The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term. This webinar will review OSHA enforcement, rulemaking, and other developments from 2018, and will discuss the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.
As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).
When federal OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication. Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration. As a result, numerous State OSH programs failed to initially adopt the rule. After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.
Delinquent State Plans Began Adopting E-Recordkeeping
In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon. While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:
- California (Cal/OSHA);
- Washington (WA DLI, WISHA, or DOSH);
- Maryland (MOSH);
- Minnesota (MNOSHA);
- South Carolina (SC OSHA);
- Utah (UOSH);
- Wyoming (Wy OSHA); and
- Vermont (VOSHA)
Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction. Specifically, on April 30, 2018, federal OSHA issued a Continue reading
We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking. We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases. And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.
As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.
To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.
Tuesday, January 15th
Tuesday, July 23rd
Tuesday, February 12th
Tuesday, August 13th
Tuesday, March 19th
Tuesday, September 24th
Tuesday, April 16th
Tuesday, October 22nd
Tuesday, May 28th
Tuesday, November 19th
Tuesday, June 18th
Tuesday, December 17th
See below for descriptions of the webinars and registration links Continue reading
On October 17, 2018, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”). Reports such as these, usually issued twice a year, set forth each federal agency’s forecast of its anticipated actions and rulemaking priorities for the next six-month period. It also provides estimated timelines for completion. This regulatory to-do list provides insight into the administration’s upcoming priorities. The current Agenda emphasizes the Trump Administration’s efforts to deregulate industry, but also includes several regulatory items of importance to employers.
Here is a summary, broken down by department, of the most significant employment-related items addressed in the Agenda.
Department of Labor
Wage and Hour Division
Joint Employment. The Obama administration took a much broader view of “joint employment” – situations in which a worker may be considered an employee of two or more separate employers. Following the lead of the…
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On November 13, 2018, Eric J. Conn, Micah Smith, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule.”
Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical manufacturing processes. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like the second wave of Refinery PSM NEP inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.
Then President Trump took office with a de-regulatory agenda. Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?
This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, and other major safety and health related developments rolling out in the early stages of the Trump Administration.
Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC
The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success. The event allowed the more than 160 safety and legal representatives from the petroleum refining, chemical manufacturing, paper manufacturing, and fertilizer industries to hear from and share with senior federal government officials from OSHA, EPA and the Chemical Safety Board, both through interactive panel discussions and breakout roundtable discussions. The agency panels and facilitated discussions covered topics ranging from enforcement under the Trump Administration, to the status of OSHA’s PSM and RMP Rulemakings, candid debates about major issues in dispute in recent PSM and RMP case, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and how to comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.
- the importance of candid discussions between regulators and the regulated community; and
- the near-term risk of agencies working to upend the historical performance-oriented paradigm of the process safety regulatory framework.
Too often, OSHA and EPA representatives complain that Industry “can make up the rules as it goes along.” – Tweet from David Michaels, Former Assistant Secretary of Labor for OSHA.
Statements like that imply a haphazard approach to process safety that it is not reflected by the diligent work of refiners and manufacturers across the country. Our experience shows a much different take on process safety. We hear about all of the ways that process safety is evolving, much more often on Industry’s own initiative than in response to a regulatory action. We watch how lessons are being learned and applied from incidents and experience. We see how much time is spent trying to anticipate the kinds of issues that could cause a process safety incident. And we feel a regulatory backlash, when process safety problems are most often found in outliers or with operations not even covered by OSHA’s or EPA’s process safety regulations.
More importantly, remarks about Industry making up the rules as it goes along also reflect a flawed belief by regulators that Continue reading
On May 11, 2016, OSHA published its Final Rule for injury and illness recordkeeping electronic data submissions — what we refer to as the E-Recordkeeping Rule. The rule fundamentally changed OSHA’s long-standing injury and illness recordkeeping program by requiring injury and illness data to be proactively shared with OSHA, which intended originally (and still, but after some delay) to publicize the data for all the world to see. The 2016 E-Recordkeeping Rule required:
- All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
- Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only.
In addition to the electronic data submission requirements, the E-Recordkeeping also introduced (out of left field) some new anti-retaliation restrictions that were intended to eliminate employer policies that may discourage employees from reporting injuries, purportedly for the nefarious purpose of reducing the numbers of injuries the employer has to share with OSHA. These anti-retaliation provisions included very generic, vague language, but through a series of memos, interpretation letters, and other guidance, we have learned that the anti-retaliation elements primarily restrict employers’ use of safety incentive programs (prizes for injury-free work), post-incident drug testing, executive compensation and bonuses, and post-incident discipline. Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the Preamble to the Final Rule. For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.
