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

January 19, 2023January 19, 2023Eric J. Conn Leave a comment

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 3^rd
- Retailers / Retail Pharmacies: Wednesday, January 4^th
- Manufacturers w/ Medical Clinics: Thursday, January 5^th

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 →

Inspections Begin Under OSHA’s Local Emphasis Program for Food Manufacturers in Illinois and Ohio

January 9, 2023Aaron Gelb Leave a comment

By Aaron R. Gelb and Ashley Mitchell

Inspections have commenced in Illinois and Ohio under the the Local Emphasis Program (LEP) focusing on food manufacturers OSHA announced in October 2022. This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V over the past two years dealing with exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022. General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well. A similar LEP targeting Wisconsin food manufacturers, with the primary difference being the NAICS Codes on which the two LEPs, began last Spring. To date, OSHA has opened 12 inspections, but citation data is not yet available for those inspections. Both LEPs mandate an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.

Why Is OSHA Targeting the Food Manufacturing Industry? Continue reading →

Conn Maciel Carey LLP Elevates Daniel Deacon to Partner

January 6, 2023January 6, 2023Theresa Green Leave a comment

Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Daniel Deacon has been elevated to Partner.

Mr. Deacon, based in the Washington, DC office, advises and represents employers on a wide range of employment-related issues, including handling wage and hour disputes, claims of discrimination, harassment and retaliation, compliance with the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), trade secret matters, as well as inspections, investigations and enforcement actions by OSHA, MSHA, and state OSH agencies.

Mr. Deacon joined the firm in 2015, one year after CMC was founded. “With the exception of a judicial clerkship for the 18th Judicial Circuit of Virginia, Dan has been with our team since he was a summer associate, so in a very real sense, he is one of the founders of this firm and has always been an important part of our success,” says Eric Conn, a co-founding partner and Chair of the firm’s national OSHA Practice. “It has been such a joy to watch Dan grow as an attorney into one of the rising stars of the OSHA defense bar.”

“I am so proud to have witnessed Dan advance from a Continue reading →

Happy Holidays and Happy New Year from Conn Maciel Carey!

December 23, 2022Theresa Green Leave a comment

From all of us here in the national OSHA Practice Group at Conn Maciel Carey, to all of you, happy holidays and happy New Year. We wish you a joyful and safe holiday season.

Please enjoy this holiday greeting from the CMC family to your family:

We have so much to be thankful for at Conn Maciel Carey, but most of all, we thank you all for continuing to turn to us for counsel and legal services. Please contact us if you have questions about any of the topics we have covered here on the OSHA Defense Report blog, or if you have ideas for other subjects we should be covering. And of course, contact any of us if there is ever anything our national OSHA Practice Group at Conn Maciel Carey can do to help you or your company with OSHA law issues.

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

December 22, 2022Theresa Green Leave a comment

On Tuesday, December 13, 2022, the attorneys in Conn Maciel Carey’s national OSHA Workplace Safety Practice Group presented a webinar in the 2022 OSHA Webinar Series regarding a Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Presented by:
Eric Conn, Micah Smith, and Beeta Lashkari
of Conn Maciel Carey’s OSHA Practice Group

And Special Guest Clyde Trombettas
(former head of Cal/OSHA’s PSM Unit)

Nearly two full years in, and the Biden Administration has been making its mark in the process safety arena, rolling back the rollbacks of the RMP Rule promulgated during the Obama Administration, and dusting off the PSM reform rulemaking that had begun at that same time. The CSB has also been changing the process safety landscape with new guidance about its Accidental Release Reporting Rule and other investigation activities.

We are also pleased to announce that we were joined by a special guest co-presenter, Mr. Clyde Trombettas. Mr. Trombettas recently-retired from Cal/OSHA as the Program Manager for Cal/OSHA’s Process Safety Management Unit. He provided an update regarding Cal/OSHA’s PSM team, enforcement trends, and other PSM regulatory developments.

This process safety regulatory update: Continue reading →

OSHA’s Heat Illness Rulemaking – Recent NACOSH Work Group Meeting

December 21, 2022December 21, 2022Eric J. Conn 1 Comment

By Beeta B. Lashkari and Eric J. Conn

With the winter holidays upon us, heat illness may not be front and center on your minds, but OSHA continues to be push full steam ahead on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings, so we wanted to provide you a quick update.

