Workplace Violence

Announcing Conn Maciel Carey LLP’s 2023 OSHA Webinar Series!

Eric J. Conn Leave a comment

ANNOUNCING CONN MACIEL CAREY LLP’S
2023 OSHA WEBINAR SERIES

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

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

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

2022 Year in Review and 2023 Forecast

Thursday, January 26th

 Mid–Year Review of OSHA Developments

Thursday, July 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 →

Preventing and Responding to Workplace Violence [Webinar Recording]

Theresa Green Leave a comment

On Tuesday, October 11, 2022, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, presented a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized serious hazards, and OSHA has instituted enforcement actions under its General Duty Clause after incidents of workplace violence. OSHA has also initiated a rulemaking to address workplace violence in specific industries. For its part, the EEOC has also prioritized ways to effectively prevent and address workplace violence, particularly in the form of workplace harassment. And outside of OSHA and the EEOC, employers can also be held liable for workplace violence through other claims such as negligent hiring and supervision.

In this webinar, attendees learned: Continue reading →

[Webinar] Preventing and Responding to Workplace Violence

Theresa Green Leave a comment

On Tuesday, October 11, 2022 at 1 p.m. EST, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, will present a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to Continue reading →

Conn Maciel Carey’s 2022 OSHA Webinar Series

Theresa Green Leave a comment

ANNOUNCING CONN MACIEL CAREY’S
2022 OSHA WEBINAR SERIES

A full year into the Biden Administration, the senior leadership team at federal OSHA is set, the agency’s new regulatory agenda has been revealed, and the enforcement landscape has begun to take shape, revealing a dramatic shift in priorities, including stronger enforcement, higher budgets and more robust policies protecting workers, and a renewed focus on new rulemaking. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, relied almost exclusively on the General Duty Clause to enforce COVID-19 safety measures, drastically curtailed rulemaking, and declined to issue an emergency COVID-19 standard, the pendulum swing at OSHA has already been more pronounced than during past transitions. Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.

Conn Maciel Carey LLP’s complimentary 2022 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA 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 2022 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 seven 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 OSHA Webinar Series – Program Schedule

Continue reading →

Pres. Biden Nominates an Assistant Secretary of Labor for OSHA – Doug Parker, the Current Head of Cal/OSHA

Eric J. Conn 2 Comments

By Eric Conn, Fred Walter, and Beeta Lashkari

Last Friday, April 9th, the White House announced Pres. Biden’s nomination of Doug Parker for Assistant Secretary of Labor for OSHA – the top job at federal OSHA.  Mr. Parker is currently the Chief of California’s Division of Occupational Safety and Health (Cal/OSHA), serving as the Head of Cal/OSHA since the summer of 2019.  Mr. Parker was considered a leading candidate for this nomination to head OSHA since he was picked for a spot on the Biden-Harris Labor Transition Team to focus on worker safety and health issues.

In his role as Division Chief at Cal/OSHA, Mr. Parker has been involved in numerous major developments, including:

  • Developing the enforcement plan for Cal/OSHA’s new-ish regulation for Workplace Violence Prevention in Healthcare;
  • Rolling out Cal/OSHA’s emergency Wildfire Smoke Rule and overseeing the development of the Permanent Wildfire Smoke Rule;
  • Overseeing an extension of the statute of limitations for injury and illness recordkeeping violations – making them “continuing violations” for the five-year record-retention period;
  • Advancing a rulemaking for an Indoor Heat Illness Prevention standard; and
  • Implementing a Cal/OSHA operational change to significantly expand the agency’s definition of “Repeat” violations

Even with all that, Mr. Parker’s tenure at Cal/OSHA will likely be best remembered for his role in developing and rolling-out Continue reading →

Announcing Conn Maciel Carey’s 2021 OSHA Webinar Series

Theresa Green Leave a comment

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 the 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.

2021 OSHA Webinar Series – Program Schedule

OSHA’s 2020 in Review
and 2021 Forecast

Thursday, January 14th
Respiratory Protection Rules –
Top 5 Risks and Mistakes

Wednesday, May 12th
Cal/OSHA’s COVID-19
Emergency Temporary Standard

Tuesday, January 26th
What to Expect from DOL Under
a Biden Administration

Wednesday, June 16th
What Employers Need to Know
About the COVID-19 Vaccine

Thursday, February 11th
Mid-Year Review of OSHA Developments

Thursday, July 22nd
COVID-19 Vaccine Distribution and Administration: OSHA Considerations

Thursday, February 18th
OSHA VPP and other Cooperative Programs

Tuesday, August 24th
Update About the
Chemical Safety Board

Tuesday, March 16th
Update about OSHA’s Electronic Recordkeeping Rule

Wednesday, September 8th
Annual Cal/OSHA Enforcement
and Regulatory Update

Tuesday, March 23rd
OSHA Issues During
Acquisitions and Divestitures

Thursday, October 7th
COVID-19 OSHA Enforcement
and Regulatory Update

Wednesday, April 20th
Updates about OSHA’s PSM
Standard EPA’s RMP Rule

Tuesday, November 16th
Recap of Year One of the Biden Administration

Tuesday, December 14th

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

Continue reading →

CDC Guidance for Retail and Service Industries on Workplace Violence Associated with COVID-19 Policies

Beeta B. Lashkari Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

In recent months, we have heard too many stories and seen too many viral videos about retail clerks and restaurant employees facing violent attacks and threats from belligerent anti-mask customers who have been refused service or otherwise asked to adhere to the mask mandates issued by the Governors or Health Departments in their states.  This includes the tragic tale of the store security guard who was shot and killed in Michigan after telling a customer at a discount store to wear a state-mandated face mask.

Responding to the surge in workplace violence faced by retailers and others in the service industries, on September 1, 2020, the CDC issued guidance on Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses.  The new guidance covers how to manage the threat of violence from customers or others who are asked to comply with Governors’ or Health Department mandates or the businesses’ own infection control policies, such as requiring masks to be worn by customers, asking customers to follow social distancing rules, and setting limits on the number of customers allowed inside at one time.  Specifically, the guidance discourages retailers from becoming the enforcer in these situations, and includes recommendations like calling 911 and not arguing with a customer who refuses to comply with the rules. 

This guidance is vital as we have seen the opposite instruction from such governmental agencies as Michigan OSHA (“MIOSHA”), Oregon OSHA (“OR OSHA”), and the New Mexico Occupational Health and Safety Bureau (“NMOHSB”).  Indeed, those state OSH Programs have been issuing citations and shutdown orders for retailers and restaurants who do not refuse service to customers unwilling to wear a face covering onsite.  CDC’s guidance will hopefully force these agencies to be sensible about the terrible dilemma they are forcing on businesses and their front line employees who feel the brunt of these enforcement policies that would turn them into law enforcement. Continue reading →

[Webinar Recording] Cal/OSHA Developments that California Employers Must Track

Megan Shaked Leave a comment

On April 16, 2020, Andrew Sommer, Eric J. Conn, and Megan Shaked of the law firm Conn Maciel Carey presented a complimentary webinar: Cal/OSHA Developments that California Employers Must Track.OSHA Capture

California’s Division of Occupational Safety and Health, aka Cal/OSHA, is perhaps the most aggressive and enforcement-heavy 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.

During this webinar, participants learned about:

Continue reading →

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

Eric J. Conn 4 Comments

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

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

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

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

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd
All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd
OSHA Settlement
Tips And Strategies

Tuesday, February 25th
Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th
Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th
Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd
Annual Cal/OSHA Update

Thursday, April 16th
Impact of the Election on OSHA

Thursday, October 22nd
E-Recordkeeping and
Injury Reporting Update

Wednesday, May 20th
Updates about OSHA’s PSM
Standard and EPA’s RMP Rule

Tuesday, November 17th
OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th
Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

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

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

Eric J. Conn Leave a comment

On May 28, 2019, Andrew J. Sommer, Eric J. Conn and Megan S. Shaked  of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “Key Cal/OSHA Issues California Employers Must Track.”

The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation.  California employers face a host of requirements that other employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

Of particular significance in the coming year, California employers should be on the lookout for a new permanent E-Recordkeeping injury data submission rule, a new focus on finding Repeat violations, and the roll-out of several new California-unique rules.

Participants in this webinar learned about:​

Continue reading →

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

Eric J. Conn Leave a comment

We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking.  We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases.  And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.

As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.

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

Tuesday, January 15th
Tips to Survive an OSHA Inspection

Tuesday, July 23rd
Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th
Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th
OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th
OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th
Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th
What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd
New Cal/OSHA Enforcement Issues

Tuesday, May 28th
 OSHA PSM and EPA RMP Update

Tuesday, November 19th
The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th
Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th
See below for descriptions of the webinars and registration links Continue reading →

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

Megan Shaked 1 Comment

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:

Continue reading →

Trump Admin. Pumps the Brakes on New OSHA Rules in its First Regulatory Agenda

Eric J. Conn Leave a comment

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

President Trump was carried to the White House on promises (or threats) of rolling back government regulations.  At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed Pres. Trump’s agenda with the phrase: “deconstruction of the administrative state,” meaning the system of regulations the President believes have stymied economic growth. OSHA regulations are apparently at the heart of this deconstruction.  Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape, from the Congressional Review Act repeal of Obama-era midnight rules, to a budget proposal that could shrink OSHA’s enforcement efforts and prioritize compliance assistance, to a series of Executive Orders that shift OSHA to a business friendly regulatory philosophy.

And now, the Trump Administration has issued its first “Unified Agenda of Regulatory and Deregulatory Actions,” and the path to “deconstruction of the administrative state” is clearer.  The spring Unified Regulatory Agenda explains what agencies like OSHA and EPA will undertake on the rulemaking front, and the shift in the Dept. of Labor’s regulatory agenda for rules and standards affecting workplace safety is more pronounced than ever.  The new Regulatory Agenda places a bevy of Obama-era regulatory priorities out in the cold.  Among them, new standards to address infectious diseases in healthcare, various chemical exposures, and other broad-based initiatives have been canceled or placed on the regulatory back burner.

Here’s a breakdown of what Pres. Trump’s first Regulatory Agenda reveals about OSHA’s future plans:

Controversial Rules Off the Table

To the relief of industry advocates who spent years wringing their hands over OSHA’s aggressive rulemaking agenda during the Obama Administration, the new Administration put many of the Agency’s previous plans on ice.  This set of rules will not see further action for years.

For example, a comprehensive rule addressing combustible dust, which has been in the works for nearly a decade, is off the table. This rulemaking was spurred by a recommendation from the U.S. Chemical Safety & Hazard Investigation Board, and was pursued by top officials in the Obama-era OSHA.  The Trump Administration has removed it from the Regulatory Agenda.

Here are some of the higher profile OSHA rulemaking efforts that are now effectively dead in the water: Continue reading →

New Cal/OSHA Issues that California Employers Must Understand [Webinar Recording]

Megan Shaked Leave a comment

On April 11th, Andrew J. Sommer and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “New Cal/OSHA Issues that California Employers Must Understand.” 

The state of California’s Division of Occupational Safety and Health (DOSH), 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.

In light of new Cal/OSHA standards taking effect in 2017 and others on the horizon, this is the perfect time for companies doing business in the Golden State to revamp their safety programs and take necessary steps to ensure compliance with the latest Cal/OSHA safety regulations.

Participants in this complimentary webinar learned about the following:

  • Cal/OSHA’s New Repeat Violation Rule
  • Cal/OSHA’s New Workplace Violence Rule for Health Care Facilities
  • New Law Mandating the Development of Heat Illness Prevention Regulations for Indoor Workplaces
  • Changes to Cal/OSHA Penalties on the Horizon
  • Other Industry Specific Developments

Here is a link to the recording of the webinar. Continue reading →

Cal/OSHA’s Workplace Violence Rules for Health Care Take Effect April 2017

Megan Shaked Leave a comment

By Andrew J. Sommer and Eric J. Conn

Effective April 1, 2017, a new California Occupational Safety and Health Standards Board (“Standards Board”) regulation at Title 8, Section 3342 requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan.  The passage of these regulations came after nearly two years of meeting and work within the Agency, and more than two years after the California legislature passed Senate Bill 1299, which instructed the Standards Board to implement these workplace violence regulations.

Rules Apply to Health Care Facilities

Senate Bill 1299 only directed the Standards Board to adopt regulations requiring licensed hospitals to adopt violence prevention plans to protect health care workers and other facility personnel from aggressive and violent behavior.  The regulations that were adopted by the Standards Board, however, apply not just to licensed hospitals, but more broadly to any “health facility,” defined as:

“any facility, place or building that is organized, maintained, and operated for diagnosis, care, prevention or treatment of human illness, physical or mental…to which [] persons are admitted for a 24-hour stay or longer.”

Additionally, the regulations apply to the following facilities regardless of their size or how long a patient stays there:

  1. Home health care and home-based hospice;
  2. Emergency medical services and medical transport, including services provided by firefighters and other emergency responders;
  3. Drug treatment programs;
  4. Outpatient medical services to the incarcerated in correctional and detention settings.

Immediate Requirement to Begin Reporting Violent Incidents

Beginning April 1, 2017, every general acute care hospital, acute psychiatric hospital and special hospital generally must report to the Division of Occupational Safety and Health (DOSH) any incident involving Continue reading →

OSHA and Employment in the Workplace Bathroom: Transgender, ADA, Sanitation and Accessibility Issues

Eric J. Conn Leave a comment

By Jordan B. Schwartz and Eric J. Conn

OSHA has long enforced sanitation and accessibility standards for restrooms for workers – an idea that generally makes sense viewed as a health concern.  In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.bathroom

Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify.  In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the controversial transgender issue.  This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.

OSHA Bathroom Requirements

In terms of bathroom access, there are two OSHA concerns primarily at play (aside from the new transgender issue), which often overlap:

  1. providing employees with prompt access to a bathroom; and
  2. ensuring the workplace bathroom is maintained in a sanitary condition.

Toilets must be provided and accessible to all employees at every fixed work site. This means Continue reading →

Workplace Violence: Employer Liability in Virginia and Potential VOSH Penalties

Daniel C. Deacon Leave a comment

By Daniel C. Deacon and Kara M. Maciel

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,WPV Image these incidents will nevertheless bring more attention to this issue, including by litigants and regulators.

Workplace violence can be categorized in three ways:

  1. Violence by an employee;
  2. Violence by a stranger; or
  3. 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 →

Expect More Comprehensive OSHA Inspections Under a New “Enforcement Weighting System”

Amanda Strainis-Walker 3 Comments

By Amanda R. Strainis-Walker and Eric J. Conn

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 Inspection Weighting 2measure – 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.

Assistant Secretary of Labor for OSHA, Dr. David Michaels, explained in the Memorandum announcing the Enforcement Weighting System:

“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 new Enforcement Weighting System is designed to Continue reading →

Workplace Violence: No Longer Just a Police Issue [Webinar Recording]

Eric J. Conn Leave a comment

On Tuesday, November 10, 2015, Eric J. Conn and Kara M. Maciel delivered a webinar regarding “Workplace Violence: No Longer Just a Police Issue.”

Every year, approximately 10% of workplace fatalities result from intentional violent acts.  The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence.  This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties.  Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts.  Beyond OSHA, workplace violence can also implicate other employment laws.  For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA.  Likewise, Workplace Violence Webinar Cover SlideHR issues related background checks and negligent hiring could also contribute to civil liability.

Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices.  This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so.  It also provided employers with the knowledge and tools they need to Continue reading →

OSHA’s New “Non-Mandatory” Workplace Violence Guidance for Healthcare Employers

Eric J. Conn Leave a comment

By Eric J. Conn and Kathryn M. McMahon

In April 2015, OSHA released new “Guidelines for Preventing Workplace Violence for Health Care and Social Services Workers,” reflecting a few years of work updating an existing set of guidelines in this area from 2004.  The development of this update was driven by OSHA’s concern over the number of workplace violence incidents in the hospital, nursing care, and residential home health industries. 2013 BLS statistics show thatWorkplace Violence 70% of the 23,000 known workplace assaults occurred in the health care / social services industries.  The new Guidelines incorporate research that has been conducted since 2004 into the causes of workplace violence in health care settings, risk factors that accompany working with patients or clients who display violent behavior, and the appropriate preventive measures that can be taken.

OSHA’s Guidelines set forth a number of recommendations for healthcare organizations to consider implementing to prevent workplace violence, including:

  • Create a Written Zero-Tolerance Workplace Violence Prevention Program
  • Conduct Employee Training
  • Screen Patients for Potential Violence
  • Ensure Security Personnel are Available and Trained
  • Implement System to Flag Patient’s History of Violence

The new Guidelines are not so different in substance from the prior guidelines.  The publication generally follows the same outline and presents a similar set of recommendations to what was included in the 2004 publication.  Specifically, OSHA continues to emphasize the importance of developing a comprehensive written workplace violence prevention program.  The program elements recommended include the same elements listed in the 2004 guidelines (and virtually identical to the elements included in the original 1996 guidelines), which mimic the five basic components of an injury and illness prevention program:

  1. Management commitment and worker participation;
  2. Worksite analysis and hazard identification;
  3. Hazard prevention and control;
  4. Safety and health training; and
  5. Recordkeeping and program evaluation.

The biggest difference between the new version and the 2004 version is Continue reading →

A Healthy Dose of OSHA Enforcement Coming to the Healthcare Industry

Kate M. McMahon Leave a comment

By Eric J. Conn and Kathryn M. McMahon

On June 25, 2015, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Memorandum entitled: “Inspection Guidance for Inpatient Healthcare Settings.”  Health Initiative 1The 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 →

2015 OSHA Webinar Series – Archive of Recordings

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Webinar Series 1
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.

Continue reading →