The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term. This webinar will review OSHA enforcement, rulemaking, and other developments from 2018, and will discuss the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.
As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).
When federal OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication. Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration. As a result, numerous State OSH programs failed to initially adopt the rule. After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.
Delinquent State Plans Began Adopting E-Recordkeeping
In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon. While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:
- California (Cal/OSHA);
- Washington (WA DLI, WISHA, or DOSH);
- Maryland (MOSH);
- Minnesota (MNOSHA);
- South Carolina (SC OSHA);
- Utah (UOSH);
- Wyoming (Wy OSHA); and
- Vermont (VOSHA)
Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction. Specifically, on April 30, 2018, federal OSHA issued a Continue reading
After years of wondering how OSHA could possibly manage and use data collected under the 2016 E-Recordkeeping Rule, the agency has finally revealed its hand. Last month, OSHA launched its Site-Specific Targeting 2016 (“SST-16”) inspection plan, which outlines the agency’s strategy to target establishments for inspection based on the 300A data collected by OSHA under its Final Rule to Improve Tracking of Workplace Injuries and Illness (i.e. the “E-Recordkeeping Rule”).
What is OSHA’s SST-16 Inspection Plan?
The SST-16 Inspection Plan is OSHA’s site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees. The Plan is based on the calendar year 2016 300A injury and illness summary data that employers submitted to OSHA via OSHA’s Injury Tracking Application (aka, the E-Recordkeeping Portal) in December 2017.
Employers should not be surprised by OSHA’s site-specific targeting plan, as this is not a novel program for OSHA. SST was the grandfather of all OSHA enforcement emphasis programs. Prior to 2014, SST programs used injury and illness information collected under the former OSHA Data Initiative to target the agency’s inspection resources.
OSHA believes the SST Program is “program helps OSHA achieve its goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.”
The SST-16 Plan selects individual establishments for inspection based on their CY 2016 300A injury data submitted under the E-Recordkeeping Rule. OSHA has created a software that will generate a list of targeted establishments for enforcement from this pool of data. The targeted establishments will be those with Continue reading
We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking. We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases. And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.
As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.
To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.
Tuesday, January 15th
Tuesday, July 23rd
Tuesday, February 12th
Tuesday, August 13th
Tuesday, March 19th
Tuesday, September 24th
Tuesday, April 16th
Tuesday, October 22nd
Tuesday, May 28th
Tuesday, November 19th
Tuesday, June 18th
Tuesday, December 17th
See below for descriptions of the webinars and registration links Continue reading
On Tuesday, December 4, 2018 at 1 PM Eastern, join Jordan B. Schwartz and Lindsay A. DiSalvo of the law firm Conn Maciel Carey for a complimentary webinar: “OSHA and the ADA: How Two Labor Laws Align and Diverge.”
OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.” But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers. This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard. It is important to understand the law in this context, especially due to America’s aging workforce.
The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs. A disability may also impact whether and how an injury is recorded. Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information. Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.
On November 13, 2018, Eric J. Conn, Micah Smith, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule.”
Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical manufacturing processes. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like the second wave of Refinery PSM NEP inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.
Then President Trump took office with a de-regulatory agenda. Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?
This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, and other major safety and health related developments rolling out in the early stages of the Trump Administration.
Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC
The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success. The event allowed the more than 160 safety and legal representatives from the petroleum refining, chemical manufacturing, paper manufacturing, and fertilizer industries to hear from and share with senior federal government officials from OSHA, EPA and the Chemical Safety Board, both through interactive panel discussions and breakout roundtable discussions. The agency panels and facilitated discussions covered topics ranging from enforcement under the Trump Administration, to the status of OSHA’s PSM and RMP Rulemakings, candid debates about major issues in dispute in recent PSM and RMP case, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and how to comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.
- the importance of candid discussions between regulators and the regulated community; and
- the near-term risk of agencies working to upend the historical performance-oriented paradigm of the process safety regulatory framework.
Too often, OSHA and EPA representatives complain that Industry “can make up the rules as it goes along.” – Tweet from David Michaels, Former Assistant Secretary of Labor for OSHA.
Statements like that imply a haphazard approach to process safety that it is not reflected by the diligent work of refiners and manufacturers across the country. Our experience shows a much different take on process safety. We hear about all of the ways that process safety is evolving, much more often on Industry’s own initiative than in response to a regulatory action. We watch how lessons are being learned and applied from incidents and experience. We see how much time is spent trying to anticipate the kinds of issues that could cause a process safety incident. And we feel a regulatory backlash, when process safety problems are most often found in outliers or with operations not even covered by OSHA’s or EPA’s process safety regulations.
More importantly, remarks about Industry making up the rules as it goes along also reflect a flawed belief by regulators that Continue reading
On September 25, 2018, OSHA announced the launch of a new Regional Emphasis Program (REP) to address the hazards from exposure to fertilizer grade ammonium nitrate (FGAN) and agricultural anhydrous ammonia. The REP, effective October 1, 2018, covers the states of Arkansas, Louisiana, Oklahoma, and Texas in OSHA Region VI, and Kansas, Missouri, and Nebraska in OSHA Region VII. OSHA will commence enforcement activities on January 1, 2019, after a three-month period of education and prevention outreach. Generally, enforcement activities will include the inspection and review of: (1) production operations and working conditions; (2) injury and illness records; (3) safety and health programs; and (4) chemical handling and use. OSHA’s decision to initiate a new REP covering two regions and seven states is yet another reminder that the agency is continuing full-speed ahead with enforcement efforts. While many anticipated that the Trump administration would retire OSHA’s national, regional and local emphasis programs, that has not happened. To the contrary, OSHA continues to implement the same number of enforcement emphasis programs as at the end of the Obama administration.
What prompted OSHA to act now?
On April 17, 2013, a fire and explosion involving FGAN occurred at the West Fertilizer Company in West, Texas, resulting in at least 14 fatalities. While OSHA and the West Fertilizer Company ultimately reached a settlement, OSHA initially issued more than 20 citations, including several under Section (i) of its Explosives and Blasting Agents Standard. Continue reading
On October 16, 2018, Eric J. Conn and Amanda R. Walker of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Everything You Never Wanted to Know about OSHA Repeat, Willful and Egregious Violations.”
During the Obama Era, OSHA sharpened its enforcement teeth considerably by rewriting policies to characterize more violations as repeat and willful, and by significantly increasing its civil penalty authority. Now, OSHA violations characterized as Repeat or Willful carry penalties up to approx. $126,000 each. But what are Repeat and Willful violations? And what are these “Egregious” (or per-instance) citations OSHA has been issuing more and more often that lead to multi-million dollar enforcement actions?
This webinar covered the legal standard for Repeat, Willful and Egregious violations, the circumstances most often associated with them, the consequences for receiving them, and how OSHA’s enforcement policies have resulted in significant increases in the frequency with which we see them.
Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA. Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.
The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission. Quite to the contrary, relevant enforcement data reveals enforcement creep. With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.
Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:
- OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
- The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)
- The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
- The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)
Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tues., Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.
This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments. They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s Labor & Employment and OSHA specialist attorneys. There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.
1:00 PM – Registration and Networking
1:30 PM – OSHA Panel
- Angie Loftus (OSHA Area Director – Chicago North Area Office)
- Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading
On August 21, 2018, Eric J. Conn and Aaron R. Gelb of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “OSHA’s Policies of Public Shaming: the Status under the Trump Admin. and the Future.“
As a small budget agency, OSHA has long looked for policies that will leverage individual enforcement actions to have the greatest impact on Industry. That is the origin of OSHA’s controversial policy of “Regulation by Shaming.” During the Obama Administration, employer shaming became a significant enforcement tool and came in many forms, from increasing use of enforcement press releases that included embarrassing and inflammatory quotations about employers, to maintaining a public bad actors list in connection with the Severe Violator Enforcement Program, and the pièce de résistance – publishing a Rule by which OSHA will collect and publish employers’ injury and illness data and details about fatalities.
The Trump Administration has signaled it will take a different approach to public shaming, but at the very least, the vestiges of these policies still remain, and some Administration actions suggest they are here to stay.
During this webinar, participants learned about:
Attend the Inaugural Process Safety Summit in Washington, DC on October 22-23, 2018, presented by Conn Maciel Carey LLP and sponsored by the American Fuel and Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API).
What is the Process Safety Summit in Washington, DC?
The Process Safety Summit in Washington, DC will be an annual event featuring a full-day program in Washington, DC gathering interested stakeholders from the chemical, petrochemical, and petroleum refining industries, and other industries with operations impacted by OSHA’s PSM Standard and EPA’s RMP Rule.
The focus of the Process Safety Summit in Washington, DC will be on the process safety regulatory landscape. The full-day Program will cover the PSM/RMP rulemakings, enforcement programs, significant cases, trends through the transition to the new Administration, best practices, and other key process safety regulatory issues impacting Industry.
This Process Safety Summit fills an important gap in Washington, DC. Although there are opportunities for trade groups and employers to interact with key government regulators, none of those opportunities focus on process safety, and the process safety-oriented events that do exist are far from Washington, DC, making it hard to attract more than one senior agency official.
On July 10, 2018, Conn Maciel Carey attorneys Andrew J. Sommer, Eric J. Conn, and Megan S. Shaked presented a webinar: “Key Cal/OSHA Issues that California Employers Must Track.”
The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
Of particular significance, in the coming year, California employers can expect an uptick in Cal/OSHA penalties as result of two significant changes, one adopting higher maximum civil penalty authority, and the other changing how the agency finds and cites violations characterized as Repeat.
During this webinar, participants learned about:
For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) (LOTO) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.
This two-part article lays out:
- [Part 1]: 5 reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
- [Part 2]: 5 common mistakes employers make implementing LOTO requirements.
Part 1 Summary: Five Reasons it is Critical to Get LOTO Right
As we discussed in Part 1 of this two-part article, there are five important OSHA enforcement reasons why it is vital for employers to truly grasp OSHA’s regulatory requirements for lockout/tagout (LOTO) and implement them.
Those 5 reasons are:
- Amputation Injuries Create Special Reporting Obligations
- LOTO Citations are Low Hanging Fruit for OSHA
- OSHA is Actively Pursuing LOTO Violations with a National Emphasis Program
- LOTO Violations Qualify for the Severe Violator Enforcement Program
- LOTO Violations are Among the Most Used for OSH Act Criminal Prosecutions
For a detailed discussion about those reasons, check out Part 1 of this two-part article.
Part 2: Five Common LOTO Mistakes
This part details the five most common mistakes and misunderstandings associated with OSHA’s regulatory requirements for LOTO.
1. Confusion about When the LOTO Standard Applies
Normal production operations are not covered by the LOTO standard. Rather, the requirements of OSHA’s LOTO standard kick in during servicing and/or maintenance, or any production activity that requires an employee to remove or bypass a guard or other safety device, or if an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is performed upon the material being processed. Otherwise, the employer is expected to install and maintain appropriate guards that protect employees as required by 1910.212, OSHA’s machine guarding standard.
While the LOTO and machine guarding standards tend to complement each other—one protects employees during normal production operations (guarding), while the other protects employees during servicing or maintenance (LOTO). Technically, OSHA may not cite the Continue reading
For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.
This two-part article will lay out:
- [Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
- [Part 2]: Five common mistakes employers make when implementing the LOTO requirements.
Part 1: Why it is Critical for Employers to Get LOTO Right
The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.
Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized. Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled. The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.
OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.” OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.
While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.
1. Amputation Injuries Create Special Reporting Obligations
Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA. Continue reading
On June 5, 2018, Jordan B. Schwartz, Eric J. Conn, and Lindsay A. DiSalvo of Conn Maciel Carey, presented a webinar regarding “Joint and Multi-Employer, Independent Contractor, and Temp Labor OSHA and Employment Law Issues.“
Employers’ perceptions about their legal responsibilities for certain workers is not always reality, particularly in the context of oft-changing interpretations of what constitutes an employer-employee relationship. An employer may classify workers as a temp or independent contractor, but that does not mean DOL agrees. At the tail end of the Obama Admin., DOL issued guidance that a majority of workers should be treated as employees, insinuating that in most cases, employers are accountable for the obligations of an employer-employee relationship. However, the Trump Admin. appears is shifting gears. That guidance was withdrawn by new Sec. of Labor Acosta. Congress has also begun to undercut the broad joint-employer standard established by the NLRB in Browning-Ferris, by revisiting language in applicable laws. It remains essential for employers to carefully evaluate employment relationships and their own functions in the multi-employer context.
Even if there is no legal employer-employee relationship, companies may have safety obligations and liability depending on their role at multi-employer worksites or when using temporary workers. Protection of temporary workers was a priority of OSHA in the prior Admin., and the guidance developed in that context remains the current standard for host employers and staffing agencies. OSHA has also stood by its multi-employer policy, though it is being challenged in federal court.
A fascinating jurisdictional tug-of-war has broken out between federal OSHA and a few fed OSHA approved State OSH Programs, in relation to OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule). The E-Recordkeeping Rule requires large employers and smaller employees that operate in certain “high hazard industries” to proactively submit their electronic injury and illness data to OSHA through a special web portal – the Injury Tracking Application (“ITA”).
State Plan Adoption of OSHA’s E-Recordkeeping Rule
When fed OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication. However, because the State Plan states all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new fed OSHA rule.
Most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, ahead of the deadline to submit data the first year of the Rule, but as of the end of 2017, when employers’ 2016 300A data was due to be submitted, eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule. Those states included:
- California (Cal/OSHA);
- Washington (WA DLI, WISHA, or DOSH);
- Maryland (MOSH);
- Minnesota (MNOSHA);
- South Carolina (SC OSHA);
- Utah (UOSH);
- Wyoming (WY OSHA); and
- Vermont (VOSHA).
The delay by these States has primarily been a result of fed OSHA’s numerous announcements that it will soon issue a Notice of Proposed Rulemaking to amend (or rescind) the federal E-Recordkeeping Rule. The State Plans have been reluctant to invest the time and resources to implement their own versions of the rule, only to watch fed OSHA change it, causing the states to have to change their own rules again very soon.
Of those eight states, only Vermont has since finalized its E-Recordkeeping Rule this year, and the other seven remain delinquent in their obligation to adopt the Rule.
Last year, fed OSHA and those eight state plans apparently recognized that only employers in fed OSHA states or State Plan states that had already adopted the E-Recordkeeping rule were required to submit their 300A data to OSHA. This year, however, fed OSHA spoke up about the delinquent states. Continue reading
Conn Maciel Carey LLP, a boutique law firm with national practices in workplace safety (OSHA and MSHA), labor & employment, and litigation, is pleased to announce that Beeta B. Lashkari has joined the firm as an attorney in its Washington, D.C. office.
Ms. Lashkari, a former attorney-investigator at the U.S. Chemical Safety and Hazard Investigation Board (CSB), will advise and represent clients in a wide-range of inspections, investigations, and enforcement actions, including those from the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency, the CSB, and state and local regulators. As one of only four attorney-investigators at the CSB, Ms. Lashkari was involved in several major investigations of chemical accidents.
“Beeta brings a unique array of experience and perspective that will enhance the safety and health law services we provide to employers across all industries, and particularly chemical and petrochemical manufacturers,” said Eric J. Conn, Chair of the firm’s national OSHA practice. “We’ve been busy this year expanding our firm, and Beeta is another superb addition to our already deep bench of OSH law experts.”
Ms. Lashkari will also support the firm’s labor and employment practice group in managing workplace investigations, including Continue reading
The U.S. Court of Appeals for the Second Circuit recently issued an opinion granting OSHA the ultimate leeway to characterize citations as Repeat. The case involved a Repeat excavation-related OSHA citation issued to Triumph Construction Corp. in 2014. OSHA based the Repeat characterization on a prior violation of the same excavation standard confirmed against Triumph from 2009.
Triumph asserted to the OSHRC Administrative Law Judge and to the U.S. Court of Appeals for the Second Circuit that the Repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation (nearly five years) was outside OSHA’s stated Repeat look-back policy in its Field Operations Manual. The OSHA Field Operations Manual in effect in 2014 was the 2009 version, which provided for a three year look-back period to find prior violations to serve as the basis for a Repeat violation.
In a 2016 update to the Fields Operations Manual, the Obama Administration expanded the Repeat look-back period to five-years. Regardless what the FOM said, the Triumph case implicated broader issues of whether OSHA’s policy created an strict statute of limitations for the Repeat look-back and whether OSHA has the authority, on a whim, to change enforcement policies like the Repeat look-back period without rulemaking or legislation.
The ALJ upheld the Repeat citation, and on appeal, the Second Circuit in Triumph Construction Corp. v. Sec. of Labor (Docket No. 16‐4128‐ag, March 14, 2018), held that because neither the OSH Act nor any regulations promulgated under the Act mandate or restrict any look-back time period for Repeat violations, OSHA was not bound by its own stated policy. OSHA has the discretion, in other words, to search an employer’s citation history as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a present “repeat” violation. Continue reading
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.
On February 20, 2018, Eric J. Conn and Aaron R. Gelb of the national OSHA Practice Group at Conn Maciel Carey presented a webinar: “Unlock The Mysteries of OSHA’s Lockout/Tagout Standard.”
OSHA’s Lockout/Tagout (Energy Control) Standard is always one of OSHA’s most frequently cited standards, and now, with the “Amputations National Emphasis Program” raging on into 2018, as well as LOTO violations continuing to be considered “high emphasis hazards” to qualify employers into the dreaded Severe Violator Enforcement Program, it is critical for employers to get Lockout/Tagout right. While LOTO continues to be an important standard, it also continues to be one of the least understood standards. This webinar will highlight the Top 10 most misunderstand and frequently cited aspects of the LOTO rule, and forecast some potential changes to the rule and OSHA’s enforcement of it.
As of January 2, 2018, civil penalties for workplace safety and health violations issued by federal OSHA increased again by 2% across the board. Although a 2% increase does not shock the system, this increase is part of a program that has resulted in OSHA’s civil penalty authority nearly doubling since 2016.
History of Civil Penalty Adjustments
As I sit here this afternoon wondering if the government will shut down over disputes about immigration and healthcare, I am reminded of a time just a couple of years ago, in late 2015, when we were again on the verge of a government shutdown over abortion rights and deficit spending. That shutdown was averted thanks to a backroom deal between outgoing Speaker of the House John Boehner and President Obama, which ultimately took the form of the Bipartisan Budget Act of 2015. That “kick the can down the road” measure included a controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor. It was called the “Federal Civil Penalties Inflation Adjustment Improvements Act,” and it mandated that executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties.
On June 30, 2016, the Department of Labor issued its Interim Final Rule to implement the Civil Penalty Inflation directive. OSHA’s civil penalty authority had been stagnant for as long as any other agency, not having been increased for 25 years (since 1990), so this “catch-up” penalty increase for OSHA was the most significant. Indeed, following the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by the same percentage increase as the growth from the 1990 Consumer Price Index – Urban (CPI-U) to the October 2015 CPI-U, which was nearly 80%:
In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, OSHA’s Interim Final Rule, the Federal Civil Penalties Inflation Adjustment Improvements Act also required Continue reading
Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.
“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner. “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law. We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”
Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship. Aaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.
“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice. “We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”
Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country. In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.
Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond. I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field. At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries. While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”
Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.
Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”
Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability. Continue reading
The ball has dropped, the confetti has been swept out of Times Square, and 2017 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, the question on everyone’s mind (well, maybe just OSHA nerds like us), is what can we expect from OSHA in the first full year of the Trump Administration?
In this webinar event, attorneys from the national OSHA Practice Group at Conn Maciel Carey reviewed OSHA enforcement, rulemaking, and other developments from 2017, and discussed the Top 10 OSHA Issues employers should monitor and prepare for in the New Year. During this webinar, participants learned:
- 2017 OSHA enforcement data and trends, and the future of OSHA enforcement
- The Top 10 OSHA issues employers should track in 2018
- Rulemaking and de-regulatory developments and predictions
- Status/future of the roll-out of Pres. Trump’s De-Regulatory Agenda
- Other significant OSHA policy issues to track in the New Year