In September, OSHA had drafted but not yet released a summary document of all of the 1,078 comments the agency had received in response to the ANPRM. That summary document is now publicly available, posted on December 16, 2022 on the National Advisory Committee on Occupational Safety and Health (“NACOSH”) docket for its Heat Injury and Illness Prevention Work Group. Below are some highlights from the summary document.

Notably, our Coalition’s written comments were referenced 14 times in the summary document, including for the following propositions: Continue reading →

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

December 19, 2022Theresa Green Leave a comment

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!

December 16, 2022December 16, 2022Eric 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 20^th

Annual Cal/OSHA Update

Thursday, February 16^th

OSH State Plan Update

Thursday, August 10^th

Responding to Whistleblower Complaints

Tuesday, March 21^st

Powered Industrial Trucks

Thursday, September 14^th

Repeat, Willful, Egregious and SVEP

Thursday, April 13^th

Investigations and Audit Reports

Thursday, October 5^th

OSHA Rulemaking Update

Thursday, May 18^th

OSHA’s PSM Standard & EPA’s RMP Rule

Tuesday, November 14^th

Preparing for OSHA Inspections

Thursday, June 8^th

Combustible Dust

Thursday, December 7^th

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

December 12, 2022December 11, 2022Eric 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 22^nd, 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 27^th – May 2^nd, and then submitted two additional sets of post-hearing comments on May 23^rd. 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 8^th, 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 7^th. Here is a link to the page for this rulemaking and below is all the relevant information reflected on OMB’s website: Continue reading →

[Webinar] Process Safety Update: The Latest with OSHA PSM & EPA RMP

December 9, 2022Theresa Green Leave a comment

On Tuesday, December 13, 2022 at 1 p.m. EST, join us for a webinar in Conn Maciel Carey’s 2022 OSHA Webinar Series regarding a Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Presented by:
Eric Conn, Micah Smith, and Beeta Lashkari
of Conn Maciel Carey’s OSHA Practice Group

And Special Guest Clyde Trombettas
(former head of Cal/OSHA’s PSM Unit)

We are also pleased to announce that we will be joined by a special guest co-presenter, Mr. Clyde Trombettas. Mr. Trombettas recently-retired from Cal/OSHA as the Program Manager for Cal/OSHA’s Process Safety Management Unit. He will be providing an update regarding Cal/OSHA’s PSM team, enforcement trends, and other PSM regulatory developments.

This process safety regulatory update will: Continue reading →

Michigan OSHA Enforcement and Regulatory Update [Webinar Recording]

December 6, 2022Theresa Green Leave a comment

On Wednesday, November 30, 2022, Anthony Casaletta and Eric Conn presented a special bonus webinar in Conn Maciel Carey’s 2022 OSHA Webinar Series regarding a Michigan OSHA Enforcement and Regulatory Update.

Presented by
Anthony M. Casaletta and Eric J. Conn

We are pleased to announce that CMC’s newest addition, Tony Casaletta, a former Michigan OSHA (MIOSHA) Official who has just joined the firm as Of Counsel, led our very first MIOSHA update. Prior to joining the firm, Tony spent 18 years with MIOSHA in various roles, working his way up to Health Supervisor for the MIOSHA Construction Safety and Health Division. Through his tenure at MIOSHA, Tony specialized in industrial hygiene enforcement in both general industry and construction, managed the MIOSHA Asbestos Program, and oversaw the enforcement activities of MIOSHA’s Construction field industrial hygienists throughout the state of Michigan. In addition, Tony worked as an adjunct professor at Wayne State University where he taught in the University’s Industrial Hygiene graduate program.

Tony was joined by the firm’s OSHA Chair, Eric J. Conn, also a proud member of the Michigan Bar. The two OSHA-specialist attorneys provided an overview of MIOSHA’s enforcement program, the latest data and trends in MIOSHA enforcement, and other MIOSHA issues for employers to monitor.

During this webinar, participants learned about: Continue reading →

Cal/OSHA Advisory Committee Offers Updates on Enforcement, Rulemaking and More

December 1, 2022Megan Shaked Leave a comment

By Megan Shaked

The Cal/OSHA Advisory Committee holds meetings throughout the year to provide information regarding its programs and activities. At the most recent meeting, held on November 10, 2022, the public heard updates from DOSH, the Standards Board, and the Appeals Board.

Here are some highlights from the meeting. A full video and audio recording of the meeting is available here.