Since promulgation in May 2016, implementation of all aspects of the Rule has been mired in difficulty. Continue reading
When fed OSHA promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication. However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by fed OSHA. Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from fed OSHA under the new Trump Administration.
Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule. Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:
- 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).
Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018. And that is when fed OSHA started to speak up.
OSHA’s April 30, 2018 Press Release
On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule. In the press release, OSHA states that it had determined that:
Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”
State Plan State Responses
The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive Continue reading
On September 18, 2018, Micah Smith and Dan Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar: “Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule.”
Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers. In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule. The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.
Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.
Participants in this webinar learned:
Today, the U.S. Court of Appeals for the D.C. Circuit handed EPA (and Industry) a significant setback in the long-running battle over the 2017 Amendments to EPA’s Risk Management Program (RMP) Rule (EPA’s companion regulation to OSHA’s Process Safety Management Standard). Specifically, in a per curiam order in Air Alliance Houston v. EPA, the D.C. Circuit held that EPA under the Trump Administration acted improperly when it issued a final rule delaying the effective date by 20 months (from June 2017 to February 2019), of a significant set of Amendments to the RMP Rule that had been promulgated in the final days of the Obama Administration.
This ruling creates significant concern for the regulated community. The Amendments require major overhauls to they way covered employers implement their risk management plans. But EPA is still advancing a rulemaking to rescind and narrow those Amendments. Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs.
Indeed, EPA’s express purpose of the lengthy delay of the RMP Amendments was to provide time for EPA to reconsider and eliminate or curtail the sweeping new provisions. The D.C. Circuit criticized EPA for its attempts to delay a regulation that it had just recently issued, stating in the written opinion that:
“the Delay Rule thus contains no provisions that advance or accomplish these goals [of preventing accidental releases and protecting human health and the environment], but instead delays these objectives contrary to EPA’s prior determinations in a rulemaking.”
While the Court criticized the agency for Continue reading
After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump Administration, OSHA has taken a step (hopefully just the first step) to pare down the E-Recordkeeping Rule. Specifically, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule. While the proposed change will undoubtedly be welcomed by Industry, the scope of the proposed change, however, does not address most of the fundamental concerns employers have repeatedly raised about the controversial rule.
The Proposed Rule includes only one significant change to the current regulation. The proposal seeks to eliminate the requirement for the largest employers, those with establishments with 250 or more employees, to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses via OSHA’s new online web portal. However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data via OSHA’s electronic portal.
Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the proposed rule does not disturb in any manner the highly controversial “anti-retaliation” provisions, or the interpretations of those provisions included in the 2016 final rule preamble. In addition to establishing requirements for electronic submission of injury and illness recordkeeping data, the 2016 E-Recordkeeping Rule endeavored to restrict employers’ rights to adopt employee injury reporting policies and expanded OSHA’s enforcement authority by introducing a vague new set of “anti-retaliation” provisions.
Particularly controversial was the Continue reading
Attend the Inaugural Process Safety Summit in Washington, DC on October 22-23, 2018, presented by Conn Maciel Carey LLP and sponsored by the American Fuel and Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API).
What is the Process Safety Summit in Washington, DC?
The Process Safety Summit in Washington, DC will be an annual event featuring a full-day program in Washington, DC gathering interested stakeholders from the chemical, petrochemical, and petroleum refining industries, and other industries with operations impacted by OSHA’s PSM Standard and EPA’s RMP Rule.
The focus of the Process Safety Summit in Washington, DC will be on the process safety regulatory landscape. The full-day Program will cover the PSM/RMP rulemakings, enforcement programs, significant cases, trends through the transition to the new Administration, best practices, and other key process safety regulatory issues impacting Industry.
This Process Safety Summit fills an important gap in Washington, DC. Although there are opportunities for trade groups and employers to interact with key government regulators, none of those opportunities focus on process safety, and the process safety-oriented events that do exist are far from Washington, DC, making it hard to attract more than one senior agency official.
On July 10, 2018, Conn Maciel Carey attorneys Andrew J. Sommer, Eric J. Conn, and Megan S. Shaked presented a webinar: “Key Cal/OSHA Issues that California Employers Must Track.”
The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
Of particular significance, in the coming year, California employers can expect an uptick in Cal/OSHA penalties as result of two significant changes, one adopting higher maximum civil penalty authority, and the other changing how the agency finds and cites violations characterized as Repeat.
During this webinar, participants learned about:
The July 1, 2018 deadline for large employers (250+ employees at a single work site) and smaller employers (20-249 employees) in certain so-called “high hazard industries” to submit injury and illness data to OSHA is less than a week away. We have been tracking closely the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, it appears that this deadline for the second data submission under the rule is going to stand.
