Last Friday, April 9th, the White House announced Pres. Biden’s nomination of Doug Parker for Assistant Secretary of Labor for OSHA – the top job at federal OSHA. Mr. Parker is currently the Chief of California’s Division of Occupational Safety and Health (Cal/OSHA), serving as the Head of Cal/OSHA since the summer of 2019. Mr. Parker was considered a leading candidate for this nomination to head OSHA since he was picked for a spot on the Biden-Harris Labor Transition Team to focus on worker safety and health issues.
In his role as Division Chief at Cal/OSHA, Mr. Parker has been involved in numerous major developments, including:
Developing the enforcement plan for Cal/OSHA’s new-ish regulation for Workplace Violence Prevention in Healthcare;
Rolling out Cal/OSHA’s emergency Wildfire Smoke Rule and overseeing the development of the Permanent Wildfire Smoke Rule;
Overseeing an extension of the statute of limitations for injury and illness recordkeeping violations – making them “continuing violations” for the five-year record-retention period;
Advancing a rulemaking for an Indoor Heat Illness Prevention standard; and
Implementing a Cal/OSHA operational change to significantly expand the agency’s definition of “Repeat” violations
Even with all that, Mr. Parker’s tenure at Cal/OSHA will likely be best remembered for his role in developing and rolling-out Continue reading →
Similar to the previous guidance issued by the agency, MSHA continues to rely heavily on best practices outlined by the Centers for Disease Control (“CDC”), however, unlike MSHA’s 2020 guidance, this time the agency lays out specific actions and policies it “recommends” operators undertake while highlighting several specific, existing MSHA regulations that can be applied to COVID-19 prevention for enforcement purposes.
For the first time, MSHA formally recommends that each mine develop and implement a COVID-19 Prevention Program. These programs, which have been recommended by OSHA and are required in multiple state-plan OSHA Emergency Temporary Standards (“ETS”), are expected to be the mine’s (or contractor’s) outline and collection of COVID-19 mitigation efforts. Our Conn Maciel Carey workplace safety team has been recommending employers have these plans in place, and assisting clients with the development of COVID-19 Exposure Control and Response Plans throughout the pandemic.
Now, those employers regulated by MSHA will be expected to have the plans in place. In instances where OSHA has come on site for COVID-19 complaints or investigations, most often the first document request to the employer is for the site’s COVID-19 Prevention Program, even though under federal OSHA – as with MSHA – it is not currently required by regulation.
MSHA recommends a miner’s COVID-19 Prevention Program and plan would at a minimum: Continue reading →
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.
We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.
Conn Maciel Carey’s complimentary2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history.
This complimentary program will feature panel discussions with current and former representatives from the National Labor Relations Board, OSHA and MSHA addressing key enforcement and regulatory developments. The government representatives will be joined by senior corporate counsel from several multi-national corporations and Conn Maciel Carey’s Labor & Employment and Workplace Safety Law specialist attorneys. The plenary sessions will cover topics including:
Conn Maciel Carey LLP announced today the opening of its Columbus, Ohio office. It is the firm’s sixth office nationally and the second location in the Midwest. The new office represents another important step in the firm’s continued growth in the region, together with the opening of its Chicago office last year.
Columbus is a growing Midwest hub and is centrally located to many of the nation’s current and historic industrial centers. With an expanded Midwest presence, Conn Maciel Carey attorneys now provide enhanced services to its national clients operating in the Midwest.
“We are excited about our expanding Midwest presence” said the firm’s Managing Partner Bryan Carey. “The Columbus office will allow the firm to build upon the success of our 2018 launch of our Chicago office, offering clients operating in the central United States with greater proximity to our attorneys, resources, and counsel.”
Nicholas W. Scala, a partner with the firm, will lead the Columbus office. Mr. Scala joined the Firm in 2016, founding the firm’s MSHA Practice Group, which he chairs. His principal practice services the mining industry, managing all interaction with, and contest of enforcement by, the Mine Safety and Health Administration (MSHA) for companies operating in the coal, aggregates, industrial minerals, and cement industries. Nick also supports the firm’s national OSHA Practice Group, Continue reading →
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.
As a parting gift from Joe Main, the departing Assistant Secretary of Labor for the Mine Safety & Health Administration (MSHA), MSHA released this week the final rule for Examinations of Working Places in Metal and Nonmetal Mines. MSHA first proposed rebooting 30 C.F.R. §56/57.18002 on June 8, 2016. After an extended public comment period, ending on September 30, 2016, MSHA modified elements of the proposed rule while crafting the final version which will be formally published in the Federal Register next Monday, January 23, 2017.
The effective date, when MSHA will begin enforcement of the new provisions within the final rule, is May 23, 2017 or 120 days following publication on January 23rd. Until the effective date, the existing provisions of §56/57.18002 will remain the standard for enforcement purposes.
Under the current standard mine operators must perform a workplace examination at least once per shift, maintain a record for twelve (12) months which must include the name of the examiner, locations of areas examined and the date.
The final rule, announced on January 18, 2017, will increase the responsibilities for mine operators to comply with the workplace exam standard. Effective May 23, 2017 operators must:
Perform a workplace examination BEFORE any miners begin work in an area;
Promptly notify miners of any adverse conditions in their working area before they are exposed to the adverse conditions;
Maintain a record of the examination for twelve (12) months, which includes:
The name of the examiner
Date of the exam
Descriptions of any and all adverse conditions found during examination (even if corrected immediately)
Date of corrective action
Make records available to MSHA inspectors AND miner representatives, providing copies upon request.
