Author: Kate M. McMahon

The Intersection of EPA’s New TSCA Chemical Exposure Limits and OSHA Enforcement of Workplace Chemical Exposure – Employers Better Look Both Ways

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By Kate M. McMahon and Darius Rohani-Shukla

This is the OSHA Defense Report blog, but today we are blogging about the Environmental Protection Agency’s TSCA regulations.  What do EPA’s TSCA regulation have to do with OSHA and workplace safety?  More specifically, what impact might EPA’s actions under TSCA have on OSHA’s enforcement landscape? Read further to find out what is happening that causes us to be writing about EPA and TSCA!

Over the last year, the Environmental Protection Agency (EPA) has taken several actions under the Toxic Substances Control Act (TSCA) demonstrating the agency’s avid interest in regulating chemicals in the workplace, an area traditionally considered within the jurisdictional authority and purview of this Blog’s beloved agency, OSHA.  EPA seems to be stretching its statutory authority under TSCA to muscle its way into a preeminent role in workplace safety and effectively leapfrog over OSHA in setting more stringent limits than OSHA has established with its Table Z limits for air contaminants in the workplace, found primarily at 29 CFR 1910.1000.  In fact, EPA is now proposing to Continue reading →

Everything You Need to Know About OSHA’s Health and Chemical Exposure Standards [Webinar Recording]

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On October 22nd, Kate McMahon, Amanda Walker, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding “Everything You Need to Know about OSHA’s Health and Chemical Exposure Standards.”

In addition to OSHA’s myriad Safety regulations, the agency has also promulgated approx. 30 comprehensive Health standards, and established air exposure limitations for an additional 500 common chemicals present in U.S. workplaces, such as asbestos, lead, and silica.  Knowing when and how to conduct monitoring is complex, and the chemical sampling data collected can be a double-edged sword.  This webinar helped employers understand and comply with the requirements of OSHA’s occupational health standards, provided useful guidance and tips on the types and frequency of air monitoring or other chemical sampling that may be required at your facilities, and the programs to implement if you do experience exposure levels above the minimum regulatory thresholds (or other industry consensus thresholds). 

Specifically, participants in this webinar will learned about: Continue reading →

It’s a Bird.  It’s a Plane.  It’s… an OSHA Inspection Drone?

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By Eric J. Conn and Kate McMahon

We have for several years now heard about our military’s and intelligence agencies’ use of unmanned drones to conduct secret surveillance of our geopolitical adversaries and terrorists across the globe.  We may even take comfort in the use of these high-tech mobile video cameras hovering above a terrorist hide-out to foil a plot against our country.  What may be less comforting to employers in the U.S., however, is that OSHA seems to have borrowed the playbook from our spy agencies to assist their inspectors in conducting inspections of U.S. workplaces.

OSHA’s Drone Policy Memo

On May 18, 2018, OSHA issued an internal policy memorandum to its field offices, announcing that it has begun using Unmanned Aircraft Systems, commonly referred to as drones, to assist with worksite enforcement inspections, as well as for technical assistance and training purposes.  For now, OSHA’s new drone policy requires “express consent from the employer” before a drone is deployed in an inspection, but that limitation is simply a policy decision that can change with the political winds blowing in Washington, DC, or ignored by the agency without explanation as we recently saw with OSHA’s “Look Back” policy for issuing Repeat citations.

OSHA’s drone policy memorandum, entitled “OSHA’s Use of Unmanned Aircraft Systems in Inspections,” expressed that the purpose of drone inspections is to assist OSHA compliance officers gather information at worksites that may otherwise be difficult or dangerous to inspect from the ground.  The drone memo sets forth Continue reading →

New OSHA Silica and Beryllium Standards: Update on OSHA Chemical Rulemaking [Webinar Recordkeeping]

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On April 17, 2018, Kate McMahon and Nick Scala, of the national Workplace Safety Practice at Conn Maciel Carey, presented a webinar: “New Silica and Beryllium Standards: Update on OSHA Chemical Rulemaking.”

OSHA’s struggles to reform its chemical exposure limits continue with the rocky roll-out of its two newest occupational exposure standards – Silica and Beryllium.  Both standards have faced legal challenges, but will survive in some form resulting in a full panoply of new obligations, including significant reductions in the allowable exposure levels to these chemicals, and a comprehensive set of ancillary requirements, such as housekeeping, hygiene, medical surveillance, recordkeeping, workplace signage, training, etc.

MSHA, even without its own Silica Standard on the books, has adopted some elements of the hierarchy of controls fundamental to OSHA chemical standards. MSHA also conducts exposure monitoring at least annually for respirable silica, and rigorously enforces silica exposure issues.  “Me too” Silica and Beryllium standards for the mining industry may also be in the offing.

