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

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 11th and 12th), asking the DC Circuit to bring the case out of abeyance and set a quick schedule.  The petitions brief requesting to revive the case under a scheduling order notes that Continue reading

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

By Eric J. Conn and Beeta B. Lashkari

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

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

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

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

By Eric J. Conn and Beeta B. Lashkari

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

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

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

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

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

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

Inspections Begin Under OSHA’s Local Emphasis Program for Food Manufacturers in Illinois and Ohio

By Aaron R. Gelb and Ashley Mitchell

Inspections have commenced in Illinois and Ohio under the the Local Emphasis Program (LEP) focusing on food manufacturers OSHA announced in October 2022.  This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V over the past two years dealing with exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022.  General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well.  A similar LEP targeting Wisconsin food manufacturers, with the primary difference being the NAICS Codes on which the two LEPs, began last Spring.  To date, OSHA has opened 12 inspections, but citation data is not yet available for those inspections.  Both LEPs mandate an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.

Why Is OSHA Targeting the Food Manufacturing Industry? Continue reading

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

By Beeta B. Lashkari and Eric J. Conn

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

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

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

Cal/OSHA COVID-19 Non-Emergency Rule Is Adopted

By Megan S. Shaked and Andrew J. Sommer

On December 15, the California Occupational Safety and Health Standards Board voted 6-1 to adopt the COVID-19 Prevention Non-Emergency Regulations. The Non-Emergency Rule was proposed to replace the Cal/OSHA COVID-19 Emergency Temporary Standard, which has been in effect in four different versions since November 30, 2020 and is set to expire on December 31, 2022.

The Office of Administrative Law will now review the new regulation, which is expected to be formally approved, effective January 1, 2023.

Discussion from the Standards Board Meeting

During the meeting, stakeholders provided public comments on the proposed Non-Emergency Rule.  During the public comment period, Conn Maciel Carey spoke on behalf of the California Employers COVID-19 Prevention Coalition, composed of a broad array of California employers and trade groups substantially impacted by Cal/OSHA’s COVID-19 rulemaking. We urged the Board to vote “no” on the proposal, highlighting the availability of vaccinations, testing and treatment and the inflexibility of the two-year fixed term. We also Continue reading

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

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

MidYear Review of OSHA Developments

Thursday, July 20th

Annual Cal/OSHA Update

Thursday, February 16th

OSH State Plan Update

Thursday, August 10th

Responding to Whistleblower Complaints

Tuesday, March 21st

Powered Industrial Trucks

Thursday, September 14th

Repeat, Willful, Egregious and SVEP

Thursday, April 13th

Investigations and Audit Reports

Thursday, October 5th

OSHA Rulemaking Update

Thursday, May 18th

OSHA’s PSM Standard & EPA’s RMP Rule

Tuesday, November 14th

Preparing for OSHA Inspections

Thursday, June 8th

Combustible Dust

Thursday, December 7th

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

Continue reading

[Webinar] Process Safety Update: The Latest with OSHA PSM & EPA RMP

On Tuesday, December 13, 2022 at 1 p.m. EST, join us for a webinar in Conn Maciel Carey’s 2022 OSHA Webinar Series regarding a Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Presented by:
Eric ConnMicah Smith, and Beeta Lashkari
of Conn Maciel Carey’s OSHA Practice Group

And Special Guest Clyde Trombettas
(former head of Cal/OSHA’s PSM Unit)

Nearly two full years in, and the Biden Administration has been making its mark in the process safety arena, rolling back the rollbacks of the RMP Rule promulgated during the Obama Administration, and dusting off the PSM reform rulemaking that had begun at that same time. The CSB has also been changing the process safety landscape with new guidance about its Accidental Release Reporting Rule and other investigation activities.

We are also pleased to announce that we will be joined by a special guest co-presenter, Mr. Clyde Trombettas. Mr. Trombettas recently-retired from Cal/OSHA as the Program Manager for Cal/OSHA’s Process Safety Management Unit. He will be providing an update regarding Cal/OSHA’s PSM team, enforcement trends, and other PSM regulatory developments.

This process safety regulatory update will: Continue reading

Michigan OSHA Enforcement and Regulatory Update [Webinar Recording]

On Wednesday, November 30, 2022, Anthony Casaletta and Eric Conn presented a special bonus webinar in Conn Maciel Carey’s 2022 OSHA Webinar Series regarding a Michigan OSHA Enforcement and Regulatory Update.

