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

September 25, 2023Kate M. McMahon Leave a comment

By Kate M. McMahon and Darius Rohani-Shukla

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

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

OSHA Launches Enforcement National Emphasis Program Targeting Warehouses, Distribution Centers and High-Risk Retailers

July 14, 2023July 26, 2023Eric J. Conn 2 Comments

By Eric J. Conn and Darius Rohani-Shukla of Conn Maciel Carey LLP’s National OSHA Practice

On July 13, 2023, OSHA announced a new enforcement National Emphasis Program focused on Warehousing and Distribution Center Operations. The new NEP was signed-off by the Head of OSHA a month ago – on June 14, 2023 – so it became effective as of July 13, just as the public was first learning about it. We have combed through the Directive for OSHA’s new Warehouses NEP and identified the following key information that warehouse operators and retailers need to know.

What motivated OSHA to Launch the Warehouses NEP?

Over the last ten years, warehousing and distribution centers have experienced tremendous growth, with the number of estimated employees in that industry nearly tripling from 2011 to 2021. As part of that growth, the injury and illness rate in that space has also dramatically increased. Specifically, OSHA’s perspective is that this NEP is warranted because of Bureau of Labor Statistics (BLS) data that shows that injury and illness rates for the establishments covered by the NEP are significantly higher than the overall industry average. As a result, OSHA’s new Warehouses NEP is tailored to address the hazards in those workplaces that OSHA deems as posing the most safety and health hazards.

The Assistant Secretary of Labor for OSHA, Doug Parker, had this to say about the new Warehouses NEP:

“Our enforcement efforts are designed to do one thing: lead to permanent change in workplace safety. This emphasis program allows OSHA to direct resources to establishments where evidence shows employers must be more intentional in addressing the root causes of worker injuries and align their business practices with the goal to ensure worker health and safety.”

What Employers are covered by this NEP?

This NEP targets warehouse-related industries as identified by seven NAICS codes, as well as a set of “high-injury retail establishments,” as identified by five NAICS codes. Here are the specific warehouse industry segments covered by the NEP:

The so-called “high-injury rate retail establishments” are a subset of the retail industry with particularly high industry average DART rates; i.e., high rates of injuries and illnesses that cause days away from work, restricted duty, or job transfer. They were included because OSHA believes they present the same or similar hazards as warehousing and distribution facilities, particularly in loading and storage areas. Here are the specific retail industry segments covered by this NEP: Continue reading →

10 Reasons Why It Is Critical For Employers To Get OSHA Injury and Illness Recordkeeping and Reporting Right — And How to Ensure It is Done Right

June 16, 2023June 15, 2023Eric J. Conn 1 Comment

By Eric J. Conn and Lindsay A. DiSalvo

Although OSHA injury and illness recordkeeping and reporting has always been important from an OSHA compliance perspective, making correct recording and reporting decisions (i.e., not over- or under- recording or reporting) has never been more vital than it is today. We are at a moment in OSHA’s history when the agency is clearly staffing up and ramping up inspections and enforcement generally, and with respect to injury and illness recordkeeping specifically, OSHA is on the precipice of issuing a significant expansion of the injury and illness data required to be submitted to OSHA each year. Indeed, OSHA sent the final Electronic Recordkeeping Rule to OMB for final review, which is the last step in the rulemaking process before the rule is published.

OSHA developed and repeatedly touted its injury and illness recordkeeping program as a “no fault” system, requiring certain injuries and illnesses to be recorded (or proactively reported to OSHA), regardless whether the employer or its safety program could have prevented the injury. In practice, however, recordkeeping data has become another tool OSHA uses to justify enforcement efforts and actions against specific employers or their industries. From publicizing recordkeeping data to “shame” employers, or using the data to target enforcement resources, OSHA has made it essential for employers not to over-record cases; i.e., they must carefully scrutinize each potential recordable injury or illness, rather than erring on the side of recording every close call. Of course, there are also real and growing enforcement risks for under-recording; i.e., failing to record or report cases that should have been recorded or reported.

