We did not have to wait long for the big update we have been holding our breath about – what the Biden Administration’s plans will be for a federal COVID-19 emergency standard. As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on OSHA’s approach to managing the COVID-19 crisis in the workplace, but the answer about a federal COVID-19 ETS is not as clear as we expected, or at least, the definitive answer will come a little later.
In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden has directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19 to execute his Administration’s policy on worker safety:
“Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.”
Specifically, President Biden has directed the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace: Continue reading →
ANNOUNCING CONN MACIEL CAREY’S
2021 OSHA WEBINAR SERIES
As the Trump Administration hands over the keys to President-Elect Biden and a new Democratic Administration, OSHA’s enforcement and regulatory landscape is set to change in dramatic ways, from shifting enforcement priorities, budgets and policies, to efforts to reignite OSHA’s rulemaking apparatus. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, handled COVID-19 enforcement with a light touch, pumped the brakes on almost all rulemaking in general, and declined to issue an emergency COVID-19 standard in particular, the pendulum swing at OSHA is likely to be more pronounced than during past transitions. Accordingly, it is more important now than ever before to pay attention to OSHA developments.
Conn Maciel Carey’s complimentary 2021 OSHA Webinar Series, which includes (at least) monthly programs put on by OSHA-specialist attorneys in the firm’s national OSHA Practice, is designed to give employers insight into developments at OSHA during this period of flux and unpredictability.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual OSHA Webinar Series, click here to subscribe to our YouTube channel to access those webinars.
Like so many other aspects of our lives, our Annual Process Safety Summit in Washington, DC will look a little different in the year of COVID-19. Rather than gathering together in person in our Nation’s Capital for two full days in October, the 3rd Annual Process Safety Summit will be a virtual event, and it will take place in shorter segments on December 8-9, 2020.
But what will not change is the Summit’s one-of-a-kind opportunity to convene safety and legal professionals from chemical manufacturing, petroleum refining, paper, and other process industries with the senior government officials responsible for regulating process safety. Check out our working agenda and register today.
What is the Process Safety Summit in Washington, DC?
The Process Safety Summit in Washington, DC is an annual event, typically based in our nation’s Capital. The 2nd Annual Summit last Fall welcomed more than 175 safety, process 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 and into a Biden Administration, best practices, and other key process safety regulatory issues impacting Industry.
This Summit fills an important gap for employers operating the process safety regulatory environment.
Over the course of the last month, several of our retail clients have been visited by Michigan OSHA (MIOSHA) for COVID-19 enforcement inspections in circumstances without an employee complaint or any self-reported work-related COVID-19 hospitalization or death. The reason for these inspections, it turns out, is MIOSHA has launched a State Emphasis Program (SEP) on COVID-19 in Bars, Restaurants, Gas Stations, Grocery and Convenience Stores, and Other Retail. We got our hands on the Directive for the Emphasis Program. Here’s a summary of what Michigan employers in those industries need to know about MIOSHA’s new enforcement strategy.
The Directive lays out MIOSHA’s approach for selecting various retail and hospitality workplaces for programmed inspections about COVID-19 infection control.
The stated purposes of the Emphasis Program is to “increase MIOSHA’s presence in retail establishments to ensure workers are protected from SARS-CoV-2,” because “employees who come in contact with large numbers of people as a result of their employment [like in retail] are at elevated risk of infection.”
The inspections are evaluating the employer’s adherence to Governor Whitmer’s Executive Orders for COVID-19, OSHA Guidance on Preparing Workplaces for COVID-19, and applicable CDC guidance for COVID-19.
The agency has created a targeting list of retail/hospitality businesses broken down as follows:
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 complimentary2020 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 hereto 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.
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.
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.
OSHA’s enforcement authority, specifically as it relates to the agency’s ability to expand an unprogrammed inspection beyond its original scope, has been limited, at least for employers in the Southeast. Late last year, in United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the 11th Circuit affirmed a district court decision to quash an administrative inspection warrant that would have permitted OSHA to expand an inspection of Mar-Jac Poultry, Inc.’s (“Mar-Jac”) poultry processing facility in Georgia, initiated as a partial scope inspection in response to a single, specific reported injury, to become a comprehensive inspection under a Regional Emphasis Enforcement Program. This decision is important for employers because OSHA’s inspection authority has generally been understood to be quite broad, and judges have generally deferred to OSHA when applying the applicable administrative probable cause standard to OSHA’s inspection authority. But in Mar-Jac, the 11th Circuit determined that an unprogrammed inspection initiated as a result of a specific reported injury could not lawfully be expanded to include other areas of the facility, other hazards unrelated to the specific reported injury, and other aspects of Mar-Jac’s safety program, because the evidence presented by OSHA in support of its warrant application was inadequate to establish reasonable suspicion of the presence of violative conditions unrelated to the reported injury.
