local regulators. As one of only four attorney-investigators at the CSB, Ms. Lashkari was involved in several major investigations of chemical accidents.

“Beeta brings a unique array of experience and perspective that will enhance the safety and health law services we provide to employers across all industries, and particularly chemical and petrochemical manufacturers,” said Eric J. Conn, Chair of the firm’s national OSHA practice. “We’ve been busy this year expanding our firm, and Beeta is another superb addition to our already deep bench of OSH law experts.”

Ms. Lashkari will also support the firm’s labor and employment practice group in managing workplace investigations, including Continue reading

Unlock The Mysteries of OSHA’s Lockout/Tagout Standard [Webinar Recording]

On February 20, 2018, Eric J. Conn and Aaron R. Gelb of the national OSHA Practice Group at Conn Maciel Carey presented a webinar: “Unlock The Mysteries of OSHA’s Lockout/Tagout Standard.

OSHA’s Lockout/Tagout (Energy Control) Standard is always one of OSHA’s most frequently cited standards, and now, with the “Amputations National Emphasis Program” raging on into 2018, as well as LOTO violations continuing to be considered “high emphasis hazards” to qualify employers into the dreaded Severe Violator Enforcement Program, it is critical for employers to get Lockout/Tagout right.  While LOTO continues to be an important standard, it also continues to be one of the least understood standards.  This webinar will highlight the Top 10 most misunderstand and frequently cited aspects of the LOTO rule, and forecast some potential changes to the rule and OSHA’s enforcement of it.

During this webinar, participants learned: Continue reading

REMINDER: Feb. 1st Deadline to Certify and Post OSHA 300As: Four Common Mistakes Employers Make

By Eric J. Conn

This is your annual reminder about the important annual 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 code is for the set of low hazard industries exempted 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).

This February 1 requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, is a new requirement for certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through a web portal.  Depending on how OSHA resolves an internal policy debate and the outcome of legal challenges from labor groups, that data may also be shared publicly.

By February 1st every year, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a RK 2summation 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.

Four Common 300A Mistakes that Employers Make

We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty: Continue reading

Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice“We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  Continue reading

OSHA’s 2017 in Review and a 2018 Forecast [Webinar Recording]

On January 16, 2018 Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding: “OSHA’s 2017 in Review and a 2018 Forecast.

The ball has dropped, the confetti has been swept out of Times Square, and 2017 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, the question on everyone’s mind (well, maybe just OSHA nerds like us), is what can we expect from OSHA in the first full year of the Trump Administration?

In this webinar event, attorneys from the national OSHA Practice Group at Conn Maciel Carey reviewed OSHA enforcement, rulemaking, and other developments from 2017, and discussed the Top 10 OSHA Issues employers should monitor and prepare for in the New Year.  During this webinar, participants learned:

  • 2017 OSHA enforcement data and trends, and the future of OSHA enforcement
  • The Top 10 OSHA issues employers should track in 2018
  • Rulemaking and de-regulatory developments and predictions
  • Status/future of the roll-out of Pres. Trump’s De-Regulatory Agenda
  • Other significant OSHA policy issues to track in the New Year

Click here to to view a recording of the webinar. Continue reading

OSHA’s E-Recordkeeping Deadline Extended Again – Stroke of Midnight December 31, 2017

By Eric J. Conn

The December 15, 2017 deadline for large employers and small employers in certain “high hazard industries” to submit injury and illness data to OSHA has just passed, but it is not too late to submit injury data without being cited by OSHA for missing the deadline.  OSHA announced today that will continue to accept employers’ 300A annual summary injury data for calendar year 2016 through the agency’s new Injury Tracking Application (ITA) (the portal that will receive the injury data) until midnight on December 31, 2017, and will not take any enforcement action against those employers who submit data between now and then, even though the submissions would technically be late.  Beginning January 1, 2018, the portal will no longer accept 2016 data.

We have closely tracked the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, or even possibly to be rescinded entirely, no such action was taken to interfere with the first required data submission, other than to extend the deadline from this summer to December 15th, and now to December 31st, for all intents and purposes.

Therefore, if employers missed the deadline, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application, and submit covered injury data (i.e., their 2016 OSHA 300A Annual Summary data) by December 31, 2017.

Background about the Electronic Recordkeeping Rule

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employers’ Injury and Illness Recordkeeping Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months each year, used the data themselves to make decisions about how to reduce risks of injuries and illnesses in their workplaces, and then stored the records in a cabinet or desk drawer for five years.  Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.

Key Changes in OSHA’s New Recordkeeping Rule:

  1. Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
  2. All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries. In this first year of the rule, however, for 2016 injury data to be submitted in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.
  3. The submissions to OSHA must be made electronically, via a purportedly secure web portal.
  4. OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible. It is unclear whether the Trump Administration will publish the data, but the records may nonetheless be subject to Freedom of Information Act requests by plaintiffs’ attorneys, the media, union organizers, and competitors, to use the data in a variety of ways to harm employers.

Deadline to Submit Data – A Moving Target

The deadline to submit data has been a moving topic and source of uncertainty since the Trump Administration took the reins at OSHA.  Continue reading

Announcing Conn Maciel Carey’s 2018 OSHA Webinar Series

The Trump Administration has taken the reins at OSHA, and the first year of the new OSHA’s enforcement and regulatory (or de-regulatory) agenda is in the books.  We have already seen significant changes in the way OSHA does business and the tools available to the Agency in its toolkit.  Now, as the new Administration finishes filling out the OSHA leadership team with its own appointees, we are sure to see shifting of enforcement priorities, budgets and policies, and an amplified effort to repeal or re-interpret controversial Obama-era OSHA rules and policies.  Accordingly, it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2018 OSHA Webinar Series, presented by the firm’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this period of flux.

To register for an individual webinar, click the link below the program description.  To register for the entire 2018 series, click here to send us an email request, and we will register you.  If you missed any programs from prior years, here is a link to an archive of recordings of those webinars.


OSHA’s 2017 in Review & 2018 Forecast

Tuesday, January 16th

New Cal/OSHA Enforcement Issues

Tuesday, July 10th

Unlock the Mysteries of OSHA’s Lockout/Tagout Standard

Tuesday, February 20th

Future of OSHA’s Policy
of Public Shaming

Tuesday, August 21st

OSHA’s New Leadership Team

Tuesday, March 20th

Walking/Working Surfaces Update

Tuesday, September 18th

OSHA’s New Silica & Beryllium Rules

Tuesday, April 17th

Repeat, Willful & Egregious CiTations

Tuesday, October 16th

OSHA’s New E-Recordkeeping
and Anti-Retaliation Rule

Tuesday, May 5th

 Process Safety Update:
OSHA PSM and EPA RMP

Tuesday, November 13th

Joint- and Multi-Employers,
Contractors and Temps

Tuesday, June 5th

OSHA and the ADA: How Two
Labor Laws Align and Diverge

Tuesday, December 4th

See below for descriptions of the webinars and registration links

Continue reading

Status of OSHA’s Electronic Recordkeeping Rule – 1st Deadline (Dec. 15) to Submit Injury Data is Upon Us

By Eric J. Conn and Dan C. Deacon

The December 15, 2017 deadline for large employers and small employers in certain “high hazard industries” to submit injury and illness data to OSHA is less than a month away.  We have been tracking closely the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, or even possibly to be rescinded, it appears that the initial data submission deadline of December 15th is going to stand.

Therefore, if employers have not already done so, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application (the portal that will receive the injury data), and submit covered injury data (i.e., their 2016 OSHA 300A Annual Summary data) by December 15, 2017.