Accordingly, it is more important than ever before to make sure your organization fully understands the nuances of OSHA’s recordkeeping and reporting requirements.

Here is our take on the Top 10 reasons it is critical for employers to get OSHA injury and illness recordkeeping and reporting right (not recording or reporting more cases than necessary, and not failing to record or report cases that should be):

1. OSHA’s Electronic Recordkeeping, which puts previously internal data now in OSHA’s hands and on its public website, is about to expanded significantly.

As a result of OSHA’s E-Recordkeeping rule, employers’ injury and illness data is now published on OSHA’s public website. Unfortunately, because OSHA’s injury and illness recordkeeping program was designed to Continue reading →

Third Circuit Applies Narrow Reading of the OSH Act’s Private Right of Action

June 8, 2023June 8, 2023Eric J. Conn Leave a comment

By Megan Shaked and Eric Conn

In a case of first impression, the United States Court of Appeals for the Third Circuit held that a limited private right of action included in the Occupational Safety and Health Act of 1970 (the OSH Act) is very narrow and it does not continue after the Department of Labor completes its enforcement proceedings.

The OSH Act does not provide employees or other interested parties with a private right of action against employers to enforce OSHA standards or OSH Act requirements against employers, but it does, in very limited circumstances, allow employees to sue OSHA for the agency’s failure to address workplace safety concerns under. Historically, employees’ role in OSHA enforcement is just to observe workplace safety violations and lodge anonymous complaints with OSHA, requesting that OSHA conduct an inspection. OSHA then makes its own independent determination whether there are grounds for safety violations; i.e., whether to issue citations.

One area where employees have a slightly more power is in the context of imminent dangers. OSHA has authority under the OSH Act, when it identifies an imminent danger (or is informed of an imminent danger by a whistleblower-employee), to seek injunctive relief to promptly address the danger or stop work at the workplace. In this rare circumstance—where the risk of danger in the workplace is “imminent”—employees can attempt to force their employers’ and OSHA’s hands by Continue reading →

OSHA Launches New National Emphasis Program Focused on Fall Hazards

May 10, 2023Beeta B. Lashkari Leave a comment

By Beeta Lashkari, Mark Ishu, and Kimberly Richardson

On May 1, 2023, OSHA announced the launch of a new National Emphasis Program (“NEP”) focused on preventing fall hazards in general industry and construction, the leading cause of fatal workplace injuries and the violation that the agency cites most frequently in construction industry inspections. The Falls NEP was signed April 24, 2023, and took effect the same day as OSHA’s announcement, on May 1, 2023.

It may have been that the Falls NEP was a long time coming. Per OSHA’s announcement, the NEP is based on historical Bureau of Labor Statistics (“BLS”) data and OSHA enforcement history. For example, data from BLS shows that, of the 5,190 fatal workplace injuries in 2021, 680 were associated with falls from elevations, about 13 percent of all deaths. Additionally, data from OSHA’s annual enforcement report indicates that, of 24,333 total inspections in 2021, 7,954 had an emphasis on falls, or about 33% of all inspections.

With regard to the new Falls NEP, Assistant Secretary of Labor for OSHA Doug Parker said:

“Considering that falls remain the leading cause of fatalities and serious injuries in all industries, the agency has determined that an increase in enforcement and outreach activities is warranted…. This national emphasis program aligns all of OSHA’s fall protection resources to combat one of the most preventable and significant causes of workplace fatalities.”

OSHA’s goal of significantly reducing or eliminating unprotected worker exposures to fall-related hazards in all industries that can result in serious injuries and deaths will be accomplished by a combination of enforcement (which includes hazard-based inspection targeting and optional locally-generated programmed targeting in construction as outlined in the Falls NEP’s Appendix A), outreach to employers, and compliance assistance.

Who is Covered by the Falls NEP?

The Falls NEP is meant to focus on reducing or eliminating fall-related injuries and fatalities for people working at heights in all industries. Although OSHA anticipates that most inspections under the Falls NEP will occur in construction because the majority of fatal falls to lower levels each year occur on construction worksites, it is important to note that the Falls NEP is not limited to construction.