Cal/OSHA Chief Jeff Killip noted his goal to try to shift the Advisory Committee meetings to balance providing meaningful data with discussion for a collaborative approach to workplace safety and health. He also shared:

- Cal/OSHA is hiring to fill vacancies.
- Cal/OSHA’s heat/wildfire smoke campaigns included: 250 high heat targeted inspections this season; 299 consultations; 8 bi-weekly calls with Heat & Agriculture Coordination Program; an update to the Heat Special Emphasis Program to address Indoor Heat Hazards; an expansion of the DIR/DOSH Multimedia Heat Illness Prevention media campaign to include indoor heat; bilingual community engagement liaisons and bilingual trainers meeting with community based organizations, advocacy groups and others.
- California had 245 events around 2022 Safe & Sound Campaign in collaboration with Washington and Oregon (week of August 15-21)
- Cal/OSHA also participated in 2 agricultural worker events, a 4-day health symposium, and a 2-day conference for consultation.

Cal/OSHA Deputy Chief of Health and Research and Standards, Eric Berg, provided an update on the status of rulemaking: Continue reading →

[Bonus Webinar] Michigan OSHA Enforcement and Regulatory Update

November 29, 2022Theresa Green Leave a comment

On Wednesday, November 30, 2022, at 1 p.m. EST, join us for a special bonus webinar in Conn Maciel Carey’s 2022 OSHA Webinar Series regarding a Michigan OSHA Enforcement and Regulatory Update.

Presented by
Anthony M. Casaletta and Eric J. Conn

We are pleased to announce that CMC’s newest addition, Tony Casaletta, a former Michigan OSHA (MIOSHA) Official who has just joined the firm as Of Counsel, will be leading our very first MIOSHA update. Prior to joining the firm, Tony spent 18 years with MIOSHA in various roles, working his way up to Health Supervisor for the MIOSHA Construction Safety and Health Division. Through his tenure at MIOSHA, Tony specialized in industrial hygiene enforcement in both general industry and construction, managed the MIOSHA Asbestos Program, and oversaw the enforcement activities of MIOSHA’s Construction field industrial hygienists throughout the state of Michigan. In addition, Tony worked as an adjunct professor at Wayne State University where he taught in the University’s Industrial Hygiene graduate program.

Tony will be joined by the firm’s OSHA Chair, Eric J. Conn, also a proud member of the Michigan Bar. The two OSHA-specialist attorneys will provide an overview of MIOSHA’s enforcement program, the latest data and trends in MIOSHA enforcement, and other MIOSHA issues for employers to monitor.

During this webinar, participants will learn about: Continue reading →

Conn Maciel Carey Adds the Former Top Workplace Safety and Employment Attorney for North Carolina

November 2, 2022November 2, 2022Theresa Green Leave a comment

Conn Maciel Carey LLP, a Washington, D.C.-based boutique law firm with a national focus on OSHA/MSHA • Workplace Safety and Labor • Employment, is pleased to announce that Victoria Voight is now with the firm as an Of Counsel attorney in both the firm’s OSHA and Employment law practices.

Over four decades, Ms. Voight served the State of North Carolina in the Attorney General’s Office, ultimately as the Head of the Labor Section for eighteen years. In that role, Ms. Voight supervised all legal services provided to the North Carolina Department of Labor, principally in the areas of occupational safety and health (for North Carolina OSHA), wage and hour, retaliation, and employment discrimination. With that background, Ms. Voight brings to private practice a unique perspective, unparalleled experience, and key relationships with officials in North Carolina state government.

Ms. Voight is based in Raleigh, North Carolina, where she now provides the full range of workplace safety and health regulatory and employment law services for employers in North Carolina and around the country. She advises clients in relation to inspections, investigations and enforcement actions involving the Occupational Safety and Health Administration (OSHA) and State OSH Plans, particularly NCOSHA. She also counsels employers in all aspects of the employer-employee relationship, including wage and hour disputes and claims of employment discrimination and retaliation.