Presented by
Anthony M. Casaletta and Eric J. Conn

We are pleased to announce that CMC’s newest addition, Tony Casaletta, a former Michigan OSHA (MIOSHA) Official who has just joined the firm as Of Counsel, led our very first MIOSHA update. Prior to joining the firm, Tony spent 18 years with MIOSHA in various roles, working his way up to Health Supervisor for the MIOSHA Construction Safety and Health Division.  Through his tenure at MIOSHA, Tony specialized in industrial hygiene enforcement in both general industry and construction, managed the MIOSHA Asbestos Program, and oversaw the enforcement activities of MIOSHA’s Construction field industrial hygienists throughout the state of Michigan. In addition, Tony worked as an adjunct professor at Wayne State University where he taught in the University’s Industrial Hygiene graduate program.

Tony was joined by the firm’s OSHA Chair, Eric J. Conn, also a proud member of the Michigan Bar. The two OSHA-specialist attorneys provided an overview of MIOSHA’s enforcement program, the latest data and trends in MIOSHA enforcement, and other MIOSHA issues for employers to monitor.

During this webinar, participants learned about: Continue reading

[Bonus Webinar] Michigan OSHA Enforcement and Regulatory Update

On Wednesday, November 30, 2022, at 1 p.m. EST, join us for a special bonus webinar in Conn Maciel Carey’s 2022 OSHA Webinar Series regarding a Michigan OSHA Enforcement and Regulatory Update.

Presented by
Anthony M. Casaletta and Eric J. Conn

We are pleased to announce that CMC’s newest addition, Tony Casaletta, a former Michigan OSHA (MIOSHA) Official who has just joined the firm as Of Counsel, will be leading our very first MIOSHA update. Prior to joining the firm, Tony spent 18 years with MIOSHA in various roles, working his way up to Health Supervisor for the MIOSHA Construction Safety and Health Division.  Through his tenure at MIOSHA, Tony specialized in industrial hygiene enforcement in both general industry and construction, managed the MIOSHA Asbestos Program, and oversaw the enforcement activities of MIOSHA’s Construction field industrial hygienists throughout the state of Michigan. In addition, Tony worked as an adjunct professor at Wayne State University where he taught in the University’s Industrial Hygiene graduate program.

Tony will be joined by the firm’s OSHA Chair, Eric J. Conn, also a proud member of the Michigan Bar. The two OSHA-specialist attorneys will provide an overview of MIOSHA’s enforcement program, the latest data and trends in MIOSHA enforcement, and other MIOSHA issues for employers to monitor.

During this webinar, participants will learn about: Continue reading

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

By Conn Maciel Carey’s COVID-19 Task Force

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

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

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

Preventing and Responding to Workplace Violence [Webinar Recording]

On Tuesday, October 11, 2022, Kara M. MacielLindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, presented a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized serious hazards, and OSHA has instituted enforcement actions under its General Duty Clause after incidents of workplace violence. OSHA has also initiated a rulemaking to address workplace violence in specific industries. For its part, the EEOC has also prioritized ways to effectively prevent and address workplace violence, particularly in the form of workplace harassment. And outside of OSHA and the EEOC, employers can also be held liable for workplace violence through other claims such as negligent hiring and supervision.

In this webinar, attendees learned: Continue reading

[Webinar] Preventing and Responding to Workplace Violence

On Tuesday, October 11, 2022 at 1 p.m. EST, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, will present a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to Continue reading

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

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

Cal/OSHA Moves Closer to Issuing Its COVID-19 Non-Emergency Standard

By Andrew Sommer and Megan Shaked

In July 2022, the California Division of Occupational Safety and Health (Cal/OSHA) revealed a proposed Permanent COVID-19 regulation. The draft permanent rule is intended to replace the current version of the COVID-19 Emergency Temporary Standard (ETS) that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.

On July 29, 2022, the Standards Board issued a rulemaking notice that set both the date for a meeting of the Standards Board when the proposed COVID-19 permanent rule would be debated and discussed, as well as an official due date for written comments from interested stakeholder.  Both of those were yesterday, September 15, 2022.  A vote on a proposed final rule is expected in late November or December, with the rule replacing the ETS and going into effect on January 1, 2023 and continuing through December 2024.

Background about the Proposed Permanent Rule

The proposed non-emergency rule (commonly referred to as the permanent rule) would apply until 2 years after effective date, with recordkeeping requirements applying until 3 years after effective date.  The most significant expansion in the proposal is the incorporation of the controversial new definition of “close contact” from the California Department of Public Health, which now means Continue reading

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

By Eric J. Conn and Ashley D. Mitchell

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

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

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

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

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

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

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

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

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.

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 will learn about: Continue reading

CDC Updates Its COVID-19 Guidance – But Still No Word From OSHA

By Conn Maciel Carey’s COVID-19 Task Force

Thankfully, it has been quite a while since there has been a material update to discuss on the COVID-19 front.  Except for those of you in the healthcare space, things continue to be pretty quiet at OSHA on that front, but as I am sure you all have seen, a week ago, on August 11th, the CDC updated some of its COVID-19 guidance in a way that probably affects many employers’ COVID-19 protocols. 

The CDC’s new guidance, entitled Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems, scales back prior onerous recommendations for COVID-19 prevention strategies based on an acknowledgement in the guidance document that:

“with so many tools available to use for reducing COVID-19 severity, there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.”

However, how the new guidance maps to workplaces is not a simple analysis.  As has been the case throughout the pandemic, trying to apply CDC’s guidance to general industry workplaces, when it is actually written for the general public or for specific sectors (most often public health agencies and healthcare) is not always intuitive, and often leads to conflicting and impossible outcomes.  Of course, that’s where OSHA is supposed to come in; i.e., to take CDC’s general guidance and explain for employers how it should apply in private industry workplaces.  But OSHA has not kept up with its duty in that regard.  Indeed, despite promises for more than five months that updated COVID-19 guidance was coming “soon,” OSHA has not chimed in about how it expects employers to map CDC’s general public guidance to the workplace since before the Delta variant struck.  So with that vacuum, here is our best take on the CDC’s updated guidance.

What Does CDC’s Updated COVID-19 Guidance Change?  Continue reading

A Deep Dive Into Periodic Lockout/Tagout Inspections [Webinar Recording]

On August 17, 2022, Aaron R. Gelb and special guest, Tabitha Thompson, presented a webinar regarding A Deep Dive Into Periodic Lockout/Tagout Inspections.

Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar took a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.

Participants in this webinar learned about: Continue reading

Local Emphasis Program for Food Manufacturers in Wisconsin

By Aaron R. Gelb and Darius Rohani-Shukla

Earlier this year, in April, OSHA launched a Local Emphasis Program (LEP) in Wisconsin focused on food manufacturers.  This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V last year focusing on exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022.  General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well.  Meanwhile, we have been told to expect a similar LEP targeting Illinois food manufacturers, with the primary difference being the NAICS Codes on which that LEP will focus.  While we have not yet seen the Illinois LEP targeting food processing establishments, we expect both programs will involve an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.

Why Is OSHA Targeting the Food Manufacturing Industry?

After examining data from the Bureau of Labor Statistics (BLS) for Wisconsin employers with a primary North American Industry Classification (NAICS) code in the 311xxx range, OSHA determined that food manufacturing industry injuries occurred at higher rates than found in other sectors. In OSHA’s view, the data demonstrates higher rates of total reportable cases; cases involving days away from work, job restriction or transfers, fractures, amputations, cuts, lacerations, punctures, heat burns, chemical burns, and corrosions. As such, OSHA’s stated goal in launching this LEP is to encourage employers to identify, reduce, and eliminate hazards associated with exposure to machine hazards during production activities and off-shift sanitation, service, and maintenance tasks.

Which Employers Will Be Targeted? Continue reading

[Webinar] A Deep Dive Into Periodic Lockout/Tagout Inspections

On Wednesday, August 17, 2022 at 1 p.m. EST, join Aaron R. Gelb and Beeta B. Lashkari for a webinar regarding A Deep Dive Into Periodic Lockout/Tagout Inspections.

Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar will take a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.

