OSHA Rulemaking

OSHA To Initiate SBREFA Process for Heat Illness Rulemaking – Join CMC’s Rulemaking Coalition

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By Eric Conn, Kate McMahon, and Beeta Lashkari

On Friday, May 19, 2023, OSHA presented at the Small Business Administration’s (“SBA”) Small Business Labor Safety (OSHA/MSHA) Roundtable about OSHA’s Heat Illness Rulemaking.  At the meeting, OSHA reported about the status of the rulemaking, including the heat working group’s (as led by sub-group two) recommendations regarding potential elements of a standard, as we describe below (see “NACOSH Heat Working Group Meeting” section below).  OSHA also gave an update on its work regarding changes to its compliance materials, which are in line with the heat working group’s (as led by sub-group one) recommendations made to the full NACOSH committee, and then from the full NACOSH committee to OSHA, earlier this year.

Importantly, just as we predicted, during the SBA roundtable meeting, OSHA stated that it is working diligently to pull together materials to initiate the SBREFA process as soon as possible, and when asked about the timing of issuance of the final standard, specifically, whether that will not happen until 10-12 months at the earliest, OSHA stated that the SBREFA process will be happening very soon, and that the heat injury and illness prevention rulemaking is a high priority for this Administration.

As we mentioned previously, we have officially moved into what we are calling Phase 2 of the rulemaking, which covers all advocacy and information-sharing from today (the start of the SBREFA process) through issuance of a Notice of Proposed Rulemaking (“NPRM”).  Here are some of the benefits Continue reading →

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

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

On March 20th 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 →

A Status Update About OSHA’s Rulemaking For a Permanent COVID-19 Rule for Healthcare

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By Eric J. Conn and Beeta B. Lashkari

We wanted to provide a little status report about OSHA’s quiet rulemaking for a permanent COVID-19 Standard for Healthcare.  A few weeks ago, at the ABA WOSH Committee Midwinter meeting, multiple senior Department of Labor officials, including Doug Parker (Head of OSHA) and Seema Nanda (the Solicitor of Labor), were asked some pointed questions about the rulemaking.  They were all pretty tight-lipped and evasive.  We pointed out to the Solicitor of Labor that the very day on which we were talking about the rulemaking was the 90th day since OSHA had delivered the proposed final rule to the White House’s Office of Management Budget for a “final review.”  Pursuant to Executive Order 12866, a proposed final rule generally cannot remain at OMB for longer than 90 days unless the regulating agency (in this case, OSHA) requests an extension of the review period.  The Solicitor of Labor was asked if the Department of Labor or OSHA had already or was intending to seek such an extension, or whether the agency had decided to withdraw the proposed final rule in light of the changing circumstances of the pandemic and President Biden’s withdrawal of the emergency declaration.  She sidestepped the question, stating that OMB can extend the review period at least another 30 days without any formal action by the Department of Labor, but would not say what OMB’s or OSHA’s plans were for the rule.

The one-time, automatic 30-day extension of OMB’s 90-day review period is consistent with our understanding too.  See the excerpt below from OMB OIRA FAQs: Continue reading →

OSHA Delivers Proposed Final (Amended) Electronic Recordkeeping Rule to the White House

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By Eric J. Conn, Lindsay A. DiSalvo, and Dan C. Deacon

We have an update to share about OSHA’s rulemaking to expand its regulation to “Improve Tracking of Workplace Injuries and Illnesses” (known better as the Electronic Recordkeeping or E-Recordkeeping Rule).  Late last week, OSHA delivered to the White House’s Office of Management and Budget (OMB) a proposed Final (Amended) E-Recordkeeping Rule for review by the Administration’s economists and policy experts.  OMB’s website reflects that, as of April 7, 2023, OMB:

  • Has received a proposed E-Recordkeeping Rule from OSHA; and
  • The rule is in the “Final Rule” stage.

As we indicated a few weeks ago, OSHA’s latest target date to issue the rule is June of this year, and getting the proposed final rule to OMB last week lines up well with that target.  The submission of the proposed rule to OMB means OSHA is at the goal line; just one step away from finalizing a rule that more closely resembles the agency’s original intent and broad scope of the E-Recordkeeping Rule when it was promulgated in 2016 under the Obama Administration.

The original E-Recordkeeping Rule would have had larger employers submitting to OSHA annually the data from their full panoply of injury and illness recordkeeping forms (the 300 Logs, 301 incident reports, and 300A Annual Summaries), and smaller employers in certain “high hazard industries” submitting only the 300A Annual Summary data.  Before ever collecting the more detailed level data from 300 Logs and 301 Incident Reports, former President Trump’s OSHA rolled back the more onerous requirements, such that no matter the employer’s size, if you were covered by the rule, you submitted only 300A Annual Summary date.

