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 →

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 →

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 Announces VPP Modernization Project

March 14, 2023March 14, 2023Beeta B. Lashkari Leave a comment

On February 16, 2023, OSHA announced that it is inviting the public and workplace safety stakeholders to share their comments to assist the agency as it modernizes and enhances its Voluntary Protection Program (“VPP”). The deadline for comments is April 14, 2023.

Established in 1982, OSHA’s VPP is a program that recognizes workplaces that demonstrate best practices in safety and health management and serve as industry models. VPP generally requires employers to implement “effective” safety and health management systems (“SHMS”) programs as certified by OSHA, and maintain recorded injury and illness rates below the Bureau of Labor Statistics averages for their sectors. Once admitted to the program, an employer is exempt from “programmed” OSHA inspections, though VPP participants must be recertified every three to five years.

Per OSHA, “VPP is effective at reducing injuries and illnesses at participant worksites.” For example, the average VPP worksite had a Days Away Restricted or Transferred (“DART”) case rate of 53% below the average for its industry for non-construction participants and 60% below the average for its industry for site-based construction and mobile workforce participation for 2020 (calculated annually by the Office of Partnership and Recognition and based upon the injury and illness data submitted every year by the VPP participants). These lower than industry rates have been documented since 2001, showing, per OSHA, that “VPP has consistently reduced injury and illness rates in both construction and non-construction VPP worksites for two decades compared with the national average.”

Nonetheless, OSHA states that: Continue reading →

Annual Cal/OSHA Enforcement & Regulatory Update [Webinar Recording]

February 28, 2023February 27, 2023Theresa Green Leave a comment

On Thursday, February 23, 2023, the attorneys in CMC’s Cal/OSHA Practice Group presented a webinar regarding an Annual Cal/OSHA Enforcement & Regulatory Update.

Cal/OSHA and the California legislature have continued to focus their efforts on extending workplace mandates associated with COVID-19, heat illness and wildfire smoke. This update will cover the transition from Cal/OSHA’s COVID-19 Emergency Temporary Standard to the Non-Emergency COVID-19 Rule as well as other workplace safety mandates that have been recently adopted or are under consideration.

Participants in this webinar learned: 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 →

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 Recordkeeping, Reporting, and E-Recordkeeping Rules [Webinar Recording]

September 20, 2022Theresa Green Leave a comment

On September 13, 2022, Lindsay A. DiSalvo and Ashley D. Mitchell presented a webinar regarding Important Nuances of OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules.

Although OSHA’s injury and illness recordkeeping and reporting rules may seem clear on their face, there are many nuances in the applicable standards that can create challenges to accurately making and maintaining those required records and reports. And the accuracy of injury and illness records could be becoming even more essential in light of the changes OSHA has proposed to the current e-recordkeeping rule, which would increase the availability and use of injury and illness data.

Already, e-recordkeeping data is collected by OSHA and used in developing and executing its Site-Specific Targeting (“SST”) Program based on an employer’s 300A Summary. Per the changes proposed in the current rulemaking effort, OSHA intends to expand who is required to submit recordkeeping data, what data is collected, and what data is shared with the public. This would result in more employers’ injury and illness data being under the microscope and incorporated into OSHA’s enforcement efforts. Indeed, as COVID-19 recordkeeping continues to drive up DART rates for a number of employers due to the need for COVID-19 positive employees to isolate, more may be pulled in OSHA’s SST Program. Thus, it is important for employers to understand the changes possibly to come in e-recordkeeping, as well as what those changes could mean in the context of evaluating and recording/reporting injuries and illnesses.

Participants in this webinar learned about: Continue reading →

[Webinar] OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules

September 12, 2022Theresa Green Leave a comment

On Tuesday, September 13, 2022 at 1 p.m. EST, join Lindsay A. DiSalvo and Ashley D. Mitchell for a webinar regarding Important Nuances of OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules.

Participants in this webinar will learn about: Continue reading →

What Employers Need to Know About the Monkeypox Virus [Webinar Recording]

September 9, 2022Theresa Green Leave a comment

On September 6, 2022, Kara M. Maciel, Eric J. Conn and Ashley D. Mitchell presented a webinar regarding What Employers Need to Know About the Monkeypox Virus.