Participants in this webinar learned about: Continue reading →

Who is the New DOL Leadership Team Impacting OSHA Law? [Webinar Recording]

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On March 20, 2018, Kate McMahon and Amanda Strainis-Walker, of the national OSHA Practice Group at Conn Maciel Carey, presented a webinar: “Who is the New DOL Leadership Team Impacting OSH Law?”

Pres. Obama’s Secretary of Labor, Assistant Secretary of Labor for OSHA, and the rest of his political Leadership Team at the Department of Labor turned over the keys to the Trump Administration.  The Trump Administration has now installed, or at least announced, its own OSHA and OSHRC Leadership Team, and the backgrounds and regulatory philosophies between the outgoing and new decision makers and policymakers could not be more different.

During this webinar, participants learned about the new appointees who have taken (or should soon take) the reins at OSHA, and how this new Leadership Team will affect OSHA enforcement and rulemaking.  We also reviewed other personnel changes at OSHA and OSHRC that will impact the regulatory landscape for employers.

Click here to register to view and listen to a recording of the webinar. Continue reading →

OSHA Interpretations and Variances: Regulatory Strategies Revived in a Trump Admin. [Webinar Recording]

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On June 6, 2017, Eric J. Conn and Kate M. McMahon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA Interpretations and Variances: Regulatory Strategies Resurrected in a Trump Administration.“

A new world order has taken hold in Washington, DC, and with it, we expect OSHA to be much more open to employers’ views about the regulatory landscape. Employers may now have an opportunity to obtain favorable OSHA interpretations of existing regulations, and historically rare Variances.

This webinar reviewed the regulatory strategies that had been effectively foreclosed during the Obama Administration, but which may now reemerge, allowing employers to craft practical solutions to regulatory burdens while continuing to keep workers safe.

Participants in this webinar learned about the following:

  • The process OSHA follows to develop and issue letters of interpretation of its regulations and how to influence that process
  • Strategies for advanced groundwork to maximize the likelihood of favorable regulatory interpretations
  • How and when to apply for and obtain regulatory variances
  • How to insulate your company from legal exposure when engaging with OSHA about regulatory interpretations and variances

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

OSHA’s Slips, Trips and Falls Rule Gets a Facelift [Webinar Recording]

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On February 8, 2017, Kate M. McMahon and Micah Smith, from Conn Maciel Carey’s national OSHA Practice Group, delivered a webinar entitled: “OSHA’s Slips, Trips and Falls Rule Gets a Facelift.”wws-cover-slide

Only a few decades in the making, OSHA has finally updated its Walking / Working Surfaces Standard, the regulation that governs slips, trips and fall hazards in general industry.  Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S.  The new final rule attempts to modernize OSHA’s regulations to prevent fall hazards based on advances in fall protection technologies and methods.

Participants in this webinar learned:
  • The new requirements for managing slip, trip and fall hazards in general industry
  • New criteria for fall protection equipment and ladder safety
  • Effective dates for the new Walking / Working Surfaces Standard
Here is a link to a recording of the webinar.
This was the second webinar in Conn Maciel Carey’s 2017 OSHA Webinar Series.  Plan to join us for the remaining complimentary monthly OSHA webinars. Continue reading →

New GHS Hazard Communication Standard: Roll-out Issues [Webinar Recording]

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On Wednesday, May 11, 2016, Kathryn M. McMahon and Dan C. Deacon of Conn Macial Carey’s national OSHA Practice Group presented a webinar regarding the final roll-out of OSHA’s new GHS Hazard Communication Standard as part of the Firm’s 2016 OSHA Webinar Series.

Perhaps the most significant safety related regulatory reform during the Obama Administration has been the amended Hazard Communication Standard, bringing OSHA’s chemical Right-to-Know regulation more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).  The new GHS HazCom standard fundamentally changes how employers must classify chemicals in the workplace, and requires all new chemical labels and Safety Data Sheets (formerly MSDSs).

The new GHS HazCom Standard had a seemingly long roll-out period, but time has flown by, and many of the key deadlines under the new rule have already past, and the final deadlines are now upon us.

This webinar explained the new Hazard Communication standard, identified some of the key issues with the new HazCom rule that have surfaced during the roll-out, and explained what employers need to do to come into compliance.  Participants learned about the following:

  •  Background about OSHA’s new GHS Hazard Communication Standard
  • Important elements of the new rule that employers need to know
  • Key implementation deadlines and enforcement deferrals
  • Developing issues uncovered during the roll-out of the new rule
  • Best practices for coming into compliance with the new GHS HazCom Standard

Click here to view a recording of the webinar.