Indeed, and importantly, the Falls NEP provides that Compliance Safety and Health Officers (“CSHO”) are authorized Continue reading →

NACOSH Heat Work Group Meeting and the Next Phase of OSHA’s Heat Illness Rulemaking

April 25, 2023April 25, 2023Beeta B. Lashkari Leave a comment

By Eric J. Conn, Kate M. McMahon and Beeta B. Lashkari

On March 20^th OSHA announced that it will hold a virtual meeting of the Heat Working Group (“Working Group”) of the National Advisory Committee on Occupational Safety and Health (“NACOSH”) for later this week – on Thursday, April 27, 2023. We expect the Working Group presentation to include specific recommendations on potential elements of a Heat Injury and Illness Prevention standard. The full NACOSH committee will meet a little later, sometime in May (date TBD), likely to receive and vote on the recommendations of the Heat Working Group about a potential heat illness standard. NACOSH recommendations typically carry great weight with OSHA, and we expect OSHA will most certainly give them serious consideration. Indeed, we believe OSHA has delayed the start of its SBREFA process so that it can utilize the NACOSH recommendations in formulating the rulemaking package for participants in the SBREFA (more on that below). Accordingly, these Spring NACOSH meetings will be a major milestone in OSHA’s rulemaking process, as the recommendations from NACOSH are expected to set the foundation for OSHA to develop its proposed rule.

The April meetings also will be our first opportunity to get a real glimpse at the outline and terms of what a proposed Heat Injury and Illness Prevention rule will look like. On behalf of our Coalition, Conn Maciel Carey has registered to join the April meeting (and, once the date is confirmed and announced by OSHA, will register to the join the May meeting, as well). We will share an update on what we learn following each meeting.

As a brief recap, OSHA initiated its rulemaking on “Heat Injury and Illness Prevention in Outdoor and Indoor Settings” on October 27, 2021, when OSHA published an Advance Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register. Comments on the ANPRM were due January 26, 2022. NACOSH has played an important role Continue reading →

Updates about OSHA’s Egregious Enforcement and Severe Violator Enforcement Program [Webinar Recording]

April 17, 2023April 14, 2023Theresa Green Leave a comment

On Thursday, April 13, 2023, Eric Conn and D arius Rohani-Shukla presented a webinar regarding Updates about OSHA’s Egregious Enforcement and SVEP.

OSHA violations characterized as Repeat or Willful can now carry penalties as high as $156,259 per citation. You may be wondering, however, what exactly leads OSHA to characterize a violation as Repeat or Willful, and why are they important beyond their high-dollar cost? No doubt, you heard that OSHA changed the Severe Violator Enforcement Program (SVEP) in September 2022, making it easier to place employers into the program and saddle them with all the negative consequences associated with it even though the citations which prompted the referral are not yet final orders. Raising the stakes even higher, OSHA announced changes to its “Instance-By-Instance” or “Egregious” enforcement policy in January 2023 that will undoubtedly lead to a significant increase in the number of multi-million-dollar enforcement actions.

This webinar explained the legal standard for Repeat, Willful and Egregious violations, the potential consequences for receiving them, and how OSHA’s enforcement policies have resulted in a significant increase in the frequency with which we see these aggravated characterizations.

Participants in this webinar learned: Continue reading →

OSHA Announces VPP Modernization Project

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

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

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

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

Nonetheless, OSHA states that: Continue reading →

OSHA’s Local Emphasis Program for Midwest Food Manufacturers [Webinar Recording]

March 7, 2023Theresa Green Leave a comment

On Wednesday, March 1, 2023, Conn Maciel Carey hosted a special bonus webinar in our 2023 OSHA Webinar Series regarding OSHA’s LEP for Midwest Food Manufacturers.