OSHA was sued by organizations representing labor alleging that Continue reading →

OSHA Initiates Rulemaking to Revive Union Participation in OSHA Inspections at Non-Union Workplaces

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By Aaron Gelb, Eric Conn, and Ashley Mitchell

Consistent with the Biden Administration’s promise to be “the most labor friendly administration” in history,” OSHA recently announced plans to publish a notice of proposed rulemaking (“NPRM”), as early as this Spring, to amend 29 CFR 1903.8(c), which is the regulation governing the rights to participate in OSHA inspections by non-employees of the inspected employer.

OSHA-savvy employers may remember that OSHA tried during the Obama/Biden Administration to give union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013, commonly referred to as “the Fairfax Memo.”  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

The question must be considered in the context of the existing regulatory text of 29 C.F.R. 1903.8(c):

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding a pretty clear regulatory limitation to third party inspection participation rights, OSHA’s responded to the unions interpretation request in the affirmative, explaining that notwithstanding: Continue reading →

OSHA Announces VPP Modernization Project

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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 →

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

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

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

Eric 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 10th, where the Committee primarily addressed recommendations and updates from NACOSH’s Heat Injury and Illness Prevention Work Group (“Work Group”), and wanted to provide you this update.

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

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

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

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By Eric J. Conn and Beeta B. Lashkari

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

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

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

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

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

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

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

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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!

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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 20th

Annual Cal/OSHA Update

Thursday, February 16th

OSH State Plan Update

Thursday, August 10th

Responding to Whistleblower Complaints

Tuesday, March 21st

Powered Industrial Trucks

Thursday, September 14th

Repeat, Willful, Egregious and SVEP

Thursday, April 13th

Investigations and Audit Reports

Thursday, October 5th

OSHA Rulemaking Update

Thursday, May 18th

OSHA’s PSM Standard & EPA’s RMP Rule

Tuesday, November 14th
Preparing for OSHA Inspections

Thursday, June 8th

Combustible Dust

Thursday, December 7th

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

Continue reading →

OSHA’s Proposed Permanent COVID-19 Standard for Healthcare Nears the Finish Line

Eric J. Conn 11 Comments

Conn Maciel Carey’s COVID-19 Task Force

Thankfully, it has been quite a while since our last COVID-19 rulemaking update.

As you will recall, OSHA reopened its rulemaking record for the COVID-19 Rule for Healthcare on March 22, 2022, and then on April 22nd, we submitted three sets of written comments on behalf of the Employers COVID-19 Prevention Coalition regarding issues facing: (1) retailers and retail pharmacies; (2) addressing embedded medical clinics and emergency response teams for manufacturers and other industrial worksites; and (3) addressing construction issues at healthcare workplaces.  We participated in OSHA’s Public Hearing for the rulemaking, held on April 27th – May 2nd, and then submitted two additional sets of post-hearing comments on May 23rd.  Then basically nothing happened.

We were beginning to think that OSHA had abandoned the rulemaking for a permanent COVID-19 Standard for Healthcare.  But we now have some significant news to share.  Last week, on December 8th, the Office of Management and Budget (OMB) updated its website to reflect that it officially has OSHA’s “Occupational Exposure to COVID-19 in Healthcare Settings” Standard “under review.”

The website reflects that OMB received the proposed final rule from OSHA on December 7th.  Here is a link to the page for this rulemaking and below is all the relevant information reflected on OMB’s website: Continue reading →

Process Safety Update: The Latest on EPA’s RMP and OSHA’s PSM Rulemakings

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By Eric J. Conn, Micah Smith, and Beeta Lashkari

EPA RMP Public Hearing

This week, on September 26-28, 2022, EPA has been hosting virtual public hearings related to its Risk Management Program (RMP) rulemaking.  Specifically, the hearings are addressing the RMP Safer Communities by Chemical Accident Prevention (SCCAP) proposed rule, which was signed by EPA Administrator Michael S. Regan on August 18, 2022, and proposes revisions to the RMP Rule to further protect vulnerable communities from chemical accidents, especially those living near facilities with high accident rates.  Per the EPA, “The proposed rule would strengthen the existing program and includes new safeguards that have not been addressed in prior RMP rules.”

The virtual public hearings will provide the opportunity to present information, comments or views pertaining to the SCCAP proposed rule.  In addition, EPA is accepting written comments during the public comment period, which closes on October 31, 2022.