Therefore, if employers have not already done so, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application (the portal that will receive the injury data), and submit covered injury data (i.e., their 2017 OSHA 300A Annual Summary data) by this Sunday.
For a last-minute primer on the nuances of OSHA’s E-Recordkeeping Rule, check out this blog article from Intelex, a compliance software development resource. Here is the opening excerpt from the article:
“Mandatory submission of injury and illness data to OSHA through a dedicated Web-based portal should, in theory, make the process quick and easy. However, a recent spate of real and proposed changes to the agency’s E-Recordkeeping Rule has left many employers wondering if they are required to submit injury and illness data for certain establishments, by when they must do it, and what the consequences are of not submitting the data.
The latest in Conn Maciel Carey LLP’s OSHA webinar series addressed these topics and provided some much-needed clarity for employers.”
For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) (LOTO) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.
This two-part article lays out:
- [Part 1]: 5 reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
- [Part 2]: 5 common mistakes employers make implementing LOTO requirements.
Part 1 Summary: Five Reasons it is Critical to Get LOTO Right
As we discussed in Part 1 of this two-part article, there are five important OSHA enforcement reasons why it is vital for employers to truly grasp OSHA’s regulatory requirements for lockout/tagout (LOTO) and implement them.
Those 5 reasons are:
- Amputation Injuries Create Special Reporting Obligations
- LOTO Citations are Low Hanging Fruit for OSHA
- OSHA is Actively Pursuing LOTO Violations with a National Emphasis Program
- LOTO Violations Qualify for the Severe Violator Enforcement Program
- LOTO Violations are Among the Most Used for OSH Act Criminal Prosecutions
For a detailed discussion about those reasons, check out Part 1 of this two-part article.
Part 2: Five Common LOTO Mistakes
This part details the five most common mistakes and misunderstandings associated with OSHA’s regulatory requirements for LOTO.
1. Confusion about When the LOTO Standard Applies
Normal production operations are not covered by the LOTO standard. Rather, the requirements of OSHA’s LOTO standard kick in during servicing and/or maintenance, or any production activity that requires an employee to remove or bypass a guard or other safety device, or if an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is performed upon the material being processed. Otherwise, the employer is expected to install and maintain appropriate guards that protect employees as required by 1910.212, OSHA’s machine guarding standard.
While the LOTO and machine guarding standards tend to complement each other—one protects employees during normal production operations (guarding), while the other protects employees during servicing or maintenance (LOTO). Technically, OSHA may not cite the Continue reading
A fascinating jurisdictional tug-of-war has broken out between federal OSHA and a few fed OSHA approved State OSH Programs, in relation to OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule). The E-Recordkeeping Rule requires large employers and smaller employees that operate in certain “high hazard industries” to proactively submit their electronic injury and illness data to OSHA through a special web portal – the Injury Tracking Application (“ITA”).
State Plan Adoption of OSHA’s E-Recordkeeping Rule
When fed OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication. However, because the State Plan states all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new fed OSHA rule.
Most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, ahead of the deadline to submit data the first year of the Rule, but as of the end of 2017, when employers’ 2016 300A data was due to be submitted, eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule. Those states included:
- California (Cal/OSHA);
- Washington (WA DLI, WISHA, or DOSH);
- Maryland (MOSH);
- Minnesota (MNOSHA);
- South Carolina (SC OSHA);
- Utah (UOSH);
- Wyoming (WY OSHA); and
- Vermont (VOSHA).
The delay by these States has primarily been a result of fed OSHA’s numerous announcements that it will soon issue a Notice of Proposed Rulemaking to amend (or rescind) the federal E-Recordkeeping Rule. The State Plans have been reluctant to invest the time and resources to implement their own versions of the rule, only to watch fed OSHA change it, causing the states to have to change their own rules again very soon.
Of those eight states, only Vermont has since finalized its E-Recordkeeping Rule this year, and the other seven remain delinquent in their obligation to adopt the Rule.
Last year, fed OSHA and those eight state plans apparently recognized that only employers in fed OSHA states or State Plan states that had already adopted the E-Recordkeeping rule were required to submit their 300A data to OSHA. This year, however, fed OSHA spoke up about the delinquent states. Continue reading
On May 15, 2018, Amanda Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “The Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule.“
OSHA’s controversial Electronic Recordkeeping and Anti-Retaliation Rule was promulgated in May 2016. Despite a barrage of negative comments during the rulemaking, multiple enforcement deferrals, and two legal challenges that have been stayed pending the Trump Administration’s re-evaluation of the Rule, all elements of the rule are currently in effect. Indeed, last December, hundreds of thousands of workplaces, for the first time, submitted their injury and illness recordkeeping data to OSHA through its Injury Tracking Application (ITA) web portal.
