Join CMC’s Employer Coalition to Work on OSHA’s Inspection Walkaround Rulemaking (Expanding Union Access to Non-Union Workplaces)

September 6, 2023Eric J. Conn Leave a comment

We wanted to reach out to notify you about OSHA’s latest gift to organized labor. Consistent with the Biden Administration’s promise to be “the most labor-friendly administration in history,” last week, OSHA revealed its Notice of Proposed Rulemaking about the “Worker Walkaround Representative Designation Process.” Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is the regulation governing the rights of third parties to participate as employee representatives in OSHA inspections. The NPRM for OSHA’s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces. Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.

History of Union Access to Workplaces During OSHA Inspections

As a reminder, The Obama/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013. The interpretation letter responded to this inquiry by a labor union: “May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

OSHA has an existing regulation at 29 C.F.R. § 1903.8(c) that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking. Here is the existing regulatory text: Continue reading →

White House Clears the Final Amended Electronic Recordkeeping Rule

July 18, 2023August 9, 2023Eric J. Conn Leave a comment

By Eric J. Conn and Daniel C. Deacon

The White House has given final sign-off on OSHA’s Amended Regulation — Improved Tracking of Workplace Injuries and Illnesses (aka the Electronic Recordkeeping or E-Recordkeeping Rule). The Preamble and the Final Rule have been sent to the Federal Register for official publication. The rule package will appear in the Federal Register this Friday (July 21, 2023), but in the meantime, the Administration has posted a pre-publication version of the final rule package. So we now have the final regulatory text, OSHA’s rationale for its final rulemaking decisions, and its analysis of the stakeholder comments about the proposed amended rule. Here’s what we know.

Details About the Final Rule

The final amended E-Recordkeeping Rule will take effect on January 1, 2024. The regulatory text and the Preamble make clear that because this final rule becomes effective before the next E-Recordkeeping submission deadline in 2024, OSHA intends for March 2, 2024 to be the first submission deadline for the new information required to be submitted under this rule.

Unfortunately, OSHA has included each of the proposed changes in the final rule, and even worse, it added in an element that goes beyond what had originally been proposed. As a reminder, the proposed amended rule published by OSHA in March 2022 included three key revisions: Continue reading →

OSHA Launches Enforcement National Emphasis Program Targeting Warehouses, Distribution Centers and High-Risk Retailers

July 14, 2023July 26, 2023Eric J. Conn 2 Comments

By Eric J. Conn and Darius Rohani-Shukla of Conn Maciel Carey LLP’s National OSHA Practice

On July 13, 2023, OSHA announced a new enforcement National Emphasis Program focused on Warehousing and Distribution Center Operations. The new NEP was signed-off by the Head of OSHA a month ago – on June 14, 2023 – so it became effective as of July 13, just as the public was first learning about it. We have combed through the Directive for OSHA’s new Warehouses NEP and identified the following key information that warehouse operators and retailers need to know.

What motivated OSHA to Launch the Warehouses NEP?

Over the last ten years, warehousing and distribution centers have experienced tremendous growth, with the number of estimated employees in that industry nearly tripling from 2011 to 2021. As part of that growth, the injury and illness rate in that space has also dramatically increased. Specifically, OSHA’s perspective is that this NEP is warranted because of Bureau of Labor Statistics (BLS) data that shows that injury and illness rates for the establishments covered by the NEP are significantly higher than the overall industry average. As a result, OSHA’s new Warehouses NEP is tailored to address the hazards in those workplaces that OSHA deems as posing the most safety and health hazards.

The Assistant Secretary of Labor for OSHA, Doug Parker, had this to say about the new Warehouses NEP:

“Our enforcement efforts are designed to do one thing: lead to permanent change in workplace safety. This emphasis program allows OSHA to direct resources to establishments where evidence shows employers must be more intentional in addressing the root causes of worker injuries and align their business practices with the goal to ensure worker health and safety.”

What Employers are covered by this NEP?