On July 23rd, the World Health Organization declared Monkeypox a Public Health Emergency of International Concern. By late July, the U.S. surpassed 10,000 total cases, and the Biden Administration declared it a public health emergency. While the Monkeypox Virus is less transmissible than COVID-19 and rarely fatal in its current form, there are still workplace safety and health considerations employers will have to address.

Participants in this webinar learned: Continue reading →

OSHA Grants Request to Extend the Comment Period for the Proposed Amended E-Recordkeeping Rule

May 26, 2022May 27, 2022Eric J. Conn Leave a comment

By Eric J. Conn, Chair of CMC’s National OSHA Practice

On March 30^th, OSHA published a proposal to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (aka the E-Recordkeeping Rule). Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

In short, the proposed changes to the E-Recordkeeping Rule would:

Replace the current requirement for all workplaces with 250+ employees to annually submit to OSHA’s electronic Injury Tracking Application the data from their 300A Annual Summary of work-related injuries, with a new requirement for workplaces with 100+ employees in the “high hazard industries” listed in new Appendix B to submit the full panoply of OSHA recordkeeping records – i.e., OSHA Forms 300 (the OSHA Log), 301 (detailed incident reports for each recorded injury), and the 300A Annual Summary;
Require workplaces with 20+ employees in another larger list of so-called “high-hazard industries” (new Appendix A) to submit the data from their 300As; and
Compel all submitting employers to include their proper company name with the electronic data submissions.

That Federal Register Notice set the deadline for stakeholders to submit comments for Tuesday, May 31 — the day after Memorial Day and one week after the deadline to submit post-hearing comments about OSHA’s proposed Permanent COVID-19 Standard for Healthcare. Because of that crowded schedule and the importance of the proposed changes to the E-Recordkeeping Rule, last week, on behalf of Conn Maciel Carey’s Employers E-Recordkeeping Rulemaking Coalition, we prepared and filed a Letter to OSHA Requesting an Extension of the Comment Period. Continue reading →

Coalition to Work on OSHA’s Rulemaking to Expand the E-Recordkeeping Rule

April 27, 2022Theresa Green Leave a comment

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 (i.e., the E-Recordkeeping Rule). Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

As we have had to do too often the last couple of years, Conn Maciel Carey’s OSHA Team is organizing a flat fee-based rulemaking coalition of employers and trade groups to collaborate to work on submitting public comments on this new proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.

We held a kickoff call for the coalition earlier this week. If you were unable to attend, we are pleased to share links to the recording and a copy of the slides that we used. We expect to have a follow up virtual meeting in May to solicit detailed input from coalition participants and review our advocacy strategy.

There is still time to join our coalition if your organization would like to partner with us on this rulemaking. OSHA requested public comments to be submitted by May 31, 2022.

We expect to address, among other important concerns, that: Continue reading →

OSHA’s Rulemaking to Expand the Electronic Recordkeeping Rule

April 4, 2022April 9, 2022Eric J. Conn 3 Comments

By Eric J. Conn

Who else misses the time when OSHA would issue a new regulation only once every decade or so?!?! Alas, OSHA has been quite busy the last few months on the rulemaking front, and it doesn’t seem to be slowing down anytime soon. You’ve heard a lot from us about the various COVID-19 rulemaking efforts – two emergency standards and a new effort to make permanent the COVID-19 standard for healthcare. Now, OSHA has turned its attention to a more traditional OSHA subject – injury and illness recordkeeping.

Specifically, on March 30^th, OSHA published a new proposed rule to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule; i.e., the Electronic Recordkeeping Rule.

Background on OSHA’s E-Recordkeeping Requirements

OSHA first issued regulations requiring that employers record occupational injuries and illnesses in 1971. Pursuant to 29 CFR 1904.7, employers must keep records of work-related injuries and illnesses that involve death, loss of consciousness, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional. Additional requirements were added for Reporting of Fatality and Multiple Hospitalization Incidents, and later, in 2014, OSHA expanded the types of incidents that had to be reported to OSHA; i.e., a single in-patient hospitalization, amputations, and losses of an eye. (79 FR 56130)

In 2016 (amended in 2018), annual electronic injury recordkeeping data submissions to OSHA became mandatory both for establishments with 250 or more employees, and establishments with 20-249 employees in certain designated industries. The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we have chronicled in the past, the E-Recordkeeping Rule has had a long and tortured history. Before promulgation of the E-Recordkeeping Rule, 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, employer injury and illness recordkeeping data was maintained internally by employers. In a major policy shift, in 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to proactively submit injury and illness data to OSHA through OSHA’s Injury Tracking Application (“ITA”). More specifically, the 2016 E-Recordkeeping Rule required: Continue reading →

Conn Maciel Carey’s 2022 OSHA Webinar Series

January 4, 2022January 5, 2022Theresa Green Leave a comment

ANNOUNCING CONN MACIEL CAREY’S
2022 OSHA WEBINAR SERIES

A full year into the Biden Administration, the senior leadership team at federal OSHA is set, the agency’s new regulatory agenda has been revealed, and the enforcement landscape has begun to take shape, revealing a dramatic shift in priorities, including stronger enforcement, higher budgets and more robust policies protecting workers, and a renewed focus on new rulemaking. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, relied almost exclusively on the General Duty Clause to enforce COVID-19 safety measures, drastically curtailed rulemaking, and declined to issue an emergency COVID-19 standard, the pendulum swing at OSHA has already been more pronounced than during past transitions. Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.

Conn Maciel Carey LLP’s complimentary 2022 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA 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 2022 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 seven 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 OSHA Webinar Series – Program Schedule

Continue reading →

Fed OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard At OMB for Approval

October 14, 2021October 15, 2021Eric J. Conn 1 Comment

By Conn Maciel Carey’s COVID-19 Task Force

On September 9^th, President Biden announced that he was directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated, and more importantly, to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing. This new ETS focused on vaccinations and testing is a central element of the President’s newly unveiled Path Out of the Pandemic – COVID-19 Action Plan, with a central tenet to “vaccinate the unvaccinated.”

We heard from our contacts at OSHA that the agency would move much more quickly to prepare and send this ETS to the White House than it had done with the first COVID-19 ETS this Spring and Summer, and they have done just that. On Tuesday, October 12, 2021, the Department of Labor issued a statement confirming that OSHA delivered to the White House’s Office of Management and Budget what the statement characterized as the “initial text” of the ETS. Here is the relevant except from the DOL statement:

“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace. On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”

We thought the reference to “initial text” was peculiar. Generally, it is a proposed final regulation that OSHA delivers to OMB in the context of an emergency rulemaking, not a working draft. But, the very next day, on Wednesday, October 13, 2021, after hitting the “refresh” button more times through the night than we would like to admit, we saw what we were expecting – a proposed final version of Federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB: Continue reading →

Fed OSHA’s COVID-19 ETS: What You Need to Know About Reporting

July 7, 2021August 17, 2021Eric J. Conn 5 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6^th compliance deadline upon us. Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS. Look for our summaries here each day over the next week. The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

Here is a summary of the ETS requirements for reporting:

Reporting

29 C.F.R. Section 1910.502(r) revises the fatality and hospitalization reporting requirements for COVID-19 cases. This summary describes the new reporting requirements.

For fatalities, covered employers must report all work-related COVID-19 fatalities within 8 hours of learning of the reportable fatality. Unlike the requirement to report work-related fatalities under the existing injury and illness reporting standard (29 C.F.R. Section 1904.39), the reporting obligation is not limited to fatalities that occur within 30 days of exposure.

This means if these two factors are present, the case is reportable:

The employee died from a confirmed case of COVID-19; and
The cause of death was a work-related exposure to COVID-19.

For hospitalizations, covered employers must report all work-related COVID-19 in-patient hospitalization within 24 hours of learning of the reportable in-patient hospitalization. Similar to fatalities, OSHA did not include in the COVID-19 reporting standard the temporal boundary included in the existing Section 1904.39 reporting standard. Continue reading →

Fed OSHA’s COVID-19 ETS: What You Need to Know About Recordkeeping

July 6, 2021August 17, 2021Eric J. Conn 7 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Here is a summary of the ETS requirements for recordkeeping:

Recordkeeping

29 C.F.R. Section 1910.502(q) establishes a new recordkeeping obligation applicable to covered employers requiring the creation and maintenance of a dedicated COVID-19 Log, while leaving in place the existing requirements applicable to all employers (including employers covered by the ETS) to record workplace COVID-19 cases that meet the Section 1904 recordkeeping criteria threshold (days away from work, etc.) on the employer’s OSHA 300 Log. It also establishes recordkeeping obligations for the COVID-19 Plan that is required by Section 1910.502(c) of the ETS. This summary describes the new requirements for COVID-19 recordkeeping.

The ETS requires covered employers — unless they have 10 or fewer employees in the entire company — to create, maintain, and make available to regulators COVID-19 records. Most notably, this requires covered employers to maintain a COVID-19 Log on which they must record every instance of a COVID-19-positive employee, whether or not the illness is work-related¸ with the limited exception of employees who exclusively telework. Unlike an OSHA 300 Log, for which employers have seven days to record an injury or illness, positive COVID-19 cases must be recorded on the COVID-19 Log within 24 hours of learning of the positive diagnosis. (Note that the 10 or fewer employee exemption applies to the new COVID-19 Log recordkeeping obligations only and not to a covered employer’s obligation to report work-related COVID-19 fatality or in-patient hospitalizations.) Continue reading →

Fed OSHA’s COVID-19 ETS: What You Need to Know About Hazard Assessments and COVID-19 Plans

July 2, 2021August 17, 2021Eric J. Conn 8 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6^th compliance deadline nearly upon us. Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS. Look for our summaries here each day over the next week. The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

One of the first steps employers must take is to conduct a hazard assessment of your operations to determine those areas where risk of virus transmission exists, and to then develop a response plan for dealing with those risks. The hazard assessment findings and your plans for transmission mitigation must be incorporated into a written COVID-19 Plan. Here is a summary of the ETS requirements for conducting the hazard assessment and preparing a written plan:

29 C.F.R. Section 1910.502(c) requires all employers covered by the ETS to develop and implement a COVID-19 Plan for each workplace. If the employer has more than 10 employees, the Plan must be written. This summary describes the requirements associated with the COVID-19 Plan.

Before developing the Plan, employers must conduct a workplace specific hazard assessment for the purpose of identifying and understanding where potential COVID-19 hazards exist and what controls must be implemented to reduce those hazards. Employers must inspect the entire workplace and the hazard assessment should: Continue reading →

Adverse Reactions to COVID-19 Vaccines Are NOT Recordable On Your OSHA 300 Log

May 24, 2021August 9, 2021Theresa Green Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Our national OSHA Practice at Conn Maciel Carey has been advocating hard to OSHA about COVID-19 related recordkeeping issues. One of those issues has been the recordability of adverse reactions to the COVID-19 vaccine. Specifically, if we want to encourage more workers to get vaccinated, and to encourage more employers to mandate, incentivize, or encourage employees to get vaccinated, OSHA should not require employers to record adverse reactions to the vaccines as days away illnesses on their 300 Logs.

Many people have experienced something of a flu-like reaction to the COVID-19 vaccines, and often have required at least a day away from work the day after the second dose. OSHA had previously indicated that many of these reactions would be recordable on the OSHA 300 Log, especially if the employer required or strongly encouraged the vaccine, or if the circumstances of the job made vaccination something of a de facto requirement.

In mid-April, OSHA clarified its position in a couple of FAQs about the recordability of adverse reactions to the vaccine in a couple of FAQs on its COVID-19 page. At that time, OSHA said: Continue reading →

New OSHA Interpretation Letter Clarifies “Double Reporting” Issue

March 24, 2021Lindsay A. DiSalvo Leave a comment

By Eric J. Conn and Lindsay Disalvo

In a new formal Letter of Interpretation (“LOI”) responding to Conn Maciel Carey LLP (“CMC”), the Occupational Safety and Health Administration (“OSHA”) explains that employers are only obligated to report a serious injury or illness once, even if it ultimately results in more than one reportable outcome; e.g., an employer need not report to OSHA a later-developing employee death, if the employer has already reported to OSHA the hospitalization of that same employee from the same incident that resulted in his hospitalization. A plain reading of OSHA’s hospitalization, amputation, and fatality regulatory language did not make this clear, nor did existing guidance provided by OSHA at the time.

CMC has represented numerous employers in contested cases and inspection disputes related to alleged failures to make that second report to OSHA when the same serious injury resulted in more than one reportable outcome under 29 C.F.R. 1904.39. Thus, members of CMC’s national OSHA Practice submitted a request for an interpretation letter from Fed OSHA on April 14, 2020, seeking to address the confusion among the regulated community and OSHA’s field staff in area offices around the country about whether a second report was required. As we expected, the answer is that double reporting is not required. Continue reading →

Five Important Updates About Federal OSHA and Cal/OSHA COVID-19 Recordkeeping

March 22, 2021March 23, 2021Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

It has been a little while since we last shared an update about COVID-19 recordkeeping issues. Since Fed OSHA issued its COVID-19 recordkeeping guidance in May 2020 and Cal/OSHA issued its controversial COVID-19 Recordkeeping FAQs with unique, more onerous requirements in June, the agencies have been mostly quiet about COVID-19 recordkeeping. But that does not mean there have not been significant developments in that area or that there are no important developments to monitor closely.

Here are five notable OSHA and Cal/OSHA COVID-19 recordkeeping updates that we wanted to share with you:

1. Congressional Intervention About Cal/OSHA’s COVID-19 Recordkeeping FAQs

As we explained last year, Cal/OSHA’s May 27th COVID-19 Recordkeeping FAQs departed from Fed OSHA’s COVID-19 recordkeeping requirements in two key ways: (i) rejecting Fed OSHA’s recordability precondition of a positive COVID test; and (ii) flipping the burden of establishing work-relatedness on its head, setting instead a presumption of work-relatedness if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.

Aside from being bad policy that will result in many non-work related illnesses being recorded on California employers’ 300 Logs, Cal/OSHA is not legally permitted to deviate from Fed OSHA’s recordkeeping requirements.

The latest big development on that front was a helpful letter from the U.S. Department of Labor responding to an inquiry about this issue from a group of California Congressmen, in which DOL confirms that Cal/OSHA should be following the same recordkeeping requirements as Fed OSHA. Despite the clear statements in Cal/OSHA’s FAQs that a “confirmed case” is not required for recordkeeping and that work-relatedness should be presumed, the federal Department of Labor explained in its letter to the Congressmen: Continue reading →

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

January 25, 2021January 24, 2021Eric J. Conn Leave a comment

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

This is your yearly reminder about the important February 1^st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses. The requirement applies toall U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of very low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

By February 1^st every year, covered employers must:

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

Five Common 300A Mistakes that Employers Make

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

Announcing Conn Maciel Carey’s 2021 OSHA Webinar Series

January 7, 2021August 9, 2021Theresa Green Leave a comment

ANNOUNCING CONN MACIEL CAREY’S
2021 OSHA WEBINAR SERIES

As the Trump Administration hands over the keys to President-Elect Biden and a new Democratic Administration, OSHA’s enforcement and regulatory landscape is set to change in dramatic ways, from shifting enforcement priorities, budgets and policies, to efforts to reignite OSHA’s rulemaking apparatus. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, handled COVID-19 enforcement with a light touch, pumped the brakes on almost all rulemaking in general, and declined to issue an emergency COVID-19 standard in particular, the pendulum swing at OSHA is likely to be more pronounced than during past transitions. Accordingly, it is more important now than ever before to pay attention to OSHA developments.

Conn Maciel Carey’s complimentary 2021 OSHA Webinar Series, which includes (at least) monthly programs put on by the attorneys in the firm’s national OSHA Practice, is designed to give employers insight into developments at OSHA during this period of flux and unpredictability.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual OSHA Webinar Series, click here to subscribe to our YouTube channel to access those webinars.

2021 OSHA Webinar Series – Program Schedule

OSHA’s 2020 in Review
and 2021 Forecast

Thursday, January 14^th

Respiratory Protection Rules –
Top 5 Risks and Mistakes

Wednesday, May 12th

Cal/OSHA’s COVID-19
Emergency Temporary Standard

Tuesday, January 26^th

What to Expect from DOL Under
a Biden Administration

Wednesday, June 16^th

What Employers Need to Know
About the COVID-19 Vaccine

Thursday, February 11^th

Mid-Year Review of OSHA Developments

Thursday, July 22^nd

COVID-19 Vaccine Distribution and Administration: OSHA Considerations

Thursday, February 18^th

OSHA VPP and other Cooperative Programs

Tuesday, August 24^th

Update About the
Chemical Safety Board

Tuesday, March 16^th

Update about OSHA’s Electronic Recordkeeping Rule

Wednesday, September 8^th

Annual Cal/OSHA Enforcement
and Regulatory Update

Tuesday, March 23^rd

OSHA Issues During
Acquisitions and Divestitures

Thursday, October 7^th

COVID-19 OSHA Enforcement
and Regulatory Update

Wednesday, April 20^th

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

Tuesday, November 16^th

Recap of Year One of the Biden Administration

Tuesday, December 14^th

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

Continue reading →

California COVID-19 Emergency Rule Adopted by Standards Board

November 30, 2020December 1, 2020Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Not to be outdone by Virginia OSHA, Oregon OSHA, or Michigan OSHA, Cal/OSHA is on the precipice of issuing an onerous COVID-19 specific regulation that is expected to be issued, with all provisions immediately effective, next week. Below is detailed summary of how we got here, as well as an outline of what the California rule will require.

On November 19, 2020, the California’s Occupational Safety and Health Standards Board (“Board”) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually). The Emergency Rule has been presented to California’s Office of Administrative Law (“OAL”) for approval and publication. OAL has ten days to approve the Rule; if approved, the Rule will become immediately effective, likely next Monday, November 30^th. The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome, compliance obligations.

The Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee. The Petition requested the Board amend Title 8 standards to create two new regulations – the first, a temporary emergency standard that would provide specific protections to California employees who may experience exposure to COVID-19, but who are not already covered by Cal/OSHA’s existing Aerosol Transmissible Diseases standard (section 5199, which applies generally to healthcare employers); and the second, a regular rulemaking for a permanent infectious diseases standard, including novel pathogens such as SARS-CoV-2. Note that emergency rulemakings are rare and must meet a very high threshold designed to allow this abbreviated process; only when a true emergency necessitates this process. Here is a very simplified flowchart of the emergency standards rulemaking process.

Interestingly, the Standard Board’s staff found that a new COVID-19 rule was unnecessary because much of the proposed requirements recommended by WorkSafe’s Petition are already addressed under Cal/OSHA’s Injury and Illness Prevention Program Standard (“IIPP”), and therefore, recommended that the Petition be denied. DOSH staff, however, recommended that the Petition be approved, finding that an emergency regulation is warranted by the COVID-19 public health crisis and that the agency’s enforcement efforts would benefit from a specific regulatory mandate related to COVID-19.

On September 17^th, the Standards Board accepted DOSH’s recommendation, finding that Continue reading →

[Bonus Webinar] Michigan OSHA’s New COVID-19 Emergency Rule

October 22, 2020October 26, 2020Theresa Green 1 Comment

On Thursday, October 29, 2020 at 11 AM Eastern / 10 AM Central, join Eric J. Conn and Aaron R. Gelb for a bonus webinar event: Michigan OSHA’s New COVID-19 Emergency Rule.

When the MI Supreme Court struck down Gov. Whitmer’s COVID-19 Executive Orders, MI OSHA responded quickly to fill the void, and last week issued a series of COVID-19 Emergency Regulations. When Gov. Whitmer signed the “Emergency Rules Order,” Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulations. While many of the requirements set forth in the new rules mirror the Governor’s prior EOs, having a prescriptive rule in place makes it that much easier for MI OSHA to issue citations to employers.

Given MI OSHA’s aggressive use of the General Duty Clause to support a series of citations after an inspection blitz over the summer, Michigan employers should expect enforcement to continue in a similar manner, making compliance with these rules all the more important. Participants in this webinar will learn about the requirements of MIOSHA’s COVID-19 emergency rules and steps to take to avoid citations, including:

Continue reading →