For background, the RMP Rule has had a long and tortured rulemaking and litigation history.  EPA amended the RMP Rule on January 13, 2017, in the final days of the Obama Administration, following President Obama’s Executive Order (EO) 13650, “Improving Chemical Facility Safety and Security,” which directed EPA and other federal agencies to modernize policies, regulations, and standards to enhance safety and security in chemical facilities.  More details on the EO in the “OSHA PSM Stakeholder Meeting” section below.

EPA then received three petitions for reconsideration of the 2017 rule, and in December 2019, EPA issued a final rule reconsidering the changes made in January 2017.  There are petitions for judicial review of both the 2017 amendments and the 2019 reconsideration rules.  Specifically, the 2019 reconsideration rule challenges are being held in abeyance until October 3, 2022, by which time the parties must submit motions to govern, and the case against the 2017 amendments rule is in abeyance pending resolution of the 2019 reconsideration rule case.

So far as the SCCAP proposed rule is concerned, EPA issued a Continue reading →

U.S. Chemical Safety Board Issues Guidance to Clarify its Accidental Release Reporting Rule

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By Beeta Lashkari, Eric J. Conn, and Micah Smith

Earlier this month, on September 1, 2022, the U.S. Chemical Safety Board (CSB) announced the release of a new guidance document about the agency’s still-relatively new Accidental Release Reporting Rule.  The Accidental Release Reporting Rule, which went into effect in March 2020, requires owners and operators of stationary sources to report accidental releases that result in a fatality, a serious injury, or substantial property damage to the CSB within eight hours. Just a few months ago, the CSB published its first list of incidents that had been reported to the agency pursuant to the rule.

Of the new guidance document, CSB Interim Executive Steve Owens said:

“Our goal is to make sure that owners and operators report chemical releases to the CSB as required by law. While many companies already have been complying with the rule and submitting their required reports, this guidance should help resolve any uncertainties about the reporting requirement. If someone is unsure about what to do, they should report, rather than risk violating the rule.”

The new guidance has been a long time coming. Indeed, the agency Continue reading →

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

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By Andrew Sommer and Megan Shaked

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

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

Background about the Proposed Permanent Rule

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

Update on the Timeline for OSHA to Finalize the Permanent COVID Rule for Healthcare

Eric J. Conn 2 Comments

It’s been a while since our last update about OSHA’s rulemaking for the permanent COVID-19 rule for healthcare, which is very good news.  It was always a possibility that by the time OSHA got around to finalizing and issuing its permanent COVID-19 regulation that the pandemic would be in such a state that it would not make any practical, health, or political sense to actually issue the rule.  But that does not appear to be OSHA’s thinking right now, or the thinking of the DC Circuit and the nurses unions that continue to push OSHA to finalize the rule.

According to a sworn statement by Assistant Secretary of Labor for OSHA Doug Parker on July 25, 2022, OSHA remains “on track” to complete its long-term COVID-19 safety healthcare standard in September to October of 2022.  This is consistent with OSHA’s January 2022 statement that it intended to develop a permanent COVID-19 standard for healthcare workers within six to nine months.

Assistant Secretary Parker’s statement appears to be a reaction to inconsistent testimony from Secretary of Labor Marty Walsh before the Senate Appropriations Committee on June 15, 2022.  There, Secretary Walsh testified that OSHA would finalize the standard in three to six months, which sounded like a shift in OSHA’s target issuance date to later in the year or even next year.  Continue reading →

OSHA’s Heat Illness Rulemaking Update – Recent NACOSH Meetings

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By Eric J. Conn and Beeta B. Lashkari

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

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

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

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

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

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

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

Here is a summary of his observations.

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

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

OSHA’S Rulemaking to Expand the E-Recordkeeping Rule

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

OSHA Grants Request to Extend the Comment Period for the Proposed Amended E-Recordkeeping Rule

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By Eric J. Conn, Chair of CMC’s National OSHA Practice

On March 30th, OSHA published a proposal to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (aka the E-Recordkeeping Rule).  Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

In short, the proposed changes to the E-Recordkeeping Rule would:

  1. Replace the current requirement for all workplaces with 250+ employees to annually submit to OSHA’s electronic Injury Tracking Application the data from their 300A Annual Summary of work-related injuries, with a new requirement for workplaces with 100+ employees in the “high hazard industries” listed in new Appendix B to submit the full panoply of OSHA recordkeeping records – i.e., OSHA Forms 300 (the OSHA Log), 301 (detailed incident reports for each recorded injury), and the 300A Annual Summary;
  2. Require workplaces with 20+ employees in another larger list of so-called “high-hazard industries” (new Appendix A) to submit the data from their 300As; and
  3. Compel all submitting employers to include their proper company name with the electronic data submissions.