Participants in this webinar will learn about: Continue reading

Regional Emphasis Program for Warehousing Operations

On August 3, 2022, OSHA announced a new Regional Emphasis Program (“REP”) focused on warehousing and inside or outside storage and distribution yards in Pennsylvania, Delaware, Maryland, Virginia, West Virginia, and the District of Columbia, including those located at federal agencies, and federal installations in Region III’s jurisdiction.  Covered employers in these states would be well-advised to dust off their copy of Conn Maciel Carey LLP’s OSHA Inspection Toolkit and take the necessary steps to ensure they are ready for the inspections that will begin before the end of the year.

Why Is OSHA Targeting Warehousing Operations?

In the REP and accompanying press release, OSHA explains it is seeking to reduce injury/illness rates in the warehousing industry by conducting comprehensive inspections to address hazards that may include those associated with powered industrial trucks, lockout tagout, life safety, means of egress, and fire suppression.  OSHA further explains in the REP that while the rate of total recordable case rate for all private industry was 2.7 cases per 100 full-time workers, the rates for the industries included in this REP were 3.5 for beverage manufacturing; 4.8 for warehousing and storage; 4.0 for food and beverage stores; 4.3 for grocery wholesalers; and 5.5 for beer, wine, and alcoholic beverage wholesalers.

The REP calls out the potentially serious hazards involved in Continue reading

OSHA’s Heat Illness Rulemaking Update – Recent NACOSH Meetings

By Eric J. Conn and Beeta B. Lashkari

OSHA’s rulemaking for an outdoor and indoor heat illness prevention rule continues to chug along, so we wanted to provide a quick review of the latest developments.  Of particular note, two meetings of the National Advisory Committee on Occupational Safety & Health (NACOSH) focused on heat illness and the heat illness rulemaking were held on June 30th.  Conn Maciel Carey’s Employers Heat Illness Prevention Coalition participated in both. 

Here is a copy of the as-filed comments we submitted to OSHA in advance of these NACOSH meetings, reiterating our previously submitted comments, and requesting to speak at the June 30th NACOSH meeting (which request was granted).

The meetings were well attended by NACOSH committee members and OSHA staff, and included appearances from Andy Levinson (Acting Director, OSHA Directorate of Standards and Guidance), Lisa Long (Acting Deputy Director, OSHA Directorate of Standards and Guidance), Carla Marcellus (Office of Maritime and Agriculture), and Jennifer Levin (Committee Counsel, Office of the Solicitor).  Kate McMahon and Beeta Lashkari attended on behalf of our Coalition.  The first meeting was for public listening only, and Kate was one of only two public stakeholders who spoke at the second meeting, and the only employers’ representative to do so.

Here are the key takeaways from the two meetings, as well as a summary of the public statements we made to the NACOSH committee:  Continue reading

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

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

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

Here is a summary of his observations.

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

  1. Published a notice of proposed regulation to expand its Electronic Recordkeeping Rule;
  2. Initiated an enforcement National Emphasis Program to address Heat Illness; and
  3. Launched rulemaking for an Outdoor and Indoor Heat Illness Prevention standard.

OSHA’S Rulemaking to Expand the E-Recordkeeping Rule

OSHA’s Standard To Improve Tracking of Workplace Injuries and Illnesses (aka, the E-Recordkeeping Rule) has experienced Continue reading

[Webinar] Evacuating the Workplace: Exit Routes and Exit Doors

On Wednesday, June 8, 2022 at 1 p.m. ET, join Lindsay A. DiSalvo, Micah Smith and Dan Deacon for a webinar regarding Evacuating the Workplace: Exit Routes and Exit Doors.

Evacuating the workplace during an emergency is critical. However, consistently maintaining compliant exit access, routes, and doors in a busy workplace is often challenging, especially in warehouses, manufacturing facilities, and retail settings. OSHA routinely cites egress violations as Serious because of the potential for injury or death. It is an easy violation for inspectors to identify during on-site inspections, which often leads to the issuance of costly Repeat or Willful citations.

Temporary or permanent storage of materials can create several compliance issues related to OSHA’s egress requirements, but there are several ways to maintain compliant exit routes and doors and ensure that they are always accessible. Identifying and maintaining egress routes and exits is an important element of a workplace’s emergency action plan. Employers should carefully develop emergency action plans and ensure employees understand not only how to evacuate the workplace during an emergency but how to maintain proper egress routes and exits throughout their work shifts, as it provides employees with a safer workplace and may even save lives.

Participants in this webinar will learn about: Continue reading