“From the other side of the table, I was always impressed with the attorneys at Conn Maciel Carey when they were advocating for employers in disputes with NCOSHA. They brought credibility, creativity, and a safety-focused approach to every case we had opposite each other, and that was so refreshing and effective for their clients.” said Ms. Voight. She added, Continue reading →

Biden Administration Signals that the Federal Contractor Vaccine Mandate May Go Into Effect, But Not Yet

October 25, 2022Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, October 14^th, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force (Task Force) issued some “clarifications” about the expected next steps for Executive Order 14042 – the federal contractor vaccine mandate – now that the longstanding nationwide injunction restricting enforcement of the E.O. has been narrowed by order of the Eleventh Circuit. That narrowing (to just the six States that were named parties to the legal challenge in Georgia v. Biden) took effect on October 18^th. OMB and the Task Force suggested that we would see at least three new guidance documents now that the injunction is narrowed, including:

1. OMB would give notice to federal agencies about compliance with applicable injunctions, and also whether, where and when the new clause implementing Executive Order 14042 should be included in new solicitations and contracts.
2. The Safer Federal Workforce Task Force would update its COVID-19 guidance for covered contractor workplaces, including a timeline for implementation. Last week’s clarification specified that this “updated guidance [by the Task Force] will be issued following development and review by the Task Force, subject to the OMB Director’s approval and determination published in the Federal Register that the updated guidance promotes economy and efficiency in Federal contracting, in accordance with Executive Order 14042.”
3. After the updated Task Force guidance issues, and if the OMB Director makes a determination that implementation of the E.O. in some form continues to promote economy and efficiency in federal contracting , then OMB would provide additional guidance to agencies on timing and considerations for provision of written notice from agencies to contractors regarding enforcement.

On October 19^th (the day after the 11^th Circuit’s narrowing of the nationwide injunction took effect), OMB did issue one of the notices we were expecting. Continue reading →

CMC Spotlight Series – Meet Trevor Thompson!

October 24, 2022May 4, 2023Theresa Green Leave a comment

In honor of National Paralegal Day this week, we are proud to feature one of our stellar paralegals for today’s CMC Spotlight Series — Trevor Thompson! Trevor is a Cal/OSHA Paralegal in Conn Maciel Carey’s San Francisco office. He has more than a decade of experience in the legal field and supports the attorneys in the OSHA • Workplace Safety Group as well as the Labor • Employment, and Litigation groups.

Trevor is particularly skilled in the organization and analysis of legal documentation. Prior to joining the firm, he was a Legal Document Specialist providing legal, trial and administrative support for several national law firms.

Get to Know Trevor!

Continue reading →

Governor Newsom to End COVID-19 State of Emergency, While Standards Board Marches On

October 18, 2022November 6, 2022Megan Shaked Leave a comment

In major news yesterday, Governor Newsom announced that California’s COVID-19 State of Emergency will end on February 28, 2023. See the following excerpts from the governor’s press release:

“With hospitalizations and deaths dramatically reduced due to the state’s vaccination and public health efforts, California has the tools needed to continue fighting COVID-19 when the State of Emergency terminates at the end of February, including vaccines and boosters, testing, treatments and other mitigation measures like masking and indoor ventilation. As the State of Emergency is phased out, the SMARTER Plan continues to guide California’s strategy to best protect people from COVID-19.”
“Throughout the pandemic, we’ve been guided by the science and data – moving quickly and strategically to save lives. The State of Emergency was an effective and necessary tool that we utilized to protect our state, and we wouldn’t have gotten to this point without it,” said Governor Newsom. “With the operational preparedness that we’ve built up and the measures that we’ll continue to employ moving forward, California is ready to phase out this tool.”
“To maintain California’s COVID-19 laboratory testing and therapeutics treatment capacity, the Newsom Administration will be seeking two statutory changes immediately upon the Legislature’s return: 1) The continued ability of nurses to dispense COVID-19 therapeutics; and 2) The continued ability of laboratory workers to solely process COVID-19 tests.”

In contrast to Governor Newsom’s announcement, however, the Cal/OSHA Standards Board continues to advance a proposed non-emergency COVID-19 rule, with a two-year fixed term extending well beyond the end of the State of Emergency. Just last Friday, the Standards Board issued a revised draft of the non-emergency rule providing a 15-day notice period for comments. The revised non-emergency rule provides the following substantive changes: Continue reading →

Preventing and Responding to Workplace Violence [Webinar Recording]

October 14, 2022Theresa 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

October 10, 2022October 10, 2022Theresa 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.