Background of the Case
OSHA decided to inspect Mar-Jac’s poultry processing facility in Georgia after the facility called OSHA to report a serious injury that resulted in an in-patient hospitalization on February 4. 2016. The injury occurred on February 3rd, when an employee attempted to repair an electrical panel with a non-insulated screwdriver, resulting in an arc flash and serious burns to the employee. After receiving the injury report, OSHA opened an unprogrammed inspection at the facility on February 8th. At that time, OSHA asked the employer for consent to inspect both Continue reading →
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 →
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 inConn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.
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.
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.
[Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
[Part 2]: Five common mistakes employers make when implementing the LOTO requirements.
Part 1: Why it is Critical for Employers to Get LOTO Right
The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.
Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized. Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled. The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.
OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.” OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.
While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.
1. Amputation Injuries Create Special Reporting Obligations
Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA. Continue reading →
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.
Workplace violence has become a serious issue for employers throughout the United States. In the wake of the recent mass shootings that occurred in San Bernardino, CA and Hesston, KA, both of which occurred at least in part at an employer’s workplace, it is important for employers to be aware of the potential for violence in the workplace and ways in which it can be prevented. Although these two incidents may not have been foreseeable or preventable, these incidents will nevertheless bring more attention to this issue, including by litigants and regulators.
Workplace violence can be categorized in three ways:
Violence by an employee;
Violence by a stranger; or
Violence by a known third party.
Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a regulatory investigation and enforcement action. In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of co-employees or third parties. However, even if an employer evades civil liability, employers may still be subject to an investigation by the Virginia Department of Labor and Industry, and incur significant civil penalties.
Given the potential for both a civil suit and a government investigation, employers should implement workplace policies and programs that help keep the workplace safe and free of workplace violence. This article details the potential legal liabilities and penalties employers may incur from workplace violence incidents, and provides guidance on how prevent such incidents or liabilities from occurring. Continue reading →
Over the course of the next year, employers can expect to see longer, more comprehensive OSHA inspections that focus on complex safety and health hazards. This change is associated with OSHA’s new enforcement protocol it refers to as the “Enforcement Weighting System” that uses a new metric called the “Enforcement Unit.”
Historically, OSHA operated under the assumption that more inspections are better. OSHA’s philosophy was that the more workplaces that OSHA is able to inspected, the greater the impact OSHA would have on safety and health, and the more employees it would be able to protect. At the end of every year, the national office would produce data and graphs showing the number of inspections, and gave no consideration for the different types of inspections or the range of complexity of the issues faced in each inspection. It was the classic quota protocol with the classic weaknesses that quota cause – driving enforcement to the simplest, quickest hitting inspections available.
A traditional inspection at a small construction site can last as little as a couple of hours with only one compliance officer, whereas a wall-to-wall inspection at a petrochemical manufacturing plant could last days, if not months, requiring multiple compliance officers and specialists. Under OSHA’s historical tracking system, both of those types of inspections were counted as the same unit of measure – one inspection. To account for this wide variation in resources that inspections can consume, in personnel and man hours, OSHA has adopted the new Enforcement Weighting System.
The new tracking system kicked in at the start of the new federal fiscal year. OSHA piloted the system over the two previous fiscal years. At the core of the new Enforcement Weighting System is the introduction of a new unit of measure for inspections – the Enforcement Unit. Different types of inspections are assigned a different number of Enforcement Units. For example, the simple, small construction site inspection would be assigned a single Enforcement Unit, whereas the wall to wall chemical facility inspection would receive seven Enforcement Units.
Enforcement Units will be the new metric that OSHA’s national office evaluates at the end of the fiscal year and tracks from year-to-year to evaluate enforcement performance of its various regions and area offices.
“While [the old] metric served a useful purpose, it penalized those field managers that took on more complex inspections that require a great amount of CSHO effort.”
