COVID-19 FAQs for Employers – Answers to Frequently Asked Employment Law and OSHA Regulatory Questions

As employers around the country grapple with the employment law and workplace safety regulatory implications of the 2019 Novel Coronavirus – now called “COVID-19,” the Labor & Employment Law and OSHA specialist attorneys at Conn Maciel Carey LLP have been fielding countless questions and helping our clients and friends in industry manage this pandemic.

To aid employers, we have created an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance.  Here are the categories addressed in the FAQs tool:

COVID FAQs Image

As this situation continues to evolve, we will Continue reading

[BONUS WEBINAR] Employment Law and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers

On Monday, March 30, 2020 at 1 PM Eastern, join Eric J. Conn, Kara M. Maciel, and Daniel C. Deacon of the law firm Conn Maciel Carey for a complimentary webinar: “HR and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers.”

There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” The World Health Organization declared a global pandemic, President Trump initiated a National Emergency Order, and state and local officials have been ordering shutdowns of non-essential businesses and mandatory shelter-in-place orders. Furthermore, Congress passed emergency legislation that temporarily requires employers to provide paid sick and family leave and the Department of Labor has issued guidance on how employers should comply with employment and workplace safety laws.

Local craft breweries, distilleries, and wineries have been deemed essential businesses under current federal and state directives, such as the Virginia and Maryland governors March 23, 2020 orders, but the traditional way of doing business has changed considerably. These changes have raised numerous questions regarding how small businesses can successfully operate while complying with these new requirements.

During this webinar, participants will learn about Continue reading

COVID-19 Pandemic FAQs – OSHA Injury and Illness Recordkeeping and Reporting

By Eric J. Conn and Lindsay A. Disalvo

There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions in recent days is the requirement to record and/or report work-related cases of COVID-19.  Below are two FAQs that describe the relevant analysis in more detail.

  • Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):CV19

“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).”

The rationale for the exemption is that the spread of the cold and flu are so pervasive that it is typically near impossible to identify the source of infection; i.e., there would be no reasonable way to determine whether it was more likely than not that the illness was caused by an exposure in the workplace.

Despite great sacrifice around the country, the scale of infection of COVID-19 is expected to soon spread like the flu and common cold, but OSHA has already expressed in guidance that COVID-19 is not subject to the cold/flu recordkeeping exemption:

“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

Industry has been advocating to OSHA to have the agency reconsider that initial declaration, but it does not appear OSHA will be exempting this novel strain of Coronavirus from the recordkeeping and reporting requirements any time soon.  OSHA has been maintaining a Safety and Health Topics page for COVID-19 and separate Guidance on Preparing Workplaces for COVID-19 that it updates periodically as more information becomes available.  In its most recent update to guidance, OSHA appeared to Continue reading

Pres. Trump’s Latest Effort to Limit Federal Agency Guidance – Two New Executive Orders

By Eric J. Conn and Beeta B. Lashkari

Late last year, on October 9, 2019, President Trump issued two Executive Orders (“EOs”) that could have a dramatic impact on the way OSHA and other executive agencies operate:

  1. Executive Order 13891, the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents (Guidance Documents EO); and
  2. Executive Order 13892, the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Transparency EO).

These EOs were designed to, according to the President:

“protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people. . .”

In a nutshell, the Guidance Documents EO mandates that the public be provided with an opportunity to comment on proposed guidance and interpretive documents (similar to what is required under the Administrative Procedures Act for rulemaking).  It requires notice and publication of guidance, and the creation of a comprehensive online database where all such guidance must be housed and easily searched.

The Transparency EO focuses on agency enforcement actions.  Most significantly, it requires agencies to provide all parties potentially subject to an enforcement action the opportunity to engage with the agency over the merits of the action prior to commencement of the enforcement action. It also:

  1. prevents agencies from enforcing standards that are not public and that would cause unfair surprise to the regulated entity (i.e., no enforcement relying on guidance documents that are not created and maintained pursuant to the Guidance Documents EO);
  2. requires the publication of any potential new or expanded jurisdiction in the Federal Register;
  3. mandates the development of procedures for encouraging voluntary self-reporting in exchange for penalty reductions; and
  4. requires that agencies adhere to standards in the Paperwork Reduction Act when asking regulated parties for information without a formal subpoena or investigative demand.

