Update on Cal/OSHA’s Wildfire Smoke Rule

By Andrew Sommer and Fred Walter

In May of this year, Conn Maciel Carey’s OSHA Practice submitted comments to the Cal/OSH Standards Board on behalf of the Wildfire Smoke Rule Industry Coalition about the agency’s effort to make permanent what had been Emergency Temporary Standard to protect workers from the respiratory hazards of California wildfires.

Last month, the Cal/OSH Standards Board issued a 15-day Notice of Proposed Modifications to what would become the permanent wildfire smoke rule. The proposed changes are not major, mostly clarifying that one of the methods for determining the Air Quality Index for particulate matter 2.5 is the Interagency Wildland Fire Air Quality Response Program.

Another change to be expected in the final rule is a revision to the Appendix B training instructions to address cleaning and maintenance of reusable respirators, purportedly to address critical shortages of N95 respirators exacerbated by the COVID-19 pandemic. While anything that extends the supply of N95 masks is welcome, that change alone is not nearly enough to solve a massive compliance problem created by the rule. With the Wildfire Smoke Rule, DOSH requires workers exposed to wildfire smoke be supplied with N95 respirators, and it does not consider surgical masks to be acceptable substitutes. DOSH concedes that N95 respirators are generally not available to any but medical workers right now, but they have no recommended substitutes.

That was one of the primary points of emphasis in our coalition’s comments — the rule needed to include some flexibility around the requirement for employers to supply N95 respirator masks for all potentially affected workers. There were already problems with N95 shortages even before the COVID-19 pandemic, but now, the shortage is extreme, and with the CDC’s and OSHA’s recommendations that all supplies of N95s should be reserved for the healthcare industry obviously makes compliance with a a rigid N95 requirement for wildfire smoke protection impossible for most employers. Now in the midst of another wildfire season in California, employers are continuing to experience N95 shortages.

Continue reading

California Governor Issues COVID-19 Executive Order Extending Deadlines for Cal/OSHA Citations and Appeals

By Fred Walter and Andrew Sommer

With no fanfare, California Governor Gavin Newsom issued the latest in his series of COVID-19-related executive orders on May 7, 2020. Executive Order N-63-20 extends by 60 days the time for Cal/OSHA to issue citations and for employers to file appeals, motions and petitions for reconsideration.

As rationale for extending these statutory, jurisdictional deadlines, Governor Newsom explained:

WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have affected
governmental agencies, workers, private businesses, and California residents,
with associated impacts on adherence to certain statutory and regulatory
deadlines, as well as to workers’ efforts to vindicate their labor and employment
rights; and

WHEREAS the COVID-19 pandemic, as well as physical distancing and
other public health measures undertaken in response to it, have also had
widespread impacts on state and local governments’ ability to perform certain
functions via in-person interactions, and such functions should be performed via
other means to the extent consistent with public safety and other critical public
interests….

As to the Cal/OSHA related deadlines specifically, the Order states:

“The deadlines specified in or that apply to (Labor Code section 6317, related to the issuance of Cal/OSHA citations, and Labor Code sections 6319, 6600, 6600.5, 6601a and 6601.5) shall be extended for a period of 60 days to the limited extent that at the time to issue a citation or file a complaint, claim, or appeal would otherwise elapse in the 60-day period…” following the effective date of the Order, which was May 7, 2020.

A review of the cited Labor Code sections reveals that this Order extends Cal/OSHA’s time to issue citations and the employer’s time to file appeals, motions and petitions for reconsideration.

Labor Code section 6317 gives Cal/OSHA six months following the occurrence of a violation of a safety order to issue a citation or notice in lieu of citation. The remaining Labor Code sections cited in the Order put employers on notice that they must file an appeal within 15 working days of receipt of a citation or notice. If they do not, their right to do so would be lost.

As with most executive orders, this language is open to interpretation. Cal/OSHA Enforcement reads the Order to mean that Continue reading

Conn Maciel Carey Expands OSHA Practice by Addition of Legendary Cal/OSHA Specialist Attorney Fred Walter

Conn Maciel Carey is pleased to announce the addition to its national Workplace Safety Practice of renowned Cal/OSHA attorney Fred Walter.

Mr. Walter has spent more than 35 years working with employers to defend OSHA and Cal/OSHA citations, as well as developing and auditing safety programs to answer regulatory mandates. He also represents employers in defense of “serious and willful misconduct” claims and provides crisis management services.  For the past twelve years, Mr. Walter was the Managing Partner of a premier Cal/OSHA defense firm, Walter & Prince LLP.

Fred Walter Wix Headshot

“Fred is a true legend of the OSHA Bar.  The opportunity to align with him and enable our young lawyers, and really all of us, to benefit from his experience, knowledge, and mentorship, will help solidify Conn Maciel Carey as the premier workplace safety law firm in the country,” said Eric J. Conn, Chair of the firm’s Workplace Safety Practice Group.  “In addition to bringing decades of experience and knowledge, it is Fred’s creative approach and focus on consensus-building, rather than bridge-burning, that make him such a great fit with our team,” Eric added.

Mr. Walter’s diverse clientele includes employers in all of the construction trades, manufacturing, warehousing, freight handling, logging, farm labor contracting, food processing, and wineries.  In his over three decades of practice, Fred has acquired a wealth of knowledge of Cal/OSHA regulations and enforcement and developed unique relationships and established credibility with the players within Cal/OSHA and among its Counsel.

“It is clear from talking with Fred that he loves the work he does and cares about the people for and with whom he does it.  And he brings such a depth of experience with Cal/OSHA defense and counseling, as well as unique relationships with the players at Cal/OSHA, that will enhance the workplace safety legal services we provide to employers across all industries,” said Andrew J. Sommer, Managing Partner of the firm’s California practice.

Fred will be based out of the firm’s San Francisco office, and will Continue reading

Cal/OSHA’s Proposed Permanent Wildfire Smoke Rule – Coalition to Comment

By Andrew J. Sommer and Eric J. Conn

Last summer, at the urging of various interest groups, the Cal/OSH Standards Board adopted an emergency regulation regarding hazards associated with wildfire smoke. The regulation took effect on a temporary emergency basis on July 29, 2019.

Recently, the Board published a request for written comments and notice of a public hearing on its proposal to revise the emergency standard and make it permanent.  The Board explained:

Current regulations are not sufficiently specific as to what employers are required to do during wildfire events. This results in confusion on behalf of both employers and employees, leaving many employees unprotected….  As wildfire seasons worsen, the proposed regulation will avoid a potential increase in debilitating and sometimes life-threatening illnesses faced by workers exposed to wildfire smoke.

The deadline for written comments is May 21, 2020, and the public hearing will be held in Rancho Cordova, CA that same day.

The Emergency Standard

The emergency standard (which is still in effect) requires California employers to take steps to protect employees who may be exposed to wildfire smoke.  Importantly, the regulation covers “workplaces” rather than employers of a particular size or scope of service. It applies in workplaces where:

  • The current Air Quality Index (AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants, and
  • The employer should reasonably anticipate that employees may be exposed to wildfire smoke.

The regulation specifically exempts Continue reading

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

On April 16, 2020, Andrew SommerEric 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

Cal/OSHA Guidance Regarding COVID-19 in the Workplace

By Andrew Sommer, Megan Shaked, and Beeta Lashkari

Last week, Cal/OSHA updated its website, providing additional guidance on how to protect Californian employee from spread of COVID-19 in the workplace.  Additionally, earlier this week, Division Chief Doug Parker sent an unpublished letter, clarifying Cal/OSHA’s recording/reporting requirements for coronavirus-related illnesses.  Below is a summary of both pieces of guidance from Cal/OSHA:

Additional Cal/OSHA Guidance on COVID-19 in the Workplace

Starting with the new guidance on its website, Cal/OSHA provided additional information on how to protect workers from COVID-19.  While Cal/OSHA previously issued guidance on requirements under its Aerosol Transmissible Diseases (“ATD”) standard specific to COVID-19, as well as general guidelines, it has now released industry-specific guidance and ATD model plans.  The industry-specific guidance includes:

The ATD model plans are fillable pages provided in Word format and include an exposure control plan, laboratory biosafety plan, and “referring employer” model written program.

Picture1As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry on COVID-19.  These interim guidelines make clear that, for employers covered by the ATD standard, employers must protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols.  The ATD standard applies to:

  1. hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services;
  2. certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease;
  3. correctional facilities, homeless shelters, and drug treatment programs; and
  4. any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD standard.

Additionally, for employers NOT covered by the ATD standard, Cal/OSHA advises employers to Continue reading

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

On Thursday, April 16, 2020 at 1 PM Pacific / 4 PM Eastern, join Andrew Sommer, Eric J. Conn, and Megan Shaked of the law firm Conn Maciel Carey for 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 will learn about:

Continue reading

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

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

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes.  Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.

In reaching its decision, the Court Continue reading

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

On May 28, 2019, Andrew J. SommerEric 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

Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review [Webinar Recording]

On January 15, 2019, the Partners in Conn Maciel Carey’s national OSHA Practice presented a webinar on “The Top 5 OSHA Issues to Track in 2019, and OSHA’s 2018 In Review.” 

The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term.  This webinar reviewed OSHA enforcement, rulemaking, and other developments from 2018, and discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants learned: Continue reading

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

By Andrew Sommer, Megan Shaked, and Dan Deacon

As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).

When federal OSHA promulgated the Rule in 2016, E-Recordkeeping Ruleit built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication.  Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration.  As a result, numerous State OSH programs failed to initially adopt the rule.  After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.

Delinquent State Plans Began Adopting E-Recordkeeping

In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon.  While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (Wy OSHA); and
  • Vermont (VOSHA)

Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction.  Specifically, on April 30, 2018, federal OSHA issued a Continue reading

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

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

Delinquent State OSH Plans, Particularly Cal/OSHA, Catch-up with Fed OSHA’s E-Recordkeeping Rule

By Eric J. Conn and Dan C. Deacon

When fed OSHA promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by fed OSHA.  Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from fed OSHA under the new Trump Administration.

Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule.  Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018.  And that is when fed OSHA started to speak up.

OSHA’s April 30, 2018 Press Release

On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule.  In the press release, OSHA states that it had determined that:

Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

State Plan State Responses

The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive Continue reading

Conn Maciel Carey Adds Seasoned Employment Attorney Megan Stevens Shaked to Expand its California Practice

Conn Maciel Carey is pleased to announce that Megan Stevens Shaked has joined the firm as a senior associate in its San Francisco, CA office.  Ms. Shaked, an experienced employment litigator, will represent clients in a wide-range of employment-related litigation, and counsel clients in myriad legal issues that California employers face in the workplace.

“Megan brings a depth of experience with employment litigation, counseling and training that will enhance the employment law services we provide to employers across all industries,” said Andrew J. Sommer, head of the firm’s California practice.

She will also represent clients in connection with inspections, investigations and enforcement actions involving Cal/OSHA and other OSH-related matters on the West Coast.

“Megan is an ideal attorney to help grow our California practice in general, and our Cal/OSHA bench in particular,” said Eric J. Conn, a co-founder of the firm and Chair of the firm’s national OSHA Practice.  “California is a prominent base for our firm’s work, and Megan brings deep experience with the full range of employment issues that California employers face, including navigating the challenging waters of Cal/OSHA.”

Ms. Shaked has successful first-chair experience in employment law trials, and brings a creative approach to resolving tricky client issues.  Those qualities fit perfectly with the CMC model.  Ms. Shaked added that: Continue reading

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

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

Tug-of-War Between Fed OSHA and the State OSH Plans over the E-Recordkeeping Rule

By Eric J. Conn, Dan Deacon, and Beeta Lashkari

A fascinating jurisdictional tug-of-war has broken out between federal OSHA and a few fed OSHA approved State OSH Programs, in relation to OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule).  The E-Recordkeeping Rule requires large employers and smaller employees that operate in certain “high hazard industries” to proactively submit their electronic injury and illness data to OSHA through a special web portal – the Injury Tracking Application (“ITA”).

State Plan Adoption of OSHA’s E-Recordkeeping Rule

When fed OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because the State Plan states all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new fed OSHA rule.

Most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, ahead of the deadline to submit data the first year of the Rule, but as of the end of 2017, when employers’ 2016 300A data was due to be submitted, eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule.  Those states included:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

The delay by these States has primarily been a result of fed OSHA’s numerous announcements that it will soon issue a Notice of Proposed Rulemaking to amend (or rescind) the federal E-Recordkeeping Rule.  The State Plans have been reluctant to invest the time and resources to implement their own versions of the rule, only to watch fed OSHA change it, causing the states to have to change their own rules again very soon.

Of those eight states, only Vermont has since finalized its E-Recordkeeping Rule this year, and the other seven remain delinquent in their obligation to adopt the Rule.

Last year, fed OSHA and those eight state plans apparently recognized that only employers in fed OSHA states or State Plan states that had already adopted the E-Recordkeeping rule were required to submit their 300A data to OSHA.  This year, however, fed OSHA spoke up about the delinquent states. Continue reading

Cal/OSHA Compels Hospitality Employers to Clean Up Their Act, Ergonomically Speaking

By Aaron R. Gelb and Andrew J. Sommer

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 positioningThe 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

Announcing Conn Maciel Carey’s 2018 OSHA Webinar Series

The Trump Administration has taken the reins at OSHA, and the first year of the new OSHA’s enforcement and regulatory (or de-regulatory) agenda is in the books.  We have already seen significant changes in the way OSHA does business and the tools available to the Agency in its toolkit.  Now, as the new Administration finishes filling out the OSHA leadership team with its own appointees, we are sure to see shifting of enforcement priorities, budgets and policies, and an amplified effort to repeal or re-interpret controversial Obama-era OSHA rules and policies.  Accordingly, it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2018 OSHA Webinar Series, presented by the firm’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this period of flux.

To register for an individual webinar, click the link below the program description.  To register for the entire 2018 series, click here to send us an email request, and we will register you.  If you missed any programs from prior years, here is a link to an archive of recordings of those webinars.


OSHA’s 2017 in Review & 2018 Forecast

Tuesday, January 16th

New Cal/OSHA Enforcement Issues

Tuesday, July 10th

Unlock the Mysteries of OSHA’s Lockout/Tagout Standard

Tuesday, February 20th

Future of OSHA’s Policy
of Public Shaming

Tuesday, August 21st

OSHA’s New Leadership Team

Tuesday, March 20th

Walking/Working Surfaces Update

Tuesday, September 18th

OSHA’s New Silica & Beryllium Rules

Tuesday, April 17th

Repeat, Willful & Egregious CiTations

Tuesday, October 16th

OSHA’s New E-Recordkeeping
and Anti-Retaliation Rule

Tuesday, May 5th

 Process Safety Update:
OSHA PSM and EPA RMP

Tuesday, November 13th

Joint- and Multi-Employers,
Contractors and Temps

Tuesday, June 5th

OSHA and the ADA: How Two
Labor Laws Align and Diverge

Tuesday, December 4th

See below for descriptions of the webinars and registration links

Continue reading

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

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

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

Low Hanging Grapes – Cal/OSHA Standards Frequently Cited Against Winemakers

By Andrew J. Sommer and Lindsay A. DiSalvo

With the harvest upon us in California wine country, now is a great time to remind wineries and vineyards operating within the Golden Gate of those Cal/OSHA standards most often cited against this industry.  The California Division of Occupational Safety and Health (Cal/OSHA), which is charged with enforcing the state’s workplace safety standards, frequently cites wine industry businesses for failing to comply with several California-unique standards, cal-osha-wine-5such as the heat illness prevention rule and chemical right-to-know hazard communication requirements, as well as failing to comply with confined space and respiratory protection standards. We highlight these key Cal/OSHA standards and their impact on the wine industry.

Vineyards Vexed by Heat Illness Prevention Standard

California has adopted a Heat Illness Prevention Standard (§3395), which initially in 2005 was an emergency regulation. DOSH considers enforcement of the heat illness prevention standard to be a “special emphasis” and, as such, during every compliance inspection involving work sites that may be subject to this requirement, Cal/OSHA inspectors are expected to inquire about and evaluate employers’ Heat Illness Prevention Plan. This is an area of particular scrutiny in the wine industry, where vineyard employees frequently work outdoors, often in high heat conditions. Continue reading

5 Key Cal/OSHA Issues that California Employers Must Understand – [Webinar Recording]

On July 21, 2016, Andrew J. Sommer and Eric J. Conn, of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding important Cal/OSHA issues that all employers who do business in California 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 country.  Cal/OSHA faces many fewer bureaucratic and political obstacles than fed OSHA in developing new rules (really legislation).  Accordingly, California employers face a host of requirements that employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

Participants in last week’s webinar learned the following: Continue reading