The ball has dropped, the confetti has been swept out of Times Square, and 2015 is in the books. It’s time to look back at the year 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 ours), is what can we expect from OSHA in this final year of the Obama Administration? This webinar event reviewed enforcement and rulemaking issues from 2015, and identified the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.
In the forty plus years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than eighty total OSH Act criminal cases have been prosecuted – fewer than two per year – and only approximately a dozen have resulted in criminal convictions. Historically, the prosecutions typically have targeted cases in which the employers were alleged to have falsified documents and lied to OSHA in conjunction with underlying regulatory violations relating to an employee fatality. In other words, the “cover-up,” so to speak, was worse than the crime. Chronic violators and employers who demonstrated a systematic rejection of worker safety laws also were more likely to face charges.
One primary reason that historically so few criminal cases have been pursued under the Occupational Safety and Health Act (“OSH Act”) is that it is challenging to prove a criminal violation under the Act. Combine that with the fact that, even with a conviction, the consequences are less significant than the consequences for many other white collar crimes and you end of with a situation where the criminal provision of the OSH Act is rarely employed.
Here is how it works. Section 17(e) states:
“Any employer who willfully violates any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of any regulations proscribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both.”
Pursuant to the Sentencing Reform Act of 1984, 18 USC § 3551 et seq., which standardized penalties and sentences for federal offenses, the criminal penalty for willful violations of the OSH Act causing loss of human life was amended to be punishable by fines up to $250,000 for individuals (18 U.S.C. Sec. 3574(b)(4)), and $500,000 for organizations (id. at Sec. 574(c)(4)).
Accordingly, if an employer’s willful violation of an OSHA standard causes the death of an employee, Continue reading →
On June 25, 2015, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Memorandum entitled: “Inspection Guidance for Inpatient Healthcare Settings.”The Enforcement Memorandum expands the scope of inspections OSHA will conduct at hospitals, nursing homes and other healthcare facilities as part of an on-going enforcement effort targeting the healthcare industry.
OSHA’s Healthcare Enforcement Initiative
OSHA’s healthcare enforcement initiative covers “Hospitals” (NAICS 622) and “Nursing and residential care facilities” (NAICS 623). It requires all OSHA inspections (whether programmed or in response to an incident of complaint) in the covered industries to include an evaluation of the following five major hazards:
Ergonomics (i.e., musculoskeletal disorders from patient/resident handling);
Bloodborne pathogens;
Workplace violence;
Tuberculosis; and
Slips, trips and falls.
This initiative follows the April 2015 expiration of the Nursing Home National Emphasis Program, which also focused on similar hazards.
OSHA’s increased scrutiny of the healthcare industry can be attributed to Continue reading →
In April of 2013, OSHA declared that protecting temporary workers would become a top priority, and that has proven true in 2014 with the roll-out of OSHA’s Temporary Worker Initiative and in 2015 with a heavy dose of enforcement and new guidance for employers. OSHA maintains that temporary employees are entitled to the same safety protections as other workers, and no one would dispute that, but the question remains, who is responsible – the staffing agency or the host employer – when a temporary worker is exposed to workplace hazards?
Although OSHA has regulated the treatment of temporary workers for many years, its new emphasis on protecting temporary workers has been sparked by several concerns. Most prominent among them is the surge (and expected continued growth) of the temporary workforce, the nature of the work performed by temporary workers, and recent fatalities among temporary workers. For purposes of the Initiative, OSHA defines “temporary worker” to include only one who is working in a host employer/staffing agency employment structure.
OSHA’s stated goals for the Temporary Worker Initiative are to:
Protect temporary workers from workplace hazards;
Ensure staffing agencies and host employers understand their safety and health obligations; and
Allow OSHA to learn information regarding hazards in workplaces utilizing temporary workers.
To achieve these goals, OSHA has been producing compliance assistance materials, such as fact sheets and webpages, conducting outreach to affected stakeholders, and of course, exercising its enforcement hammer. Specifically, OSHA directed its inspectors to Continue reading →
Today’s OSHA has increased enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, from more criminal referrals to a heavy dose of public shaming. It is more important than ever to be prepared. This complimentary webinar series has been designed to give employers the tools they need to avoid becoming an OSHA-enforcement poster child.
We have recorded and will continued to record each of the webinars, and as we move through the year and conduct these webinars, we are pleased to provide links below to the recordings. There are also links below to the registration pages for the remaining webinars in the series. Check out the completed webinars and plan to join us for all or some of the rest of the series.