Presented by
Conn Maciel Carey LLP with Special Guest

Steve Hawkins
(Former Head of Tennessee OSHA)

OSHA is now conducting inspections in Illinois (and Ohio) as part of a new Local Emphasis Program (LEP) for the Food Manufacturing Industry announced in late 2022. This LEP empowers Illinois OSHA offices to inspect food manufacturing and processing sites with a focus on machine guarding hazards, the employer’s hazardous energy control program, and the sanitation program (hazard communication and Group LOTO). OSHA has the ability under this LEP to conduct inspections for all referral and complaints, formal or non-formal, which contain allegations of potential worker exposure to serious hazards associated with operating food production machinery or performing service, maintenance, and sanitation tasks on food processing and ancillary equipment.

Establishments can be selected for an inspection even if they have an exemplary safety record, have not been the subject of any complaints, and have not recently reported a serious incident. This discussion covered what to expect and how to prepare your company for an OSHA inspection.

Attendees heard directly from FDR Safety’s Steve Hawkins, former Head of Tennessee OSHA, and Aaron Gelb, Head of Conn Maciel Carey’s Midwest OSHA Practice. Together they answered the following questions: Continue reading →

[Webinar] OSHA’s Local Emphasis Program for Midwest Food Manufacturers

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

On Wednesday, March 1, 2023 at 10 a.m. CST / 11 a.m. EST, join us for a special bonus webinar in Conn Maciel Carey’s 2023 OSHA Webinar Series regarding OSHA’s LEP for Midwest Food Manufacturers.

Presented by
Conn Maciel Carey LLP with Special Guest

Steve Hawkins
(Former Head of Tennessee OSHA)

Establishments can be selected for an inspection even if they have an exemplary safety record, have not been the subject of any complaints, and have not recently reported a serious incident. Join us for this discussion about what to expect and how to prepare your company for an OSHA inspection.

Attendees will hear directly from FDR Safety’s Steve Hawkins, former Head of Tennessee OSHA, and Aaron Gelb, Head of Conn Maciel Carey’s Midwest OSHA Practice. Together they will answer the following questions: Continue reading →

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

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

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

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

Participants in this webinar learned: Continue reading →

OSHA Expands “Instance by Instance” Citation Policy: A Game Changer for OSHA Enforcement

February 6, 2023February 6, 2023Eric J. Conn Leave a comment

By Eric J. Conn and Darius Rohani-Shukla

On January 26, 2023, OSHA revealed to the public two enforcement memoranda that it had issued to its field offices and all of the State OSH Plans that will substantially sharpen OSHA’s enforcement teeth and increase the pain OSHA can inflict on employers across the country. Specifically, OSHA dramatically expanded the circumstances when it can issue “instance-by-instance” citations to employers, and also discouraged the grouping of similar citations under a single penalty.

Instance-by-Instance (IBI), or per-instance enforcement is one of OSHA’s most powerful tools to ratchet up civil penalties. It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties; i.e., train each employee, guard each machine, require a hard hat for each employee, etc. As a result, rather than a single citation with a single penalty for an employers’ failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.

Historical Per-Instance Enforcement

OSHA’s IBI enforcement policy was first memorialized in 1990 in an enforcement directive called “Handling of Cases to be Proposed for Violation-By-Violation Penalties.” This policy came to be known as OSHA’s Egregious Enforcement Policy because OSHA’s policy was to use it only in circumstances involving conduct found by OSHA to be worse than just willful. Specifically, under this long-standing willful-plus standard, OSHA issued per-instance citations when violations were found both to be willful and also to meet one of the following criteria: Continue reading →

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

February 2, 2023February 1, 2023Eric J. Conn 1 Comment

By Dan C. Deacon and Eric J. Conn

We have a quick update for you about OSHA’s rulemaking to expand the Electronic Recordkeeping Rule. Throughout the last year, OSHA’s intent to finalize this rule ahead of the next deadline for employers to submit E-Recordkeeping data (i.e., well ahead of March 2023) was clear, but that will not be the case. OSHA delayed finalizing the proposed revisions to the E-Recordkeeping Rule several times. The delays have now prompted further litigation by a pro-worker activist group in furtherance of a challenge initiated during the Trump Administration to the rollback of the E-Recordkeeping rule by Trump’s OSHA early in his term.

The challenging groups are resuming their 2019 lawsuit (State of New Jersey, et al., v. Walsh) because the Biden Administration recently moved its target date for finalizing the updated rule from pre-March 2023 to June 2023, arguing that OSHA’s “pattern of reneging on its agreements” means litigation is the only sure path to resolve their claims. OSHA had previously signaled that the rule would be finalized by March 2023 in its Fall 2022 regulatory agenda, but OSHA’s counsel recently informed the petitioners and the Court that OSHA would not make that commitment by at least three months. A short time later, the petitioners filed a couple of briefs with the U.S. Court of Appeals for the District of Columbia Circuit earlier this month (on January 11^th and 12^th), asking the DC Circuit to bring the case out of abeyance and set a quick schedule. The petitions brief requesting to revive the case under a scheduling order notes that Continue reading →

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

January 27, 2023January 26, 2023Eric J. Conn 1 Comment

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 10^th, 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 10^th 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

January 19, 2023January 19, 2023Eric J. Conn Leave a comment

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 3^rd
- Retailers / Retail Pharmacies: Wednesday, January 4^th
- Manufacturers w/ Medical Clinics: Thursday, January 5^th

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

January 9, 2023Aaron Gelb Leave a comment

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

December 21, 2022December 21, 2022Eric J. Conn 1 Comment

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

December 19, 2022Theresa Green Leave a comment

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!

December 16, 2022December 16, 2022Eric J. Conn Leave a comment

ANNOUNCING CONN MACIEL CAREY LLP’S
2023 OSHA WEBINAR SERIES

Two years into the Biden Administration, with senior political leadership now firmly entrenched at federal OSHA, the agency is making good on its promise to “use all of the tools available” in its regulatory and enforcement toolbox to protect workers. In part, that has taken the form of increasingly aggressive enforcement (more inspections, more significant penalties, etc.), hiring more compliance officers, launching new special emphasis enforcement programs, and expanding its enforcement policies like its Severe Violator Enforcement Program. It has also taken the form of a broad-based rulemaking agenda that includes work on a new heat illness rule, pushing out a permanent COVID-19 standard for healthcare, expanding its E-Recordkeeping requirements, among other high priority rulemakings.

Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA. To help you do so, Conn Maciel Carey LLP is pleased to present our complimentary 2023 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-specialist attorneys in the firm’s national OSHA Practice Group. The webinar series is designed to arm employers with the insight into developments at OSHA that they need during this period of unpredictability and significant change.

To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2023 series, click here to send us an email request so we can get you registered. If you missed any of our programs over the past eight years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings. If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.

2022 Year in Review and 2023 Forecast

Thursday, January 26th

Mid–Year Review of OSHA Developments

Thursday, July 20^th

Annual Cal/OSHA Update

Thursday, February 16^th

OSH State Plan Update

Thursday, August 10^th

Responding to Whistleblower Complaints

Tuesday, March 21^st

Powered Industrial Trucks

Thursday, September 14^th

Repeat, Willful, Egregious and SVEP

Thursday, April 13^th

Investigations and Audit Reports

Thursday, October 5^th

OSHA Rulemaking Update

Thursday, May 18^th

OSHA’s PSM Standard & EPA’s RMP Rule

Tuesday, November 14^th

Preparing for OSHA Inspections

Thursday, June 8^th

Combustible Dust

Thursday, December 7^th

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

Continue reading →

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

December 9, 2022Theresa Green Leave a comment

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 Conn, Micah 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]

December 6, 2022Theresa Green Leave a comment

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

November 29, 2022Theresa Green Leave a comment

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

October 25, 2022Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, October 14^th, 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 18^th. 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 19^th (the day after the 11^th 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]

October 14, 2022Theresa Green Leave a comment

On Tuesday, October 11, 2022, 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, 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

October 10, 2022October 10, 2022Theresa Green Leave a comment

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.