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

Reporting In-Patient Hospitalizations to OSHA: Common Misunderstandings and Mistakes

By Eric J. Conn and Lindsay A. DiSalvo

The regulatory requirement at 29 C.F.R. 1904.39, OSHA’s Fatality and Serious Injury Reporting Rule, which requires employers to report to OSHA certain in-patient hospitalizations, may seem straightforward, but there are several nuances employers routinely miss that affect the determination whether a hospitalization is actually reportable to OSHA.

Although failing to timely report a reportable hospitalization can be cited, and could set up an employer for costly Repeat violations, over-reporting has its own significant consequences.  Reporting hospitalizations very often triggers an on-site enforcement inspection, and OSHA issues a citation at least 75% of the time it conducts an inspection (an even higher percentage for incident inspections).  Moreover, at least 85% of OSHA citations are characterized as Serious, Repeat or Willful, and OSHA’s civil penalty authority has skyrocketed by 80% in the past two years.  Accordingly, it is critical that employers understand the intricacies of what makes an employee’s visit to the hospital a reportable event, and conversely, what does not, so as to avoid unnecessary and costly reports to OSHA.

As we outlined in a prior article discussing OSHA’s updated Fatality and Serious Injury Reporting Rule, under the current reporting requirements, employers must:

“within 24 hours after the in-patient hospitalization of one or more employees [that occurs within 24 hours of the work-related incident] . . . report the in-patient hospitalization . . . to OSHA.”

This is a significant change from the prior reporting rule, which required a report to OSHA only if three or more employees were hospitalized overnight.  It was extraordinarily rare that a single workplace incident resulted in the overnight hospitalization of three or more workers, and so the instances of reporting under that rule were infrequent.  The new rule, however, requires a report to OSHA for the hospitalization of a single employee, which has opened the door to thousands more incidents that must be evaluated for possible reporting.

Although the current regulation has increased the number of employee hospitalizations that are being reported to OSHA, many of those incidents reported to OSHA did not actually meet the criteria for reporting, based on a very particular definition of hospitalization and a limited time period for when the hospitalization must occur.  In other words, many incidents are being reported to OSHA (effectively inviting OSHA to conduct a site enforcement inspection) that should not have been reported at all. Continue reading

[Webinar] Addressing Employee Complaints: Whistleblower Claims and OSHA Notices of Hazards

On Tuesday, October 17, 2017 at 1:00 PM Eastern, join Kara Maciel, Amanda Walker, and Dan Deacon of Conn Maciel Carey’s national Labor & Employment Practice and OSHA Practice, for a complimentary webinar regarding “Addressing Employee Complaints: Whistleblower / Retaliation Claims and OSHA Notices of Alleged Hazards.”

OSHA whistleblower complaints have been on the rise, and the Equal Employment Opportunity Commission receives more charges of retaliation than any other type of claim for the statutes they regulate, including Title VII discrimination.

It is essential for employers to develop, maintain, and evaluate their employee complaint policy and procedure to foster a supportive work environment and address employee issues before they turn into a regulatory issue or the basis for litigation.  As part of this complaint policy, employers must also ensure their management representatives understand how to effectively interact with a complaining employee after a grievance has been communicated, including dealing with performance issues in a manner that makes clear any adverse employment action is distinct from the employee’s complaint.

During this webinar, participants will learn:

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OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State” [Webinar Recording]

On August 15, 2017, Kathryn M. McMahon, Amanda Strainis-Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding the OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State”

President Trump was carried to the White House on promises (or threats) of rolling back government regulations.  At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed much of Trump’s agenda with the phrase, “deconstruction of the administrative state,” meaning the system of regulations and taxes that the president says have stymied economic growth.  OSHA regulations are apparently at the heart of this deconstruction.  Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape.  This webinar will take a deep dive into the actions taken by the Trump Administration in conjunction with the Republican Congress to roll-back OSHA regulations or otherwise lessen the punitive influence of OSHA on our nation’s employers.  From the repeal of several Obama-era midnight rules, to a budget proposal that could gut OSHA’s enforcement efforts, to a series of Executive Orders that shift to a business friendly regulatory agenda.

This webinar addressed:

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Trump Admin. Pumps the Brakes on New OSHA Rules in its First Regulatory Agenda

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

President Trump was carried to the White House on promises (or threats) of rolling back government regulations.  At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed Pres. Trump’s agenda with the phrase: “deconstruction of the administrative state,” meaning the system of regulations the President believes have stymied economic growth. OSHA regulations are apparently at the heart of this deconstruction.  Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape, from the Congressional Review Act repeal of Obama-era midnight rules, to a budget proposal that could shrink OSHA’s enforcement efforts and prioritize compliance assistance, to a series of Executive Orders that shift OSHA to a business friendly regulatory philosophy.

And now, the Trump Administration has issued its first “Unified Agenda of Regulatory and Deregulatory Actions,” and the path to “deconstruction of the administrative state” is clearer.  The spring Unified Regulatory Agenda explains what agencies like OSHA and EPA will undertake on the rulemaking front, and the shift in the Dept. of Labor’s regulatory agenda for rules and standards affecting workplace safety is more pronounced than ever.  The new Regulatory Agenda places a bevy of Obama-era regulatory priorities out in the cold.  Among them, new standards to address infectious diseases in healthcare, various chemical exposures, and other broad-based initiatives have been canceled or placed on the regulatory back burner.

Here’s a breakdown of what Pres. Trump’s first Regulatory Agenda reveals about OSHA’s future plans:

Controversial Rules Off the Table

To the relief of industry advocates who spent years wringing their hands over OSHA’s aggressive rulemaking agenda during the Obama Administration, the new Administration put many of the Agency’s previous plans on ice.  This set of rules will not see further action for years.

For example, a comprehensive rule addressing combustible dust, which has been in the works for nearly a decade, is off the table. This rulemaking was spurred by a recommendation from the U.S. Chemical Safety & Hazard Investigation Board, and was pursued by top officials in the Obama-era OSHA.  The Trump Administration has removed it from the Regulatory Agenda.

Here are some of the higher profile OSHA rulemaking efforts that are now effectively dead in the water: Continue reading

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

On July 11, 2017 attorneys from Conn Maciel Carey’s national Labor & Employment Practice and OSHA Practice, delivered a webinar regarding Joint and Multi-Employer, Independent Contractor, and Temp Worker Employment Law and OSHA Issues.”

Employers’ perceptions about their legal responsibilities for certain workers is not always reality.  Although an employer may classify workers as temporary workers or independent contractors, that does not mean the Department of Labor takes the same view.  At the tail end of the Obama Administration, DOL was vocal about its belief that most workers should be treated as employees, insinuating that in most cases, employers will be accountable for the specific obligations of an employer-employee relationship.  The Trump Administration is moving in the other direction, but a lot of questions remain unanswered or muddled.  DOL has also been cracking down on employee misclassification and division of responsibility among multiple employers. Additionally, employers continue to have certain safety and health related obligations and potential OSHA liability depending on their role at multi-employer worksites or in joint employer situations.

It is essential for employers to carefully evaluate the employment relationship and their own individual function in the multi-employer context.

This webinar covered:

  • Criteria used to evaluate the employer-employee relationship
  • Employers roles on a multi-employer worksite and the specific obligations associated with each role
  • Guidance on how to clearly establish an independent contractor relationship
  • How to lawfully and effectively manage temporary workers at your workplace

Here is a link to a recording of the webinar. Continue reading

“Masters of Disaster” Podcast re: Managing OSHA Compliance in the Trump Administration

In May 2017, Eric J. Conn sat down with Leona Lewis, Founder of ComplyEthic, to discuss the regulatory landscape at OSHA as we transition from Obama to Trump, and what employers should do to successfully navigate the new regulatory landscape, for a new segment on ComplyEthic’s terrific Podcast – “Masters of Disaster.”  Here is a link to the interview on the podcast.

Masters of DisasterThe Podcast segment was entitled “OSHA Regulation Under Trump Administration; What Companies Can Do,” and featured discussion about the differences in priority and approach between Obama’s and Trump’s OSHA, new regulatory strategies that may be available to employers, and what steps employers should take to prepare for and manage the new regulatory environment.

OSHA’s old “Standards Improvement Project” and Trump’s new Efforts to Slash Regulations [Webinar Recording]

On March 28, 2017, Eric J. Conn and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s old “Standards Improvement Project” and Pres. Trump’s new Executive Orders to Slash Regulations.

OSHA initiated a “Standards Improvement Project” (SIP) under the Clinton Admin. to make non-controversial changes to confusing, outdated or duplicative OSHA standards.  There have been a series of SIP rulemakings since, culminating in SIP Phase IV, published by Obama’s OSHA late in 2016, which proposes numerous revisions to existing standards, including a change to OSHA’s Lockout/Tagout (LOTO) standard that is hardly non-controversial.  Specifically, OSHA is attempting to use SIP to undo a judicial interpretation of “unexpected energization” that OSHA does not support; reading “unexpected” right out of the standard.

What Trump’s OSHA does with the LOTO proposal specifically is a mystery, but what is more important is Trump’s recent actions to address the “regulatory state,” which appear to put SIP on steroids.  Trump has long stated that over-regulation is hampering America’s economic growth, and plans for decreasing regulations have been a high priority in his 100-day action plan.  Trump and Congressional Republicans have made heavy use of the obscure “Congressional Review Act” to permanently repeal numerous Obama-era regulations.  The President has also signed a “2-for-1” Executive Order that requires federal agencies to cut two existing regulations for every new regulation they implement, and another Executive Order directing federal agencies to create “regulatory reform” Task Forces to evaluate federal rules and recommend whether to keep, repeal or change them.  Trump intends for these task forces to reduce what it deems expensive or unnecessary rules.  OSHA rules may be on the chopping block.

Participants in this webinar learned about:

  • The origins and intent of the Standards Improvement Project
  • A controversial proposal to remove “unexpected energization” from OSHA’s LOTO Standard
  • Use of the Congressional Review Act to repeal numerous Obama-era regulations
  • Pres. Trump’s executive orders designed to slash regulations
  • Other steps by the Trump Admin. to “Dismantle the Regulatory State”

Here is a link to a recording of the webinarContinue reading

Trump Proposes $2.5B Cut to Dept. of Labor’s Budget and Elimination of Chemical Safety Board

By Kara M. Maciel and Eric J. Conn

The Trump Administration submitted a blueprint budget for 2018 to Congress proposing $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget.  The President’s proposed budget expressly calls for reduced funding for grant programs, job training programs for seniors and disadvantaged youth, and support for international labor efforts.  It also proposes to entirely defund and eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at fixed facilities.  The budget plan also purports to shift more funding responsibility to the states with labor related programs.  Finally, although less explicit, the budget blueprint appears to deliver on promises from Trump’s campaign trail that rulemaking and regulatory enforcement efforts under the myriad laws and regulations enforced by the sub-agencies, such as the Wage and Hour Division and OSHA would be slashed.

These proposed budget cuts at DOL and other agencies are all part of a plan to offset the White House’s intent to increase defense and security spending by $54 billion.  Overall, Trump requested $1.065 Trillion in total discretionary spending, with $603 billion going to Defense.

The proposal would shrink DOL’s budget to $9.6 Billion – down 21% from the $12.2 Billion budget for 2017. Trump’s planned reductions announced on March 16, 2017 – while not really surprising in the context of his view toward federal spending on non-defense agencies – would have a seismic impact on DOL’s ability to carry out both policy initiatives under former President Obama as well as many of the Department’s longstanding programs.