The Trump Administration is ready to announce its future plans for the E-Recordkeeping Rule, signaling that it will publish a Notice of Proposed Rulemaking to revise (or potentially rescind) the Rule later this month. However, the extent of the revisions to the rule remain unknown, and the timing is key as we approach July 1, 2018, the deadline for the second round of injury data submissions.
Conn Maciel Carey LLP, a boutique law firm with national practices in workplace safety (OSHA and MSHA), labor & employment, and litigation, is pleased to announce that Beeta B. Lashkari has joined the firm as an attorney in its Washington, D.C. office.
Ms. Lashkari, a former attorney-investigator at the U.S. Chemical Safety and Hazard Investigation Board (CSB), will advise and represent clients in a wide-range of inspections, investigations, and enforcement actions, including those from the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency, the CSB, and state and local regulators. As one of only four attorney-investigators at the CSB, Ms. Lashkari was involved in several major investigations of chemical accidents.
“Beeta brings a unique array of experience and perspective that will enhance the safety and health law services we provide to employers across all industries, and particularly chemical and petrochemical manufacturers,” said Eric J. Conn, Chair of the firm’s national OSHA practice. “We’ve been busy this year expanding our firm, and Beeta is another superb addition to our already deep bench of OSH law experts.”
Ms. Lashkari will also support the firm’s labor and employment practice group in managing workplace investigations, including Continue reading
On April 17, 2018, Kate McMahon and Nick Scala, of the national Workplace Safety Practice at Conn Maciel Carey, presented a webinar: “New Silica and Beryllium Standards: Update on OSHA Chemical Rulemaking.”
OSHA’s struggles to reform its chemical exposure limits continue with the rocky roll-out of its two newest occupational exposure standards – Silica and Beryllium. Both standards have faced legal challenges, but will survive in some form resulting in a full panoply of new obligations, including significant reductions in the allowable exposure levels to these chemicals, and a comprehensive set of ancillary requirements, such as housekeeping, hygiene, medical surveillance, recordkeeping, workplace signage, training, etc.
MSHA, even without its own Silica Standard on the books, has adopted some elements of the hierarchy of controls fundamental to OSHA chemical standards. MSHA also conducts exposure monitoring at least annually for respirable silica, and rigorously enforces silica exposure issues. “Me too” Silica and Beryllium standards for the mining industry may also be in the offing.
On March 20, 2018, Kate McMahon and Amanda Strainis-Walker, of the national OSHA Practice Group at Conn Maciel Carey, presented a webinar: “Who is the New DOL Leadership Team Impacting OSH Law?”
Pres. Obama’s Secretary of Labor, Assistant Secretary of Labor for OSHA, and the rest of his political Leadership Team at the Department of Labor turned over the keys to the Trump Administration. The Trump Administration has now installed, or at least announced, its own OSHA and OSHRC Leadership Team, and the backgrounds and regulatory philosophies between the outgoing and new decision makers and policymakers could not be more different.
During this webinar, participants learned about the new appointees who have taken (or should soon take) the reins at OSHA, and how this new Leadership Team will affect OSHA enforcement and rulemaking. We also reviewed other personnel changes at OSHA and OSHRC that will impact the regulatory landscape for employers.
Musculoskeletal disorders (MSDs) are the single most common type of work-related injury, but federal OSHA has struggled for decades to develop a coherent regulatory and/or enforcement strategy to address the hazards that cause these ergonomic injuries. Where federal OSHA fell short, the State of California has picked up the slack, with Cal-OSHA recently finalizing a safety standard regarding Housekeeping Musculoskeletal Injury Prevention. The standard, which will go into effect this summer applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public, and requires operators to develop, implement and maintain a written Musculoskeletal Injury Prevention Program tailored to hazards associated with housekeeping.
Background About Ergonomics
An ergonomic hazard is a physical factor within the work environment that has the potential to cause a musculoskeletal disorder (MSD). MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system; i.e., muscles, tendons, ligaments, nerves, discs, blood vessels, etc. Common ergonomic hazards include repetitive movement, manual handling, workplace design, uncomfortable workstation height, and awkward body positioning. The most frequent ergonomic injuries (or musculoskeletal disorders) include muscle/tendon strains, sprains, and back pains, Carpal Tunnel Syndrome, Tendonitis, Degenerative Disc Disease, Ruptured / Herniated Disc, etc., caused by performing the same motion over and over again (such as vacuuming), overexertion of physical force (lifting heavy objects), or working while in an awkward position (twisting your body to reach up or down to perform a work task).