What has evolved (or devolved) into perhaps the most controversial election in American history, could translate in a couple of months into a whirlwind for labor and workplace safety policy. Stark differences between the major candidates promise either an onward march for Obama-era rules and enforcement philosophy, or a sudden rollback of the Obama Administration’s aggressive regulatory and enforcement agenda.
How this election turns out will have lasting consequences for a range of labor initiatives and policies, many of which have led to some of the Obama Administration’s most heated policy debates. These range from forcing disclosure of so called “persuaders” involved in union organizing to a public shaming campaign seeking to put employers’ safety data online.
As we discussed during a recent Conn Maciel Carey webinar, the results on Nov. 8th will have a huge impact on how the Labor Department proceeds with both new regulations and enforcement policies. Everything from Wage and Hour to OSHA and MSHA will be affected – and stakeholders will feel the differences quickly regardless who wins the election.
On most issues, a Clinton win would cement what the Labor agencies under Obama view as their mandate to keep issuing tougher rules on behalf of workers and unions. Generally, an election of Trump means DOL will scrap the lion’s share of its current agenda, and begin to repeal regulations finalized over Obama’s two terms, since his economic plan relies heavily on easing regulatory burdens on businesses. Continue reading →
In just a few weeks, we will have the opportunity to enter the voting booth, and cast a ballot to elect the next President of the United States. The platforms and proposed polices of the candidates are more divergent than ever. The outcome of this election will significantly impact this country’s future with respect to healthcare, military actions, economic policy, and of course, workplace challenges, like union organizing, and occupational safety and health regulation and enforcement. This webinar will discuss the public positions taken by both candidates about labor employment subjects and safety and health enforcement and rulemaking, and the likely impacts depending on which candidate takes the White House.
As we enter the home stretch of the Obama Administration, we are seeing increased MSHA enforcement, from more frequent and aggressive inspections to more citations with higher penalties. MSHA is also trying to cram in a few more onerous new rules and regulations at the last-minute. With the mining industry swirling to understand MSHA’s new proposed rules and enforcement efforts, it is more important now than ever before to be prepared for what’s ahead from MSHA.
On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Pub. L. No. 114-185, which made significant changes to the Freedom of Information Act, 5 U.S.C. § 552, et seq. (“FOIA”). FOIA can be a great tool for unlocking the federal government’s vast compilations of documents and information, which make it a great resource for business intelligence. But you also should be aware of FOIA’s pitfalls, including how your own business’s confidential documents and information can be disclosed to the public, including the media, if the federal government has them in its possession and they become subject to a FOIA request.
FOIA was enacted in 1966 and allows any member of the public to request access to government information without requiring a showing of a need or reason for seeking the information. FOIA was a revision of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (“APA”). Congress saw that the APA was falling short of its original disclosure goals and that the original law came to be viewed more as a withholding statute than a disclosure statute. See EPA v. Mink, 410 U.S. 73, 79 (1973). Congress’s intent in enacting FOIA was to make the government’s records and activities available and transparent to the public with only a handful of express exemptions that the government could invoke to withhold documents and information from disclosure. Generally the exemptions prevent disclosure of information related to national security, law enforcement investigations, government personnel rules and practices, specific exemptions from other statutes, and trade secret, commercial, or financial information obtained from third parties such as individuals and businesses.
In the proposed rule, MSHA suggests modifications to the examination format and record keeping requirements of the existing standards. Under the existing workplace exam standards, a mine operator is required to comply with the following provisions:
“(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.
(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.
(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.”
During the last 22 years, MSHA issued five Program Policy Letters (PPL) clarifying and emphasizing certain aspects §56/57.18002. Most recently, MSHA issued a PPL in July 2015 that many considered de facto rulemaking for the way it discussed the future enforcement of training requirements for competent persons. The July 2015 PPL (PPL P15-IV-01) encouraged that a foreman or other supervisor act as the competent person for the purpose of workplace exams as a “best practice.” A best practice that also directly links the recognition of hazards, or lack thereof, to the company through an agent of management for elevated enforcement from MSHA, and possibly special investigation under Section 110 of the Mine Act.
The MSHA Defense Report will provide stakeholders in the mining industry with useful legal and regulatory updates, as well as analysis of trends in the mine safety and health legal landscape. Whether reviewing new decisions from the Federal Mine Safety & Health Review Commission and its Judges, or the latest important enforcement initiatives policy and rulemaking issues from the Mine Safety and Health Administration, The MSHA Defense Report will be the destination for the nation’s mine operators to access the latest news about the full range of safety and health topics affecting the Industry.
As a true complement to Conn Maciel Carey’s national OSHA Practice Group and its OSHA Defense Report blog, the MSHA Practice and its new MSHA Defense Report blog are valuable resources to learn about the significance of new legal developments in federal mining regulation from the quarry to the courtroom, helping operators prepare and respond. The blog will also offer practical advice and creative solutions, with the goal of minimizing exposure to liability.
We hope you visit the blog often and provide the MSHA Group with feedback about topics of interest.
Conn Maciel Carey is thrilled to announce the addition Nicholas W. Scala, a prominent Washington, D.C. Mine Safety & Health Law specialist attorney, to the firm’s national Workplace Safety Practice. Mr. Scala will Chairs the firm’s new national MSHA Practice Group, which expands and complements the firm’s Workplace Safety Practice. He has extensive experience and expertise in handling complex Mine Safety and Health Administration (“MSHA”) rulemaking, as well as regularly assisting clients in accident and fatality investigations and a broad range of enforcement-related matters.
Conn Maciel Carey’s national MSHA Practice will represent and advise metal/non-metal and coal mining companies, cement manufacturers, construction entities and other employers that operate in the mining industry in all phases of interaction with MSHA, particularly companies challenging and litigating enforcement by the agency.