That Federal Register Notice set the deadline for stakeholders to submit comments for Tuesday, May 31 — the day after Memorial Day and one week after the deadline to submit post-hearing comments about OSHA’s proposed Permanent COVID-19 Standard for Healthcare.  Because of that crowded schedule and the importance of the proposed changes to the E-Recordkeeping Rule, last week, on behalf of Conn Maciel Carey’s Employers E-Recordkeeping Rulemaking Coalition, we prepared and filed a Letter to OSHA Requesting an Extension of the Comment Period. Continue reading →

OSHA Conducts Comprehensive Heat Illness Prevention Stakeholder Meeting

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By Beeta B. Lashkari and Eric J. Conn

On Tuesday, May 3, 2022, OSHA held a virtual stakeholder meeting to discuss and receive public input about OSHA’s various initiatives designed to protect workers from heat-related hazards.  Below is a summary of the stakeholder meeting, as well as the comments we presented on behalf of our Employers Heat Illness Prevention Coalition.  If you would like to view the entire meeting, or view the agenda or some of the heat illness-related materials OSHA made available, they are available on OSHA’s Heat Forum Public Stakeholder Meeting website.

The meeting ran for approx. 6 hours (from noon to 6 PM).  More than 3,000 stakeholders signed up for the meeting, and more than 500 people requested to speak, including OSHA representatives, an OSHA leadership panel, and four batches of public comment.  Public commenters were each allotted a strictly enforced 3-minute window to speak.

Opening Remarks from Heads of DOL/OSHA

The Assistant Secretary of Labor for OSHA, Doug Parker, kicked off the meeting with opening remarks.  Mr. Parker began by explaining that heat-related hazards do not Continue reading →

Coalition to Work on OSHA’s Rulemaking to Expand the E-Recordkeeping Rule

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On March 30th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (i.e., the E-Recordkeeping Rule).  Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

As we have had to do too often the last couple of years, Conn Maciel Carey’s OSHA Team is organizing a flat fee-based rulemaking coalition of employers and trade groups to collaborate to work on submitting public comments on this new proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.

We held a kickoff call for the coalition earlier this week.  If you were unable to attend, we are pleased to share links to the recording and a copy of the slides that we used. We expect to have a follow up virtual meeting in May to solicit detailed input from coalition participants and review our advocacy strategy.

There is still time to join our coalition if your organization would like to partner with us on this rulemaking.  OSHA requested public comments to be submitted by May 31, 2022.

We expect to address, among other important concerns, that: Continue reading →

OSHA Launches an Enforcement National Emphasis Program For Outdoor and Indoor Heat Illness Prevention

Beeta B. Lashkari 1 Comment

By Beeta Lashkari and Eric Conn

Last week, on April 12, 2022, OSHA announced that it has launched an enforcement National Emphasis Program (“NEP”) for Outdoor and Indoor Heat-Related Hazards.  The Heat Illness NEP applies to both indoor and outdoor workplaces, including general industry, construction, maritime, and agriculture.  The NEP is already in effect – as of April 8th – even before OSHA made its April 12th announcement, and will remain in effect for three years unless canceled or extended by a superseding directive.

Secretary of Labor Walsh, joined by Vice President Harris, announced this new enforcement program at a speech at the Sheet Metal Workers Local 19 Training Center in Philadelphia with these remarks:

“Tragically, the three-year average of workplace deaths caused by heat has doubled since the early 1990s. These extreme heat hazards aren’t limited to outdoor occupations, the seasons or geography. From farm workers in California to construction workers in Texas and warehouse workers in Pennsylvania, heat illness – exacerbated by our climate’s rising temperatures – presents a growing hazard for millions of workers….  This enforcement program is another step towards our goal of a federal heat standard. Through this work, we’re also empowering workers with knowledge of their rights, especially the right to speak up about their safety without fear of retaliation.”

Below is an analysis of the mechanics of OSHA’s Heat Illness NEP: Continue reading →

Washington’s New Safety Standard for Protecting Temporary Workers

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By Aaron R. Gelb & Beeta B. Lashkari

Last Spring, Washington governor Jay Inslee signed into law Substitute House Bill (SHB) 1206, creating new duties for staffing agencies and worksite employers to protect the safety of temporary workers.  The law, codified at Revised Code of Washington (“RCW”) 49.17.490, went into effect on July 25, 2021, but received scant attention from the media or safety professionals—no doubt, in large part, due to an ongoing focus on the COVID-19 pandemic.  Nonetheless, given the extent to which many employers rely on temporary workers to staff their operations, this new law is one that covered employers should pay attention to and develop a plan to help ensure compliance.  Below is a summary of the scope and requirements of the new standard, as well best practice tips for covered employers.