The business community welcomes Trump’s effort to rein in what has been viewed as an intrusive, enforcement-heavy Labor Department, but we caution not to count chickens yet. These proposed cuts will undergo heavy scrutiny by Congress before any budget is finalized. The President’s spending plan is only the first step in months of negotiations between the White House and both houses (and parties) in Congress. Pres. Trump will put forward a more detailed spending proposal in May, and various legislative committees will scrutinize his requests, calling on Cabinet Secretaries, Agency Heads, and others in the Administration to testify about or otherwise explain their spending needs and requests.

Key Takeaways from Trump’s Budget Blueprint

While the administration provided estimates for some of the proposed cuts, it did not specify where the majority of the budget cuts would come from.  What we do know is that the proposed budget would Continue reading

“OSHA’s Midnight Attempt to Overrule Federal Court’s Decision Is Ripe for Rescission” – WLF Article

Washington Legal Foundation just published Eric J. Conn’s “Legal Opinion Letter” article regarding OSHA’s new “Volks Rule” attempting to circumvent the D.C. Circuit ruling limiting OSHA’s statute of limitations for injury and illness recordkeeping violations from 5½ years to six months.

Below is a summary of the article with an update about Congressional action scrutinizing the Rule, and here is a link to the full article.wlf-volks-article

In the waning days of the Obama Administration, OSHA promulgated a new rule purportedly “clarifying” employers’ continuing duty to correct injury and illness recordkeeping logs for the entire five-year period the logs must be kept. See 81 Fed. Reg. 91,792 (Dec. 19, 2016). The final rule, dubbed the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” amended OSHA’s existing recordkeeping regulations in order to circumvent a 2012 decision of the United States Court of Appeals for the District of Columbia in AKM LLC v. Secretary of Labor (Volks II), 675 F.3d 752 (DC Cir. 2012). This “clarifying” rule is unlawful and should be repudiated.

OSHA’s Injury and Illness Recordkeeping regulations require employers to record certain injuries and illnesses within seven days of the incident and also to preserve a copy of those records for five years. 29 C.F.R. Part 1904 et seq. Separately, the Occupational Safety and Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to issue citations alleging violations of regulations adopted under the Act. 29 U.S.C. §§ 651-678. The statute of limitations in the OSH Act states, however, that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).

The article provides a historical look at how OSHA interpreted and enforced its injury and illness recordkeeping regulations Continue reading

Pres. Trump’s Plan B for Secretary of Labor Nominee – Alex Acosta

By Jordan B. Schwartz

President Trump originally chose Andrew Puzder, the CEO of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, as his nominee for Secretary of Labor.Department of Labor  However, on February 15, 2017, one day prior to his much-delayed confirmation hearing, Mr. Puzder withdrew his name from consideration amidst reports that he would not receive the required Senate votes necessary for confirmation.  Mr. Puzder’s nomination was knocked off track by allegations that he failed to pay workers overtime pay, hired an undocumented worker in his home, condoned sexual harassment, and opposed legislative efforts to address those problems.  The next day, President Trump officially tapped former U.S. Attorney Alex Acosta for the position.

If confirmed as Labor Secretary, Mr. Acosta will oversee the federal apparatus that investigates violations of minimum wage, overtime and workplace safety laws and regulations.  Mr. Acosta would also be the first Hispanic member of President Trump’s cabinet.

Mr. Acosta has a strong public service background.  After graduating from Harvard Law School, he clerked for Judge (now Supreme Court Justice) Samuel Alito on the Third Circuit Court of Appeals.  He has also served as a member of the National Labor Relations Board, head of the U.S. Department of Justice’s Civil Rights Division (both of which he was appointed to by President George W. Bush), and U.S. Attorney for the Southern District of Florida.  Most recently, Mr. Acosta served as

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