Continue reading →

OSHA Unveils Controversial Final Silica Rule and Industry Gears Up For Challenges

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By Kate M. McMahon and Eric J. Conn

OSHA has issued its long-sought – and heavily disputed – new regulation aimed at reducing worker exposures to crystalline silica dust, cutting the Permissible Exposure Limit (PEL) in half for general industry, construction and maritime activities.

Office of Management and Budget (OMB) officials on March 21, 2016 cleared the rule, essentially green lighting  OSHA to move forward. With this regulation long represented as a top priority for OSHA, Assistant Secretary of Labor David Michaels took no time doing so, issuing the final rule only days after Silica Rule Image 2the White House gatekeeper OMB cleared it back to OSHA. Dr. Michaels said in the press release accompanying the rule that the existing limits on Silica dust are “outdated,” and added that limiting exposure to silica dust is essential.

“Every year, many exposed workers not only lose their ability to work, but also to breathe. Today, we are taking action to bring worker protections into the 21st century in ways that are feasible and economical for employers to implement.”

The soon-to-be-published final rule – effective 90 days from its imminent publication in the Federal Register – cuts the exposure limit on respirable crystalline silica in half for general industry, construction and maritime,Silica Rule Image making the new PEL 50 micrograms per cubic meter (50 µg/m³) of air, on a time-weighted average of exposure across the work day. The PEL, which is the core provision of the rule, was controversial enough considering the little return Industry sees from the reduction, as compared to the economic and technical difficulties involved. However, the new regulation also includes an “action level,” set at 25 µg/m³, which automatically triggers numerous ancillary requirements ranging from exposure controls to medical surveillance. OSHA justifies this action level because many workplace health experts believe that Continue reading →

OSHA Criminal Cases on the Rise

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By: Eric J. Conn and Kate M. McMahon

In the forty plus years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than eighty total OSH Act criminal cases have been prosecuted – fewer than two per year – and only approximately a dozen have resulted in criminal convictions. Historically, the prosecutions typically have targeted cases in which the employers were alleged to have falsified documents and lied to OSHA in conjunction with underlying regulatory violations relating to an employee fatality. In other words, the “cover-up,” so to speak, was worse than the crime. Chronic violators and employers who demonstrated a systematic rejection of worker safety laws also were more likely to face charges.

One primary reason that historically so few criminal cases have been pursued under the Occupational Safety and Health Act (“OSH Act”)OSH Criminal 3 is that it is challenging to prove a criminal violation under the Act. Combine that with the fact that, even with a conviction, the consequences are less significant than the consequences for many other white collar crimes and you end of with a situation where the criminal provision of the OSH Act is rarely employed.

Here is how it works. Section 17(e) states:

“Any employer who willfully violates any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of any regulations proscribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both.”

Pursuant to the Sentencing Reform Act of 1984, 18 USC § 3551 et seq., which standardized penalties and sentences for federal offenses, the criminal penalty for willful violations of the OSH Act causing loss of human life was amended to be punishable by fines up to $250,000 for individuals (18 U.S.C. Sec. 3574(b)(4)), and $500,000 for organizations (id. at Sec. 574(c)(4)).

Accordingly, if an employer’s willful violation of an OSHA standard causes the death of an employee, Continue reading →

A Healthy Dose of OSHA Enforcement Coming to the Healthcare Industry

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By Eric J. Conn and Kathryn M. McMahon

On June 25, 2015, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Memorandum entitled: “Inspection Guidance for Inpatient Healthcare Settings.”  Health Initiative 1The Enforcement Memorandum expands the scope of inspections OSHA will conduct at hospitals, nursing homes and other healthcare facilities as part of an on-going enforcement effort targeting the healthcare industry.

OSHA’s Healthcare Enforcement Initiative

OSHA’s healthcare enforcement initiative covers “Hospitals” (NAICS 622) and “Nursing and residential care facilities” (NAICS 623). It requires all OSHA inspections (whether programmed or in response to an incident of complaint) in the covered industries to include an evaluation of the following five major hazards:

  • Ergonomics (i.e., musculoskeletal disorders from patient/resident handling);
  • Bloodborne pathogens;
  • Workplace violence;
  • Tuberculosis; and
  • Slips, trips and falls.

This initiative follows the April 2015 expiration of the Nursing Home National Emphasis Program, which also focused on similar hazards.

OSHA’s increased scrutiny of the healthcare industry can be attributed to Continue reading →