This NEP targets warehouse-related industries as identified by seven NAICS codes, as well as a set of “high-injury retail establishments,” as identified by five NAICS codes. Here are the specific warehouse industry segments covered by the NEP:

The so-called “high-injury rate retail establishments” are a subset of the retail industry with particularly high industry average DART rates; i.e., high rates of injuries and illnesses that cause days away from work, restricted duty, or job transfer. They were included because OSHA believes they present the same or similar hazards as warehousing and distribution facilities, particularly in loading and storage areas. Here are the specific retail industry segments covered by this NEP: Continue reading →

10 Reasons Why It Is Critical For Employers To Get OSHA Injury and Illness Recordkeeping and Reporting Right — And How to Ensure It is Done Right

June 16, 2023June 15, 2023Eric J. Conn 1 Comment

By Eric J. Conn and Lindsay A. DiSalvo

Although OSHA injury and illness recordkeeping and reporting has always been important from an OSHA compliance perspective, making correct recording and reporting decisions (i.e., not over- or under- recording or reporting) has never been more vital than it is today. We are at a moment in OSHA’s history when the agency is clearly staffing up and ramping up inspections and enforcement generally, and with respect to injury and illness recordkeeping specifically, OSHA is on the precipice of issuing a significant expansion of the injury and illness data required to be submitted to OSHA each year. Indeed, OSHA sent the final Electronic Recordkeeping Rule to OMB for final review, which is the last step in the rulemaking process before the rule is published.

OSHA developed and repeatedly touted its injury and illness recordkeeping program as a “no fault” system, requiring certain injuries and illnesses to be recorded (or proactively reported to OSHA), regardless whether the employer or its safety program could have prevented the injury. In practice, however, recordkeeping data has become another tool OSHA uses to justify enforcement efforts and actions against specific employers or their industries. From publicizing recordkeeping data to “shame” employers, or using the data to target enforcement resources, OSHA has made it essential for employers not to over-record cases; i.e., they must carefully scrutinize each potential recordable injury or illness, rather than erring on the side of recording every close call. Of course, there are also real and growing enforcement risks for under-recording; i.e., failing to record or report cases that should have been recorded or reported.

Accordingly, it is more important than ever before to make sure your organization fully understands the nuances of OSHA’s recordkeeping and reporting requirements.

Here is our take on the Top 10 reasons it is critical for employers to get OSHA injury and illness recordkeeping and reporting right (not recording or reporting more cases than necessary, and not failing to record or report cases that should be):

1. OSHA’s Electronic Recordkeeping, which puts previously internal data now in OSHA’s hands and on its public website, is about to expanded significantly.

As a result of OSHA’s E-Recordkeeping rule, employers’ injury and illness data is now published on OSHA’s public website. Unfortunately, because OSHA’s injury and illness recordkeeping program was designed to Continue reading →

Eleventh Circuit Vacates OSHA General Duty Clause Citation for Forklift Under-Ride Hazard

June 14, 2023June 16, 2023Eric J. Conn Leave a comment

By Eric J. Conn and Ashley D. Mitchell

On May 30, 2023, the US Court of Appeals for the Eleventh Circuit issued an opinion in the case of Chewy, Inc. v. the US Department of Labor that is very important for US retailers and others who manage warehouses and major forklift operations.

The case involves a May 2019 OSHA citation issued to Chewy, Inc., a pet products online retailer, alleging a violation of the OSH Act’s General Duty Clause for the retailer failing to protect its warehouse employees from an “under-ride” hazard, which occurs when the lowest cross bar of a warehouse storage rack is high enough to allow a forklift to drive underneath, but low enough that upon driving underneath, it can pin the forklift operator between the cross bar and the seat/cab of the forklift. The citation arose out of a December 16, 2018, incident at Chewy’s Ocala, FL warehouse, when a standup forklift operator died by asphyxiation after becoming pinned between the forklift and a metal storage rack. This was the second under-ride incident at Chewy’s warehouse in a six-month period, although the first under-ride incident was not fatal. In the Ocala warehouse, Continue reading →

Third Circuit Applies Narrow Reading of the OSH Act’s Private Right of Action

June 8, 2023June 8, 2023Eric J. Conn Leave a comment

By Megan Shaked and Eric Conn

In a case of first impression, the United States Court of Appeals for the Third Circuit held that a limited private right of action included in the Occupational Safety and Health Act of 1970 (the OSH Act) is very narrow and it does not continue after the Department of Labor completes its enforcement proceedings.

The OSH Act does not provide employees or other interested parties with a private right of action against employers to enforce OSHA standards or OSH Act requirements against employers, but it does, in very limited circumstances, allow employees to sue OSHA for the agency’s failure to address workplace safety concerns under. Historically, employees’ role in OSHA enforcement is just to observe workplace safety violations and lodge anonymous complaints with OSHA, requesting that OSHA conduct an inspection. OSHA then makes its own independent determination whether there are grounds for safety violations; i.e., whether to issue citations.