Background about the Electronic Recordkeeping Rule

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employers’ Injury and Illness Recordkeeping Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months each year, used the data themselves to make decisions about how to reduce risks of injuries and illnesses in their workplaces, and then stored the records in a cabinet or desk drawer for five years.  Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.

Key Changes in OSHA’s New Recordkeeping Rule:

  1. Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
  2. All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries. In this first year of the rule, however, for 2016 injury data to be submitted in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.
  3. The submissions to OSHA must be made electronically, via a purportedly secure web portal.
  4. OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible. It is unclear whether the Trump Administration will publish the data, but the records may nonetheless be subject to Freedom of Information Act requests by plaintiffs’ attorneys, the media, union organizers, and competitors, to use the data in a variety of ways to harm employers.

Deadline to Submit Data – A Moving Target

The deadline to submit data has been a moving topic and source of uncertainty since the Trump Administration took the reins at OSHA.  Continue reading

State Plan Implementation of OSHA’s E-Recordkeeping Data Submission Rule

By Eric J. Conn and Dan C. Deacon

OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires employers of  certain sizes that fall into certain categories to proactively submit electronic injury and illnesses data to OSHA through its new web portal – the “Injury Tracking Application.”  The new rule dramatically changes the responsibilities and impacts of OSHA’s long-standing injury and illness recordkeeping program.RK Fact Sheet

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer to participate in its annual injury data survey, employers’ OSHA 300 Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months, used the data themselves to make decisions about how to reduce risk of injury and illness in their workplaces, and then stored the records in a cabinet or desk drawer for five years.  Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.

Key Changes in OSHA’s New Recordkeeping Rule

  1. All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
  3. All of the submissions to OSHA must be made electronically, via a purportedly secure website.
  4. OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible.

Note however, in this first year of the rule, for the upcoming data submission of 2016 injury data to be made in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.

Deadline to Submit Data – A Moving Target

The deadline to submit data has been a topic of discussion, and there remains some uncertainty whether employers will be required to electronically submit injury and illness data.  Continue reading

Trump Announces Nomination of Scott Mugno to Lead OSHA as Assistant Secretary of Labor

By Eric J. Conn

After months of rumors and speculation, this morning, October 30, 2017, the White House finally announced its choice for the role of Assistant Secretary of Labor for OSHA.  I am personally very pleased that nomination was Scott A. Mugno.

Scott presently serves as the Vice President of Safety, Vehicle Maintenance, and Sustainability for FedEx Ground.  In that position, he has been in charge of the safety and health mission for an organization with nearly 90,000 workers, across more than 588 workplaces, and a fleet of more than 58,000 trailers.  He has an impeccable reputation in the safety space as a great leader, a tremendous motivator for safety, a faithful believer in the safety mission, and a true safety professional.  For the past six years, Mr. Mugno has successfully curated FedEx Ground’s core principle of “Safety Above All,” which means that:

“no package [FedEx] could ever carry is worth jeopardizing the safety of one employee.”

The White House touted Scott’s qualifications for the position of OSHA’s chief administrator in a press release announcing his nomination:

“His responsibilities in both [of his Safety leadership positions at FedEx] included developing, promoting and facilitating the safety and health program and culture. Mr. Mugno was twice awarded FedEx’s highest honor, the FedEx Five Star Award, for his safety leadership….”

Scott has been a friend and professional associate for many years, and I believe his diverse background puts him in a unique position to be a dynamic and successful leader at OSHA.  In his current job, Scott is a Corporate Safety Director.  Previous to his FedEx Ground position, Scott was the Corporate Safety Director at FedEx Express in Memphis.  Prior to that, he had been a practicing regulatory attorney for both private employers and law firms.  Before that, he spent six years serving our nation as an attorney in the Army JAG corps.  The combination of all of these past experiences puts Scott in a unique position to successfully execute OSHA’s safety mission.

OSHA’s chief administrator has typically come from the ranks of other government roles, academia, or private law firms.  In OSHA’s history, rarely has the agency been led by someone who has served as Continue reading