Conn Maciel Carey LLP Expands Midwest Workplace Safety Practice With Addition of OSHA Defense Attorney Anthony Casaletta – a Former Michigan OSHA Official

September 29, 2022September 29, 2022Theresa Green 2 Comments

Detroit, MI (September 29, 2022) – Conn Maciel Carey LLP, a Washington, D.C.-based boutique law firm with a national focus on OSHA/MSHA • Workplace Safety and Labor & Employment, is pleased to announce that Anthony Casaletta has become an Of Counsel attorney with the firm.

Mr. Casaletta, an OSHA defense attorney, is based in the Detroit area in Michigan, where he counsels and defends employers in a wide range of workplace health and safety matters conducted by Federal OSHA and State OSH Plans, including particularly, the Michigan Occupational Safety and Health Administration (“MIOSHA”). He also supports employers in all aspects of OSHA and MIOSHA enforcement, from managing on-site inspections and investigations, to litigating contested citations through ALJ hearings and appeals, and counseling on compliance with OSHA rules and standards.

“I am thrilled to have this opportunity to join Conn Maciel Carey’s deep bench of talented attorneys,” said Mr. Casaletta. “I was drawn to the firm by their stellar reputation as go-to legal advisors for OSHA workplace safety matters. I look forward to collaborating with the team on industrial hygiene, safety, and all manner of OSHA regulatory matters.”

Prior to entering private practice as an OSHA defense attorney, Mr. Casaletta spent 18 years with Michigan OSHA (“MIOSHA”) in various roles, Continue reading →

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

September 27, 2022September 27, 2022Beeta B. Lashkari Leave a comment

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 →

OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules [Webinar Recording]

September 20, 2022Theresa Green Leave a comment

On September 13, 2022, Lindsay A. DiSalvo and Ashley D. Mitchell presented a webinar regarding Important Nuances of OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules.

Although OSHA’s injury and illness recordkeeping and reporting rules may seem clear on their face, there are many nuances in the applicable standards that can create challenges to accurately making and maintaining those required records and reports. And the accuracy of injury and illness records could be becoming even more essential in light of the changes OSHA has proposed to the current e-recordkeeping rule, which would increase the availability and use of injury and illness data.

Already, e-recordkeeping data is collected by OSHA and used in developing and executing its Site-Specific Targeting (“SST”) Program based on an employer’s 300A Summary. Per the changes proposed in the current rulemaking effort, OSHA intends to expand who is required to submit recordkeeping data, what data is collected, and what data is shared with the public. This would result in more employers’ injury and illness data being under the microscope and incorporated into OSHA’s enforcement efforts. Indeed, as COVID-19 recordkeeping continues to drive up DART rates for a number of employers due to the need for COVID-19 positive employees to isolate, more may be pulled in OSHA’s SST Program. Thus, it is important for employers to understand the changes possibly to come in e-recordkeeping, as well as what those changes could mean in the context of evaluating and recording/reporting injuries and illnesses.

Participants in this webinar learned about: Continue reading →

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

September 19, 2022September 19, 2022Beeta B. Lashkari Leave a comment

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

September 16, 2022Megan Shaked Leave a comment

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 →

OSHA Updates Its Severe Violator Enforcement Program to Sweep In Exponentially More Employers

September 16, 2022October 1, 2022Eric J. Conn 3 Comments

By Eric J. Conn and Ashley D. Mitchell

On September 15, 2022, OSHA announced a significant set of updates to its dreaded Severe Violator Enforcement Program (“SVEP”), the first update to the program in over a decade. In a Press Release accompanying the update, Doug Parker, the Assistant Secretary of Labor for OSHA, explained:

The Severe Violator Enforcement Program empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards . . . . Today’s expanded criteria reflect the Biden-Harris administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.

Two of the three SVEP-qualifying criteria have not changed, and they are:

Fatality/Catastrophe Criterion – A fatality/catastrophe inspection where OSHA finds at least one willful or repeated violation or issues a failure-to-abate notice based on a serious violation directly related either to an employee death or three or more employee hospitalizations.
Egregious Criterion – All egregious enforcement actions (i.e., per-instance citations).

But historically, the principal way that employers “qualified” into SVEP was by enforcement actions that included 2+ willful or repeat violations related to a particular set of standards that represented “high emphasis hazards.” Indeed, that criteria has accounted for more than 70% of all SVEP-qualifying citations. Those “high emphasis hazards” essentially reflected the subjects of OSHA’s active enforcement National Emphasis Programs, including: