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.
On August 21, 2018, Eric J. Conn and Aaron R. Gelb of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “OSHA’s Policies of Public Shaming: the Status under the Trump Admin. and the Future.“
As a small budget agency, OSHA has long looked for policies that will leverage individual enforcement actions to have the greatest impact on Industry. That is the origin of OSHA’s controversial policy of “Regulation by Shaming.” During the Obama Administration, employer shaming became a significant enforcement tool and came in many forms, from increasing use of enforcement press releases that included embarrassing and inflammatory quotations about employers, to maintaining a public bad actors list in connection with the Severe Violator Enforcement Program, and the pièce de résistance – publishing a Rule by which OSHA will collect and publish employers’ injury and illness data and details about fatalities.
The Trump Administration has signaled it will take a different approach to public shaming, but at the very least, the vestiges of these policies still remain, and some Administration actions suggest they are here to stay.
During this webinar, participants learned about:
Musculoskeletal disorders (MSDs) are the single most common type of work-related injury, but federal OSHA has struggled for decades to develop a coherent regulatory and/or enforcement strategy to address the hazards that cause these ergonomic injuries. Where federal OSHA fell short, the State of California has picked up the slack, with Cal-OSHA recently finalizing a safety standard regarding Housekeeping Musculoskeletal Injury Prevention. The standard, which will go into effect this summer applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public, and requires operators to develop, implement and maintain a written Musculoskeletal Injury Prevention Program tailored to hazards associated with housekeeping.
Background About Ergonomics
An ergonomic hazard is a physical factor within the work environment that has the potential to cause a musculoskeletal disorder (MSD). MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system; i.e., muscles, tendons, ligaments, nerves, discs, blood vessels, etc. Common ergonomic hazards include repetitive movement, manual handling, workplace design, uncomfortable workstation height, and awkward body positioning. The most frequent ergonomic injuries (or musculoskeletal disorders) include muscle/tendon strains, sprains, and back pains, Carpal Tunnel Syndrome, Tendonitis, Degenerative Disc Disease, Ruptured / Herniated Disc, etc., caused by performing the same motion over and over again (such as vacuuming), overexertion of physical force (lifting heavy objects), or working while in an awkward position (twisting your body to reach up or down to perform a work task).
MSDs are the single most common type of work related injury. According to Bureau of Labor Statistics data, MSDs alone account for nearly 30% of all worker’s compensation costs. OSHA estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses (approx. 34% of all lost workdays reported to the BLS), and employers spend as much as $20 billion a year on direct costs for MSD-related injuries and up 5x that on indirect costs (e.g., lost productivity, hiring and training replacement workers, etc.).
Federal OSHA’s Ergonomics Enforcement Policy
Nevertheless, federal OSHA has been lost in the woods for years searching for a coherent ergonomics enforcement policy. In the final days of the Clinton Administration in November 2000, federal OSHA promulgated an extremely controversial midnight Ergonomics Standard, requiring employers to take measures to curb ergonomic injuries in the workplace. Continue reading
Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.
“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner. “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law. We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”
Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship. Aaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.
“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice. “We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”
Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country. In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.
Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond. I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field. At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries. While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”
Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.
Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”
Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability. Continue reading