One area where employees have a slightly more power is in the context of imminent dangers. OSHA has authority under the OSH Act, when it identifies an imminent danger (or is informed of an imminent danger by a whistleblower-employee), to seek injunctive relief to promptly address the danger or stop work at the workplace. In this rare circumstance—where the risk of danger in the workplace is “imminent”—employees can attempt to force their employers’ and OSHA’s hands by Continue reading →

OSHA Expands Its Investigative Authority Under the Whistleblower Protection Program through U and T Visa Certifications

May 4, 2023May 4, 2023Eric J. Conn Leave a comment

By Kara Maciel, Eric J. Conn, and Darius Rohani-Shukla

OSHA has unveiled another tool that will enhance its ability to investigate potential workplace safety violations affecting vulnerable workers who are victims of criminal activity, including sex and labor trafficking. Effective March 30, 2023, OSHA can now issue an important certification used to support two nonimmigrant visas, the U and T visas, that grant individuals immigration status when working with officials during criminal investigations and proceedings. Immigration,Document.,3d,Illustration Both the U visa and T visa were created in 2000 as part of the Victims of Trafficking and Violence Protection Act and are intended to provide undocumented workers or workers whose immigration status depends on their employer with the opportunity to report qualifying criminal activity (QCA) without jeopardizing their immigration status and/or risking retaliation by their employer. Now, OSHA can provide support to the visa applications of workers who bring forward credible allegations of a violation of a law that OSHA enforces, in situations where OSHA has detected specific QCA.

OSHA does not have the authority to issue U and T visas themselves. Rather, these visas are issued by Continue reading →

A Status Update About OSHA’s Rulemaking For a Permanent COVID-19 Rule for Healthcare

April 18, 2023Eric J. Conn Leave a comment

By Eric J. Conn and Beeta B. Lashkari

We wanted to provide a little status report about OSHA’s quiet rulemaking for a permanent COVID-19 Standard for Healthcare. A few weeks ago, at the ABA WOSH Committee Midwinter meeting, multiple senior Department of Labor officials, including Doug Parker (Head of OSHA) and Seema Nanda (the Solicitor of Labor), were asked some pointed questions about the rulemaking. They were all pretty tight-lipped and evasive. We pointed out to the Solicitor of Labor that the very day on which we were talking about the rulemaking was the 90^th day since OSHA had delivered the proposed final rule to the White House’s Office of Management Budget for a “final review.” Pursuant to Executive Order 12866, a proposed final rule generally cannot remain at OMB for longer than 90 days unless the regulating agency (in this case, OSHA) requests an extension of the review period. The Solicitor of Labor was asked if the Department of Labor or OSHA had already or was intending to seek such an extension, or whether the agency had decided to withdraw the proposed final rule in light of the changing circumstances of the pandemic and President Biden’s withdrawal of the emergency declaration. She sidestepped the question, stating that OMB can extend the review period at least another 30 days without any formal action by the Department of Labor, but would not say what OMB’s or OSHA’s plans were for the rule.

The one-time, automatic 30-day extension of OMB’s 90-day review period is consistent with our understanding too. See the excerpt below from OMB OIRA FAQs: Continue reading →

OSHA Delivers Proposed Final (Amended) Electronic Recordkeeping Rule to the White House

April 13, 2023Eric J. Conn 1 Comment

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

We have an update to share about OSHA’s rulemaking to expand its regulation to “Improve Tracking of Workplace Injuries and Illnesses” (known better as the Electronic Recordkeeping or E-Recordkeeping Rule). Late last week, OSHA delivered to the White House’s Office of Management and Budget (OMB) a proposed Final (Amended) E-Recordkeeping Rule for review by the Administration’s economists and policy experts. OMB’s website reflects that, as of April 7, 2023, OMB:

Has received a proposed E-Recordkeeping Rule from OSHA; and
The rule is in the “Final Rule” stage.

As we indicated a few weeks ago, OSHA’s latest target date to issue the rule is June of this year, and getting the proposed final rule to OMB last week lines up well with that target. The submission of the proposed rule to OMB means OSHA is at the goal line; just one step away from finalizing a rule that more closely resembles the agency’s original intent and broad scope of the E-Recordkeeping Rule when it was promulgated in 2016 under the Obama Administration.

The original E-Recordkeeping Rule would have had larger employers submitting to OSHA annually the data from their full panoply of injury and illness recordkeeping forms (the 300 Logs, 301 incident reports, and 300A Annual Summaries), and smaller employers in certain “high hazard industries” submitting only the 300A Annual Summary data. Before ever collecting the more detailed level data from 300 Logs and 301 Incident Reports, former President Trump’s OSHA rolled back the more onerous requirements, such that no matter the employer’s size, if you were covered by the rule, you submitted only 300A Annual Summary date.

OSHA was sued by organizations representing labor alleging that Continue reading →

OSHA Initiates Rulemaking to Revive Union Participation in OSHA Inspections at Non-Union Workplaces

March 17, 2023Eric J. Conn Leave a comment

By Aaron Gelb, Eric Conn, and Ashley Mitchell

Consistent with the Biden Administration’s promise to be “the most labor friendly administration” in history,” OSHA recently announced plans to publish a notice of proposed rulemaking (“NPRM”), as early as this Spring, to amend 29 CFR 1903.8(c), which is the regulation governing the rights to participate in OSHA inspections by non-employees of the inspected employer.

OSHA-savvy employers may remember that OSHA tried during the Obama/Biden Administration to give union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013, commonly referred to as “the Fairfax Memo.” The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

The question must be considered in the context of the existing regulatory text of 29 C.F.R. 1903.8(c):

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

Notwithstanding a pretty clear regulatory limitation to third party inspection participation rights, OSHA’s responded to the unions interpretation request in the affirmative, explaining that notwithstanding: Continue reading →

OSHA Expands “Instance by Instance” Citation Policy: A Game Changer for OSHA Enforcement

February 6, 2023February 6, 2023Eric J. Conn Leave a comment

By Eric J. Conn and Darius Rohani-Shukla

On January 26, 2023, OSHA revealed to the public two enforcement memoranda that it had issued to its field offices and all of the State OSH Plans that will substantially sharpen OSHA’s enforcement teeth and increase the pain OSHA can inflict on employers across the country. Specifically, OSHA dramatically expanded the circumstances when it can issue “instance-by-instance” citations to employers, and also discouraged the grouping of similar citations under a single penalty.

Instance-by-Instance (IBI), or per-instance enforcement is one of OSHA’s most powerful tools to ratchet up civil penalties. It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties; i.e., train each employee, guard each machine, require a hard hat for each employee, etc. As a result, rather than a single citation with a single penalty for an employers’ failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.

Historical Per-Instance Enforcement

OSHA’s IBI enforcement policy was first memorialized in 1990 in an enforcement directive called “Handling of Cases to be Proposed for Violation-By-Violation Penalties.” This policy came to be known as OSHA’s Egregious Enforcement Policy because OSHA’s policy was to use it only in circumstances involving conduct found by OSHA to be worse than just willful. Specifically, under this long-standing willful-plus standard, OSHA issued per-instance citations when violations were found both to be willful and also to meet one of the following criteria: Continue reading →

Timing for OSHA to Finalize the Amended E-Recordkeeping Rule Is Becoming More Clear

February 2, 2023February 1, 2023Eric J. Conn 1 Comment

By Dan C. Deacon and Eric J. Conn

We have a quick update for you about OSHA’s rulemaking to expand the Electronic Recordkeeping Rule. Throughout the last year, OSHA’s intent to finalize this rule ahead of the next deadline for employers to submit E-Recordkeeping data (i.e., well ahead of March 2023) was clear, but that will not be the case. OSHA delayed finalizing the proposed revisions to the E-Recordkeeping Rule several times. The delays have now prompted further litigation by a pro-worker activist group in furtherance of a challenge initiated during the Trump Administration to the rollback of the E-Recordkeeping rule by Trump’s OSHA early in his term.

The challenging groups are resuming their 2019 lawsuit (State of New Jersey, et al., v. Walsh) because the Biden Administration recently moved its target date for finalizing the updated rule from pre-March 2023 to June 2023, arguing that OSHA’s “pattern of reneging on its agreements” means litigation is the only sure path to resolve their claims. OSHA had previously signaled that the rule would be finalized by March 2023 in its Fall 2022 regulatory agenda, but OSHA’s counsel recently informed the petitioners and the Court that OSHA would not make that commitment by at least three months. A short time later, the petitioners filed a couple of briefs with the U.S. Court of Appeals for the District of Columbia Circuit earlier this month (on January 11^th and 12^th), asking the DC Circuit to bring the case out of abeyance and set a quick schedule. The petitions brief requesting to revive the case under a scheduling order notes that Continue reading →

OSHA’s Heat Illness Rulemaking – NACOSH Meeting and Next Steps

January 27, 2023January 26, 2023Eric J. Conn 1 Comment

By Eric J. Conn and Beeta B. Lashkari

As we mentioned in our last update from December, OSHA continues to move swiftly on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings. We attended the National Advisory Committee on Occupational Safety and Health (“NACOSH”) committee meeting on January 10^th, where the Committee primarily addressed recommendations and updates from NACOSH’s Heat Injury and Illness Prevention Work Group (“Work Group”), and wanted to provide you this update.

As a reminder, the NACOSH Work Group was split into two sub-groups – one addressing Task 1 of the Charge to the Work Group (evaluating and providing input and recommendations for compliance assistance materials about heat illness prevention), and the other sub-group addressing Task 2 (developing key recommendations on potential elements of a Heat Injury and Illness Prevention Standard for OSHA to consider). As expected, only the sub-group addressing Task 1 (“Compliance Assistance Work Group”) delivered its recommendations to the full NACOSH committee during the January 10^th meeting. The sub-group addressing Task 2 (“Rulemaking Work Group”) – which is the sub-group more important to our Coalition – reiterated that it is still in the process of developing recommendations, to which OSHA responded with some strong words. More on that below.

To start, the Compliance Assistance Work Group presented its findings and recommendations to the full NACOSH Committee, which the Committee approved unanimously without changes. Four of the ten recommendations aim to improve OSHA’s guidance on heat dangers, urging the agency to: Continue reading →

Join CMC’s Coalition to Combat the FTC’s Ban of Noncompete Agreements

January 20, 2023Eric J. Conn Leave a comment

Earlier this month, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, as well as with independent contractors, interns, volunteers, and other types of workers. The proposed rule would require employers to withdraw any existing noncompete agreements and inform employees that noncompete agreements no longer apply. The proposed rule would also make it unlawful for an employer to enter into a noncompete agreement with an employee, to attempt to enter into such an agreement with an employee, or to suggest that an employee is bound by a noncompete agreement when the employee is not.

While the FTC may justify this proposed rule as necessary to allow workers to move freely without restrictions, we believe that this rule, if passed, would severely compromise a company’s ability protect its trade secrets and other confidential information, and could negate a company’s significant investment in valuable investments in its employees, including employee training. Indeed, there are countless reasons why a narrowly tailored noncompete agreement is a necessary tool that has been, and should continue to be, in an employer’s arsenal to protect its significant investment in its employees and the information to which they are privy.

The rule is currently open for comment. To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to advocate for the most reasonable FTC rule possible, with the goal of helping to shape any rule that the FTC ultimately promulgates in such a way that the rule is palatable to employers. Continue reading →

OSHA’s Permanent COVID-19 Rule for Healthcare – OIRA Meetings and Next Steps

January 19, 2023January 19, 2023Eric J. Conn Leave a comment

By Eric J. Conn and Beeta B. Lashkari

Per our update last month, on December 8, 2022, OSHA delivered to the White House’s Office of Management and Budget (OMB) a proposed final rule for “Occupational Exposure to COVID-19 in Healthcare Settings.” On behalf of our Employers COVID-19 Prevention Coalition, we secured three stakeholder meetings with the Office of Information and Regulatory Affairs (OIRA) within OMB for the three industry segments in the coalition most likely to be affected by the rule:

- Construction / Maintenance: Tuesday, January 3^rd
- Retailers / Retail Pharmacies: Wednesday, January 4^th
- Manufacturers w/ Medical Clinics: Thursday, January 5^th

Below is a report out from those meetings with OIRA and a discussion about what we think is going to happen next and when.

The meetings were hosted by a Deputy Branch Chief at OIRA with participation by representatives from OMB/OIRA, DOL, DOL’s Office of the Solicitor, SBA’s Office of Advocacy, as well as OSHA’s Directorate of Standards and Guidance, Office of Engineering Safety, Office of Physical Hazards, Office of Chemical Hazards, and Office of Regulatory Analysis.

On behalf of our Employers COVID-19 Prevention Coalition, we had representatives from the National Electrical Contractors Association (NECA) for the Construction / Maintenance industry segment, the Retail Industry Leaders Association and the National Association of Chain Drug Stores for the Retail Pharmacy industry segment, and the American Chemistry Council for Manufacturers with On-site Medical Clinics.

Here are the official records on OIRA’s website about our meetings: Continue reading →

OSHA’s Heat Illness Rulemaking – Recent NACOSH Work Group Meeting

December 21, 2022December 21, 2022Eric J. Conn 1 Comment

By Beeta B. Lashkari and Eric J. Conn

With the winter holidays upon us, heat illness may not be front and center on your minds, but OSHA continues to be push full steam ahead on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings, so we wanted to provide you a quick update.