The two new Executive Orders align with the President’s business-friendly agenda, making it more difficult for regulators to engage in backdoor rulemaking (i.e., supplementing or changing regulations via the issuance of guidance documents developed without public input), and easier for businesses to keep track of the regulatory requirements with which they must comply, and to head off enforcement actions before they begin.

How will the Executive Orders change the OSH regulatory landscape, and what should employers expect next? Continue reading

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history. 

To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click here to send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.

We are exploring CLE approval for this series.  If you are interested in CLE or other forms of Continuing Education credits, click here to complete a survey.

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd

All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd

OSHA Settlement
Tips And Strategies

Tuesday, February 25th

Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th

Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th

Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd

Annual Cal/OSHA Update

Thursday, April 16th

Impact of the Election on OSHA

Thursday, October 22nd

E-Recordkeeping and
Injury
Reporting Update

Wednesday, May 20th

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

Tuesday, November 17th

OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th

Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

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’s PSM Standard and EPA’s RMP Rule

On Tuesday, November 19, 2019 at 1:00 PM Eastern, join Eric J. Conn, Amanda Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice for a complimentary webinar regarding Process Safety Update: The Latest with OSHA’s PSM Standard and 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 process safety. OSHA and EPA took (or at least initiated) sweeping actions in response to the Executive Order, from enforcement initiatives (like a new wave of Refinery and Chemical Facility PSM National Emphasis Program inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

When President Trump took office with a de-regulatory agenda, the regulated community was left wondering what this meant for these changes to process safety regulations. But rather than a continued wave of action, the momentum splintered, with some initiatives proceeding, others coming to a halt, and others still being pared back. We saw immediate delays and the beginning of rollbacks of new process safety regulations, yet enforcement initiatives appeared to move forward unhindered. And now, with two years of the Trump Administration in the books, it is still unclear where the regulatory landscape will settle.

This webinar will review the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, as well as other major process safety developments from the federal government, state governments, and industry groups.

Specifically, participants in this webinar will learn about: Continue reading

Everything You Need to Know About OSHA’s Health and Chemical Exposure Standards [Webinar Recording]

On October 22nd, Kate McMahon, Amanda Walker, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding “Everything You Need to Know about OSHA’s Health and Chemical Exposure Standards.”

In addition to OSHA’s myriad Safety regulations, the agency has also promulgated approx. 30 comprehensive Health standards, and established air exposure limitations for an additional 500 common chemicals present in U.S. workplaces, such as asbestos, lead, and silica.  Knowing when and how to conduct monitoring is complex, and the chemical sampling data collected can be a double-edged sword.  This webinar helped employers understand and comply with the requirements of OSHA’s occupational health standards, provided useful guidance and tips on the types and frequency of air monitoring or other chemical sampling that may be required at your facilities, and the programs to implement if you do experience exposure levels above the minimum regulatory thresholds (or other industry consensus thresholds). 

Specifically, participants in this webinar will learned about: Continue reading

2nd Annual Process Safety Summit in Washington, DC – October 15-16, 2019

Register today for the 2nd Annual Process Safety Summit in Washington, DC on October 15-16, 2019.

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC is an annual event in our nation’s Capital.  The Inaugural Summit last Fall welcomed more than 175 safety and legal professionals from stakeholders in the chemical, petrochemical, paper, and petroleum refining industries and other industries with operations covered by OSHA’s PSM Standard and EPA’s RMP Rule. The Summit focuses on the process safety regulatory landscape and industry best practices, with programming that covers rulemaking, enforcement programs, significant cases, trends as we move through the Trump Administration, best practices, and other key process safety regulatory issues impacting Industry.

The Agenda and format for the 2nd Annual Process Safety Summit in Washington, DC will include one-of-a-kind line-up of speakers and panels of senior government officials and industry experts, as well as moderated round table sessions.  The event is broken into two parts:

  1. A half-day of confidential breakout sessions with Industry stakeholders and a networking cocktail reception on October 15th; followed by
  2. A full-day of panels and speakers from OSHA, EPA, the OSH Review Commission, Former Heads of OSHA, the CSB, and others on October 16th.

This Summit Continue reading

OSHA’s Electrical Safety Standards: 5 Reasons to Get it Right and 10 Common Mistakes [Webinar Recording]

On September 24, 2019, Micah Smith, Aaron Gelb, and Dan Deacon of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding “OSHA’s Electrical Safety Standards: 5 Reasons to Get it Right and 10 Common Employer Mistakes.”

Electrical safety has long been an enforcement priority for OSHA. OSHA’s electrical standards are designed to protect employees against hazards of electric shock, electrocution, flash fires, and explosions.  Often, workers and/or their employers are unaware of the potential electrical hazards present in their work environment, and even more often, they are unfamiliar with the nuances of OSHA’s regulatory requirements in this area.This webinar will highlight the top 5 reasons it is critical for employers to get compliance with OSHA’s electrical safety standards right, explain the 10 most misunderstood and misapplied provisions of the applicable OSHA standards, and discuss strategies to limit exposure to the most common electrical safety violations.

Specifically, participants in this webinar learned: Continue reading

In-Person OSHA, MSHA, and Labor Briefing (and Launch Party) in Columbus, OH – October 1, 2019

Join Conn Maciel Carey for an In-Person OSHA, MSHA, and Labor Briefing in Columbus, OH on Tuesday, October 1, 2019, and stay for a cocktail reception to celebrate the launch of our new Columbus, Ohio Office.

This complimentary program will feature panel discussions with current and former representatives from the National Labor Relations Board, OSHA and MSHA addressing key enforcement and regulatory developments.  The government representatives will be joined by senior corporate counsel from several multi-national corporations and Conn Maciel Carey’s Labor & Employment and Workplace Safety Law specialist attorneys.  The plenary sessions will cover topics including:

  • OSHA policy and enforcement developments
  • NLRB rulemaking and Board case law updates
  • MSHA regulatory and enforcement priorities
  • Other trending topics (joint-employer, pension withdrawal liability, whistleblower / anti-retaliation claims)

There will also be breakout sessions with discussions led by CMC attorneys covering issues of particular concern to various industry segments.

Here is the current agenda for the event:

The briefing Continue reading

Responding to OSHA 11(c) Retaliation Charges, Employee Safety Complaints, and Rapid Response Investigations

By Lindsay A. DiSalvo and Beeta B. Lashkari

When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.  A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.

Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response.  We are pleased to share the following tips and strategies for how to effectively address such complaints.

Whistleblower Complaints

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.

While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them.  This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading

Fate of Obama-Era OSHA Regulations and Enforcement Policies Under the Trump Administration

By Eric J. Conn and Micah Smith

In the final days and weeks of the Obama Administration, OSHA promulgated several significant regulatory changes.  For example, after several decades, it finally completed its update to the Walking Working Surfaces Standard (the regulation covering slips, trips and falls).  It also published a controversial Electronic Injury Data Submission Rule, extended the statute of limitations for recordkeeping violations, added two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals.  To name a few.

But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”?  While some Obama-era OSHA regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promises for deregulation, most have remained untouched.  Indeed, when Scott Mugno, President Trump’s nominee for OSHA’s top job, recently announced his decision that he was withdrawing his name from consideration, the likelihood that OSHA would remain without a permanent, appointed leader for the entirety of President Trump’s term has increased dramatically, and conversely, without a captain steering the ship, the likelihood of OSHA carrying out the Trump Administration’s plan for major de-regulatory action has dramatically decreased.

Much more likely, OSHA will continue to operate over the course of the next year and a half of the Trump Administration as it has since shortly after his Inauguration – modest de-regulatory efforts to nibble around the edges of Obama-era regulations, but nothing close to the level of radical deregulation that had been advertised on the campaign trail and which we have seen at other agencies.  Thus, the “midnight” regulations promulgated at the tail end of the Obama Administration appear likely to remain largely intact. Continue reading

Preparing for and Managing OSHA Inspections and Citations [Webinar Recording]

On July 23, 2019, Amanda Strainis-Walker, Aaron Gelb, and Lindsay DiSalvo of Conn Maciel Carey‘s national OSHA Practice presented a webinar regarding “Preparing for and Managing OSHA Inspections and Citations.”

Confounding expectations, federal OSHA under the Trump Administration has continued the same aggressive enforcement model we saw during the Obama Administration.  Indeed, by many metrics we are seeing enhanced enforcement — more inspections, higher civil penalties, record numbers of $100K+ citation packages, and a continuing rise in willful / repeat citations and worker safety criminal prosecutions.

OSHA has also continued its aggressive inspection strategies that create a minefield for employers.  In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during inspections and after citations are issued, are more dire now than ever before.

This webinar provided employers with the knowledge and tools they need to prepare in advance for an OSHA inspection, to manage the inspection to a successful outcome once it begins, and to make smart decisions about how to address citations after they issue.

Specifically, participants in this webinar learned:

Continue reading

Key Cal/OSHA Issues California Employers Must Track [Webinar Recording]

On May 28, 2019, Andrew J. SommerEric J. Conn and Megan S. Shaked  of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “Key Cal/OSHA Issues 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 should be on the lookout for a new permanent E-Recordkeeping injury data submission rule, a new focus on finding Repeat violations, and the roll-out of several new California-unique rules.

Participants in this webinar learned about:​

Continue reading

“Unexpected Energization” Still Essential to Require Lockout/Tagout Despite Controversial OSHA Rulemaking

By Dan C. Deacon and Eric J. Conn

After years awaiting the fate of OSHA’s controversial proposed change to write the term “unexpected energization” out of its Lockout/Tagout (“LOTO”) standard, OSHA just announced its new Final Rule of Phase IV of the Standards Improvement Project (“SIP”).  The SIP process was designed to allow OSHA a simplified rulemaking path to make non-controversial changes to fix minor issues with existing standards.  The SIP IV proposal included numerous minor adjustments to a variety of existing OSHA standards, but one seemingly major change to the LOTO standard.  Specifically, the Obama Administration’s OSHA slipped into SIP IV a controversial proposal to revise the scope provision of the LOTO standard to remove the term “unexpected energization” as a prerequisite for the requirements of the LOTO standard to kick-in.  After an outcry by the regulated community, this proposed change to the LOTO standard was removed from the Final Rule.  However, OSHA signaled it will likely re-visit the issue again in a separate LOTO rulemaking.

History of Standards Improvement Project

OSHA initiated the “Standards Improvement Project” (SIP) during the Clinton Administration, and and there have been a series of four SIP rulemakings since.  The Project was intended to allow OSHA to efficiently make non-controversial changes to confusing, outdated, or duplicative elements of OSHA standards and to to align standards across industries and make it easier for employers to understand and comply with safety and health regulations. Continue reading

OSHRC Dramatically Expands Interpretation of “Interconnected” for PSM-Coverage

By Eric J. Conn and Micah Smith

On March 28, 2019, the OSH Review Commission released its decision in Sec’y of Labor v. Wynnewood Refining, OSHRC, Nos. 13-0644 & 13-0791.  In a fairly brief opinion, the Commission affirmed the decision of the ALJ on two significant issues:

  1. the PSM standard applied to a utilities boiler; and
  2. OSHA inappropriately relied upon the citation history of a prior owner in characterizing citations as Repeat.

Expanding PSM Coverage

With regard to PSM applicability, the decision is framed as a response to the arguments raised in the refinery’s brief, but it does not directly address the arguments raised by the amicus brief filed by AFPM and API.  The Commission began its discussion of PSM applicability by evaluating the meaning of the definition of “process,” in particular how to interpret this phrase:

“For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical (HHC) could be involved in a potential release shall be considered a single process.”

The Commission held that, in order to prove a group of vessels qualify as a process, OSHA may prove either that a) the group of vessels are interconnected or b) separate vessels are located such that an HHC could be involved in a potential release.  With surprisingly little analysis, the Commission held that this was the plain meaning of the terms of the standard, and the Commission did not evaluate at all whether OSHA’s interpretation deserved deference.  (Note:  Chairwoman MacDougall disagreed that this was the plain meaning of the terms, but she agreed that OSHA’s interpretation of the definition deserved deference.)

This decision gave no credence to the arguments made by the refinery and the amici, which both urged the Commission to find that interconnected vessels be considered a single process only if there is a reasonable probability that an event such as an explosion would affect the interconnected vessels. Continue reading

OSHA’s New Site-Specific Targeting Enforcement Program [Webinar Recording]

On March 19, 2019 Amanda Walker, Aaron Gelb and Dan Deacon of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “OSHA’s New Site-Specific Targeting Enforcement Program.

More than two years after OSHA published the E-Recordkeeping Rule, the agency finally revealed some of its plans for how it will utilize employers’ 300A injury data collected under the new Rule.  In late October 2018, OSHA launched its new Site-Specific Targeting Enforcement Program, which outlines how the agency will select non-construction establishments for programmed inspection. OSHA will create targeted inspection lists based on employers’ higher than average Days Way, Restricted or Transfer (“DART”) injury rates. OSHA will also include a random sample of establishments with lower than expected injury rates for quality control. Thus, all employers covered by OSHA’s E-Recordkeeping Rule may be subject to an SST inspection.

Participants in this webinar learned: Continue reading

2019 Update on OSHA’s E-Recordkeeping and Significant Injury Reporting Rules [Webinar Recording]

On February 12, 2019 Lindsay DiSalvo and Dan Deacon from Conn Maciel Carey LLP’s national OSHA Practice presented a webinar regarding: “Updates About OSHA’s E-Recordkeeping and Significant Injury Reporting Rules.

OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, in January 2019, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.

Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015.  Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA.  In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.

During this webinar, participants learned: Continue reading

Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review [Webinar Recording]

On January 15, 2019, the Partners in Conn Maciel Carey’s national OSHA Practice presented a webinar on “The Top 5 OSHA Issues to Track in 2019, and OSHA’s 2018 In Review.” 

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 reviewed OSHA enforcement, rulemaking, and other developments from 2018, and discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants learned: Continue reading

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

By Andrew Sommer, Megan Shaked, and Dan Deacon

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, E-Recordkeeping Ruleit 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

OSHA’s New Site-Specific Targeting Inspection Initiative

By Dan C. Deacon and Eric J. Conn

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

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

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.


2019 OSHA Webinar Series – Program Schedule
OSHA Year in Review & 2019 Forecast

Tuesday, January 15th

Tips to Survive an OSHA Inspection

Tuesday, July 23rd

Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th

Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th

OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th

OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th

Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th

What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd

New Cal/OSHA Enforcement Issues

Tuesday, May 28th

 OSHA PSM and EPA RMP Update

Tuesday, November 19th

The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th

Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th

See below for descriptions of the webinars and registration links Continue reading

[Webinar] OSHA and the ADA: How Two Labor Laws Align and Diverge

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.

​During this webinar, participants will learn: Continue reading

Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule [Webinar Recording]

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.

Continue reading

Key Takeaways from the Inaugural Process Safety Summit in Washington, DC

Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC

By the national OSHA Practice at Conn Maciel Carey LLP

The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success.  The event allowed 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 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 cases, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.

Introduction

The day began with welcome remarks from Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice.  Eric set two themes for the Summit:

  1. the importance of candid discussions between regulators and the regulated community; and
  2. the near-term risk of agencies possibly revisiting and revising 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 a former Senior OSHA Official.

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, we watch how lessons are being learned and applied from incidents and experience, and we see how much time is spent anticipating the kinds of issues that could cause a process safety incident.  More importantly, remarks about Industry “making up the rules as it goes along” also reflect a flawed view that Continue reading