MSDs are the single most common type of work related injury. According to Bureau of Labor Statistics data, MSDs alone account for nearly 30% of all worker’s compensation costs. OSHA estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses (approx. 34% of all lost workdays reported to the BLS), and employers spend as much as $20 billion a year on direct costs for MSD-related injuries and up 5x that on indirect costs (e.g., lost productivity, hiring and training replacement workers, etc.).
Federal OSHA’s Ergonomics Enforcement Policy
Nevertheless, federal OSHA has been lost in the woods for years searching for a coherent ergonomics enforcement policy. In the final days of the Clinton Administration in November 2000, federal OSHA promulgated an extremely controversial midnight Ergonomics Standard, requiring employers to take measures to curb ergonomic injuries in the workplace. Continue reading
On February 20, 2018, Eric J. Conn and Aaron R. Gelb of the national OSHA Practice Group at Conn Maciel Carey presented a webinar: “Unlock The Mysteries of OSHA’s Lockout/Tagout Standard.”
OSHA’s Lockout/Tagout (Energy Control) Standard is always one of OSHA’s most frequently cited standards, and now, with the “Amputations National Emphasis Program” raging on into 2018, as well as LOTO violations continuing to be considered “high emphasis hazards” to qualify employers into the dreaded Severe Violator Enforcement Program, it is critical for employers to get Lockout/Tagout right. While LOTO continues to be an important standard, it also continues to be one of the least understood standards. This webinar will highlight the Top 10 most misunderstand and frequently cited aspects of the LOTO rule, and forecast some potential changes to the rule and OSHA’s enforcement of it.
By Eric J. Conn
This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).
This February 1 requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new Electronic Recordkeeping Rule. The February 1st deadline is only about the internal posting of 300A data for your employees’ eyes. The E-Recordkeeping Rule, on the other hand, is a new requirement for certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through a web portal. Depending on how OSHA resolves an internal policy debate and the outcome of legal challenges from labor groups, that data may also be shared publicly.
By February 1st every year, employers must:
- Review their OSHA 300 Log(s);
- Verify the entries on the 300 Log are complete and accurate;
- Correct any deficiencies identified on the 300 Log;
- Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
- Certify the accuracy of the 300 Log and the 300A Summary Form.
The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.
Four Common 300A Mistakes that Employers Make
We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty: Continue reading
As of January 2, 2018, civil penalties for workplace safety and health violations issued by federal OSHA increased again by 2% across the board. Although a 2% increase does not shock the system, this increase is part of a program that has resulted in OSHA’s civil penalty authority nearly doubling since 2016.
History of Civil Penalty Adjustments
As I sit here this afternoon wondering if the government will shut down over disputes about immigration and healthcare, I am reminded of a time just a couple of years ago, in late 2015, when we were again on the verge of a government shutdown over abortion rights and deficit spending. That shutdown was averted thanks to a backroom deal between outgoing Speaker of the House John Boehner and President Obama, which ultimately took the form of the Bipartisan Budget Act of 2015. That “kick the can down the road” measure included a controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor. It was called the “Federal Civil Penalties Inflation Adjustment Improvements Act,” and it mandated that executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties.
On June 30, 2016, the Department of Labor issued its Interim Final Rule to implement the Civil Penalty Inflation directive. OSHA’s civil penalty authority had been stagnant for as long as any other agency, not having been increased for 25 years (since 1990), so this “catch-up” penalty increase for OSHA was the most significant. Indeed, following the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by the same percentage increase as the growth from the 1990 Consumer Price Index – Urban (CPI-U) to the October 2015 CPI-U, which was nearly 80%:
In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, OSHA’s Interim Final Rule, the Federal Civil Penalties Inflation Adjustment Improvements Act also required Continue reading
The ball has dropped, the confetti has been swept out of Times Square, and 2017 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, the question on everyone’s mind (well, maybe just OSHA nerds like us), is what can we expect from OSHA in the first full year of the Trump Administration?
In this webinar event, attorneys from the national OSHA Practice Group at Conn Maciel Carey reviewed OSHA enforcement, rulemaking, and other developments from 2017, and discussed the Top 10 OSHA Issues employers should monitor and prepare for in the New Year. During this webinar, participants learned:
- 2017 OSHA enforcement data and trends, and the future of OSHA enforcement
- The Top 10 OSHA issues employers should track in 2018
- Rulemaking and de-regulatory developments and predictions
- Status/future of the roll-out of Pres. Trump’s De-Regulatory Agenda
- Other significant OSHA policy issues to track in the New Year