Who Is Covered by the New Standard?

The new standard generally applies to staffing agencies and worksite employers, as defined by the standard:

  • A “staffing agency” is an employer as defined in Chapter 49.17 of the RCW and North American industry classification system (NAICS) 561320 and means an organization that recruits and hires its own employees and temporarily assigns those employees to perform work or services for another organization, under such other organization’s supervision, to:
    • (i) [s]upport or supplement the other organization’s workforce;
    • (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages, or seasonal workloads; or
    • (iii) perform special assignments or projects.
  • “Worksite employer” is an employer as defined in Chapter 49.17 of the RCW and means an individual, company, corporation, or partnership with which a staffing agency contracts or otherwise agrees to furnish persons for temporary employment in the industries described in sectors 23 and 31 through 33 of the North American industry classification system.

Importantly, per the definition of “worksite employer” Continue reading →

Virginia OSHA Rescinds Its “Permanent” COVID-19 Rule and Introduces New Workplace Guidance

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By Conn Maciel Carey’s COVID-19 Task Force

Under the direction of then-Democratic Governor Ralph Northam, the Commonwealth of Virginia was the very first U.S. State to implement a broad, all-industry programmatic COVID-19 emergency temporary standard (“ETS”) way back in July 2020.  Through all the fits and starts with federal OSHA’s COVID-19 rulemaking, VOSH’s COVID-19 regulation was a consistent presence through most of the pandemic.  Indeed, that ETS was made “permanent” in January 2021, months before federal OSHA had even adopted its COVID-19 ETS for Healthcare.

However, on his first day in office – January 15, 2022 – new Virginia Governor Glenn Younkin signed an Executive Order directing the Virginia Safety and Health Codes Board (“Board”) to determine whether there was a continuing need for these regulations (with more than a little pressure from the Governor’s office to conclude it was not).  Not surprisingly, under that political pressure, and in the wake of the Supreme Court’s harsh decision about federal OSHA’s authority to regulate COVID-19, by mid-February, the Board had adopted the position of the Virginia Department of Labor and Industry (“DOLI”) that “based on emerging scientific and medical evidence, [COVID-19] no longer constitute[s] a grave danger to employees in the workplace.”

That Board finding started a 30-day clock for public notice and comment about the Board’s intention to repeal the rule, and as expected, the Board voted on March 21st to rescind the ETS (effective March 23rd, 2022).

So where does that leave Virginia employers?  Continue reading →

OSHA’s Rulemaking to Expand the Electronic Recordkeeping Rule

Eric J. Conn 3 Comments

By Eric J. Conn

Who else misses the time when OSHA would issue a new regulation only once every decade or so?!?!  Alas, OSHA has been quite busy the last few months on the rulemaking front, and it doesn’t seem to be slowing down anytime soon.  You’ve heard a lot from us about the various COVID-19 rulemaking efforts – two emergency standards and a new effort to make permanent the COVID-19 standard for healthcare.  Now, OSHA has turned its attention to a more traditional OSHA subject – injury and illness recordkeeping.

Specifically, on March 30th, OSHA published a new proposed rule to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule; i.e., the Electronic Recordkeeping Rule.

Background on OSHA’s E-Recordkeeping Requirements

OSHA first issued regulations requiring that employers record occupational injuries and illnesses in 1971.  Pursuant to 29 CFR 1904.7, employers must keep records of work-related injuries and illnesses that involve death, loss of consciousness, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional.  Additional requirements were added for Reporting of Fatality and Multiple Hospitalization Incidents, and later, in 2014, OSHA expanded the types of incidents that had to be reported to OSHA; i.e., a single in-patient hospitalization, amputations, and losses of an eye. (79 FR 56130)

In 2016 (amended in 2018), annual electronic injury recordkeeping data submissions to OSHA became mandatory both for establishments with 250 or more employees, and establishments with 20-249 employees in certain designated industries.  The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we have chronicled in the past,  the E-Recordkeeping Rule has had a long and tortured history.  Before promulgation of the E-Recordkeeping Rule, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employer injury and illness recordkeeping data was maintained internally by employers. In a major policy shift, in 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to proactively submit injury and illness data to OSHA through OSHA’s Injury Tracking Application (“ITA”).  More specifically, the 2016 E-Recordkeeping Rule required: Continue reading →