In September, OSHA had drafted but not yet released a summary document of all of the 1,078 comments the agency had received in response to the ANPRM. That summary document is now publicly available, posted on December 16, 2022 on the National Advisory Committee on Occupational Safety and Health (“NACOSH”) docket for its Heat Injury and Illness Prevention Work Group. Below are some highlights from the summary document.

Notably, our Coalition’s written comments were referenced 14 times in the summary document, including for the following propositions: Continue reading →

Announcing Conn Maciel Carey LLP’s 2023 OSHA Webinar Series!

December 16, 2022December 16, 2022Eric J. Conn Leave a comment

ANNOUNCING CONN MACIEL CAREY LLP’S
2023 OSHA WEBINAR SERIES

Two years into the Biden Administration, with senior political leadership now firmly entrenched at federal OSHA, the agency is making good on its promise to “use all of the tools available” in its regulatory and enforcement toolbox to protect workers. In part, that has taken the form of increasingly aggressive enforcement (more inspections, more significant penalties, etc.), hiring more compliance officers, launching new special emphasis enforcement programs, and expanding its enforcement policies like its Severe Violator Enforcement Program. It has also taken the form of a broad-based rulemaking agenda that includes work on a new heat illness rule, pushing out a permanent COVID-19 standard for healthcare, expanding its E-Recordkeeping requirements, among other high priority rulemakings.

Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA. To help you do so, Conn Maciel Carey LLP is pleased to present our complimentary 2023 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-specialist attorneys in the firm’s national OSHA Practice Group. The webinar series is designed to arm employers with the insight into developments at OSHA that they need during this period of unpredictability and significant change.

To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2023 series, click here to send us an email request so we can get you registered. If you missed any of our programs over the past eight years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings. If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.

2022 Year in Review and 2023 Forecast

Thursday, January 26th

Mid–Year Review of OSHA Developments

Thursday, July 20^th

Annual Cal/OSHA Update

Thursday, February 16^th

OSH State Plan Update

Thursday, August 10^th

Responding to Whistleblower Complaints

Tuesday, March 21^st

Powered Industrial Trucks

Thursday, September 14^th

Repeat, Willful, Egregious and SVEP

Thursday, April 13^th

Investigations and Audit Reports

Thursday, October 5^th

OSHA Rulemaking Update

Thursday, May 18^th

OSHA’s PSM Standard & EPA’s RMP Rule

Tuesday, November 14^th

Preparing for OSHA Inspections

Thursday, June 8^th

Combustible Dust

Thursday, December 7^th

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

Continue reading →

OSHA’s Proposed Permanent COVID-19 Standard for Healthcare Nears the Finish Line

December 12, 2022December 11, 2022Eric J. Conn 11 Comments

Conn Maciel Carey’s COVID-19 Task Force

Thankfully, it has been quite a while since our last COVID-19 rulemaking update.

As you will recall, OSHA reopened its rulemaking record for the COVID-19 Rule for Healthcare on March 22, 2022, and then on April 22^nd, we submitted three sets of written comments on behalf of the Employers COVID-19 Prevention Coalition regarding issues facing: (1) retailers and retail pharmacies; (2) addressing embedded medical clinics and emergency response teams for manufacturers and other industrial worksites; and (3) addressing construction issues at healthcare workplaces. We participated in OSHA’s Public Hearing for the rulemaking, held on April 27^th – May 2^nd, and then submitted two additional sets of post-hearing comments on May 23^rd. Then basically nothing happened.

We were beginning to think that OSHA had abandoned the rulemaking for a permanent COVID-19 Standard for Healthcare. But we now have some significant news to share. Last week, on December 8^th, the Office of Management and Budget (OMB) updated its website to reflect that it officially has OSHA’s “Occupational Exposure to COVID-19 in Healthcare Settings” Standard “under review.”

The website reflects that OMB received the proposed final rule from OSHA on December 7^th. Here is a link to the page for this rulemaking and below is all the relevant information reflected on OMB’s website: Continue reading →

Biden Administration Signals that the Federal Contractor Vaccine Mandate May Go Into Effect, But Not Yet

October 25, 2022Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, October 14^th, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force (Task Force) issued some “clarifications” about the expected next steps for Executive Order 14042 – the federal contractor vaccine mandate – now that the longstanding nationwide injunction restricting enforcement of the E.O. has been narrowed by order of the Eleventh Circuit. That narrowing (to just the six States that were named parties to the legal challenge in Georgia v. Biden) took effect on October 18^th. OMB and the Task Force suggested that we would see at least three new guidance documents now that the injunction is narrowed, including:

1. OMB would give notice to federal agencies about compliance with applicable injunctions, and also whether, where and when the new clause implementing Executive Order 14042 should be included in new solicitations and contracts.
2. The Safer Federal Workforce Task Force would update its COVID-19 guidance for covered contractor workplaces, including a timeline for implementation. Last week’s clarification specified that this “updated guidance [by the Task Force] will be issued following development and review by the Task Force, subject to the OMB Director’s approval and determination published in the Federal Register that the updated guidance promotes economy and efficiency in Federal contracting, in accordance with Executive Order 14042.”
3. After the updated Task Force guidance issues, and if the OMB Director makes a determination that implementation of the E.O. in some form continues to promote economy and efficiency in federal contracting , then OMB would provide additional guidance to agencies on timing and considerations for provision of written notice from agencies to contractors regarding enforcement.

On October 19^th (the day after the 11^th Circuit’s narrowing of the nationwide injunction took effect), OMB did issue one of the notices we were expecting. Continue reading →

OSHA Updates Its Severe Violator Enforcement Program to Sweep In Exponentially More Employers

September 16, 2022October 1, 2022Eric J. Conn 3 Comments

By Eric J. Conn and Ashley D. Mitchell

On September 15, 2022, OSHA announced a significant set of updates to its dreaded Severe Violator Enforcement Program (“SVEP”), the first update to the program in over a decade. In a Press Release accompanying the update, Doug Parker, the Assistant Secretary of Labor for OSHA, explained:

The Severe Violator Enforcement Program empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards . . . . Today’s expanded criteria reflect the Biden-Harris administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.

Two of the three SVEP-qualifying criteria have not changed, and they are:

Fatality/Catastrophe Criterion – A fatality/catastrophe inspection where OSHA finds at least one willful or repeated violation or issues a failure-to-abate notice based on a serious violation directly related either to an employee death or three or more employee hospitalizations.
Egregious Criterion – All egregious enforcement actions (i.e., per-instance citations).

But historically, the principal way that employers “qualified” into SVEP was by enforcement actions that included 2+ willful or repeat violations related to a particular set of standards that represented “high emphasis hazards.” Indeed, that criteria has accounted for more than 70% of all SVEP-qualifying citations. Those “high emphasis hazards” essentially reflected the subjects of OSHA’s active enforcement National Emphasis Programs, including:

Fall Hazards in all industries
Amputation Hazards covered by Lockout/Tagout and Machine Guarding standards
Combustible Dust Hazards
Crystalline Silica Hazards
Lead Hazards
Grain Handling Hazards
Excavation/Trenching Hazards

The most important change in the updated SVEP is that Continue reading →

New Twist in the Federal Contractor COVID-19 Vaccine-Mandate Saga

August 29, 2022Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

In case anyone has forgotten, there are still a few COVID-19 vaccine mandates out there that the Supreme Court has not struck down. There are the federal employee and military vaccine mandates, and for private employers, the federal contractor vaccine-mandate. The federal contractor mandate arose from Pres. Biden’s Executive Order 14042, which directed executive agencies to include a clause in procurement agreements requiring employees who work on or in connection with a covered federal contract, or who even share a workplace with another employee who does, to be fully vaccinated against COVID-19.

You may have forgotten about that federal contractor vaccine mandate because that requirement has been the subject of nationwide temporary injunction for the last nine months, following a decision in December 2021 by a federal district court judge in Georgie in a legal challenge captioned Georgia v. Biden, one of several legal challenges to the Biden Administration’s authority to mandate the COVID-19 vaccine through the 1949 Federal Property and Administrative Services Act (aka the Procurement Act). The district court judge in Georgia v. Biden entered a nationwide preliminary injunction after concluding that the plaintiff States and one trade association were likely to prevail on their assertion that the mandate was outside the scope of the Procurement Act. The judge ordered the federal government not to enforce the mandate in any covered agreement, and several other federal courts have also imposed other, though narrower, restrictions on EO 14042. Since then, the Administration has shelved the vaccine requirement for federal contractors.

A lot of water has also passed under the bridge since that time, and the COVID-19 landscape has changed pretty significantly. Most notably, the CDC recently updated its COVID-19 guidance in several ways, but most relevant to the federal contractor vaccine mandate, the CDC now no longer distinguishes between vaccinated and unvaccinated individuals for how COVID-19 controls should apply. For example, quarantine and isolation requirements are perfectly aligned for fully vaccinated, partially vaccinated, and completely unvaccinated individuals. The rationale for the new relaxed guidance from Pres. Biden’s CDC is that there are now “so many tools available to use for reducing COVID-19 severity, [so] there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.” That rationale would seemingly undermine the original purpose of the federal contractor vaccine mandate – ensuring “economy and efficiency” of the federal procurement system by ensuring the health of the contracting workforce.

Nevertheless, the Administration has continued to defend the federal contractor vaccine mandate as the legal challenges to EO 14042 have moved through the court system. The latest development in that litigation came in yet another Friday night COVID-19 surprise, Continue reading →

What Employers Need To Know About the Latest Public Health Crisis – The Monkeypox Virus

August 22, 2022August 22, 2022Eric J. Conn 1 Comment

By Eric J. Conn and Ashley D. Mitchell

After the last couple of years living with COVID-19, we were desperately hoping that we would not have to be talking, thinking or writing about the Monkeypox Virus (“MPV”) as a workplace safety and health issue. And while Monkeypox does NOT appear to be a COVID-19 redux, we have been getting enough questions from our clients that it now seems unavoidable that we have to dig into this. Alas, here is our first take on Monkeypox – what is it, what are the symptoms and modes of transmission, how is it similar to and different from COVID-19, and what should employers be thinking about and doing in connection with this latest plague.

The Monkeypox Virus (MPV):

Monkeypox is a zoonotic diseases, which means it is caused by a virus that is passed between animals & people. MPV was first detected in 1958 in a colony of research monkeys in Central and West Africa, and the first human case of Monkeypox was recorded in 1970. The virus that causes Monkeypox is in the same family as the virus that causes smallpox, and they involve similar, but less severe symptoms in the case of MPV.

The current Monkeypox outbreak is unique in that prior to 2022, Monkeypox cases were extremely rare in the U.S., and cases in individuals outside of Africa, where the virus commonly occurs, were almost always linked to international travel. In mid-May of this year, the first cases associated with the current outbreak were identified in the U.S., and it is clearly spreading now among non-travelers. On July 23^rd, the World Health Organization (WHO) declared Monkeypox a Public Health Emergency of International Concern (PHEIC). By late July, the U.S. surpassed 10,000 total cases. Continue reading →

Update on the Timeline for OSHA to Finalize the Permanent COVID Rule for Healthcare

August 5, 2022Eric J. Conn 2 Comments

It’s been a while since our last update about OSHA’s rulemaking for the permanent COVID-19 rule for healthcare, which is very good news. It was always a possibility that by the time OSHA got around to finalizing and issuing its permanent COVID-19 regulation that the pandemic would be in such a state that it would not make any practical, health, or political sense to actually issue the rule. But that does not appear to be OSHA’s thinking right now, or the thinking of the DC Circuit and the nurses unions that continue to push OSHA to finalize the rule.

According to a sworn statement by Assistant Secretary of Labor for OSHA Doug Parker on July 25, 2022, OSHA remains “on track” to complete its long-term COVID-19 safety healthcare standard in September to October of 2022. This is consistent with OSHA’s January 2022 statement that it intended to develop a permanent COVID-19 standard for healthcare workers within six to nine months.

Assistant Secretary Parker’s statement appears to be a reaction to inconsistent testimony from Secretary of Labor Marty Walsh before the Senate Appropriations Committee on June 15, 2022. There, Secretary Walsh testified that OSHA would finalize the standard in three to six months, which sounded like a shift in OSHA’s target issuance date to later in the year or even next year. Continue reading →

The Employers E-Recordkeeping Coalition Submits Comprehensive Written Comments to OSHA’s E-Recordkeeping Rulemaking Docket

July 25, 2022Eric J. Conn Leave a comment

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

On March 30^th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its “Improve Tracking of Workplace Injuries and Illnesses Rule” (aka, the E-Recordkeeping Rule). We digested the tortured history of OSHA’s E-Recordkeeping Rule, the proposed amendments OSHA introduced this Spring, and the implications of the proposed changes in this article.

Conn Maciel Carey’s OSHA Team organized a flat fee-based E-Recordkeeping Rulemaking Coalition of employers and trade groups to collaborate to submit public comments on this proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule. The first major step taken by our Employers E-Recordkeeping Coalition was to submit a comprehensive set of written comments to OSHA’s rulemaking record on June 30^th. Here is a copy of our as-filed comments.

To summarize, we addressed in the comments that: Continue reading →

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

June 21, 2022Eric J. Conn Leave a comment

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

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

Here is a summary of his observations.

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