Virginia OSHA Modifies and Makes Permanent Its COVID-19 Regulation — Effective Jan. 27, 2021

January 26, 2021June 11, 2021Eric J. Conn 1 Comment

On July 15, 2020, Virginia OSHA became the first State OSH agency in the nation to promulgate an Emergency Temporary Standard regulating COVID-19 in workplaces. Last week, in a 9-4 vote, the Virginia Safety and Health Codes Board went a step further and finalized a “Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19,” making Virginia the first state in the country to issue a permanent rule regulating COVID-19 in the workplace. The regulation has now been approved by Virginia Governor Ralph Northam (January 26, 2021) without change, and was published in a paper of public record (the Richmond Times-Dispatch) on January 27, 2021, so VOSH’s permanent infectious disease rule is officially in effect.

As we previously detailed, in its emergency rule form, the COVID-19 regulation required Virginia employers to:

Develop and implement written COVID-19 infection control plans that include:
- mandating social distancing measures
- requiring face coverings for employees in customer-facing positions and wherever social distancing cannot be assured
- providing frequent access to hand washing or hand sanitizing
- regularly cleaning high-contact surfaces.
- adopting robust sanitation procedures
- ensuring appropriate air handling systems
- implementing policies and procedures for isolating and removing known COVID-19 or suspected COVID-19 employees from the workplace, and for when it is safe for them to return to work (using either a symptom-based or test-based strategy depending on local healthcare and testing circumstances)
- requiring all employees to be notified within 24 hours if a coworker tests positive for COVID-19
- requiring notification to VOSH within 24 hours of the discovery of three or more employees testing positive within a 14-day period.

Provide COVID-19 related training
Provide employment protection for employees who wear their own PPE or who raise a reasonable concern about infection control.

The ETS also provided some flexibility based on evolving CDC guidance – stating that employers would avoid a citation where the employer complied with CDC guidelines to mitigate COVID-19, so long as the CDC recommended practice provides equal or greater protection than the requirement in the ETS. The emergency standard was set to expire January 26, 2021, which is why VOSH moved so quickly to issue this permanent regulation.

The final Permanent Infectious Disease Rule Continue reading →

REMINDER: Feb. 1st Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work-Related Injuries: 5 Common Mistakes Employers Make

January 25, 2021January 24, 2021Eric J. Conn Leave a comment

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1^st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses. The requirement applies toall U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of very low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

By February 1^st every year, covered employers must:

Review their OSHA 300 Log(s);
Verify the entries on the 300 Logs are complete and accurate;
Correct any deficiencies identified on the 300 Logs;
Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following five mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading →

REMINDER: February 1, 2020 Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work-Related Injuries: 5 Common Mistakes Employers Make

January 28, 2020January 24, 2021Eric J. Conn Leave a comment

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1^st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS codes are in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904). The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Note that February 1st falls on a Saturday this year, but that does not affect the deadline to post. So, if there will be noone present at your workplace to make the posting on that Saturday, be sure to get your 300A posted by Friday, January 31st.

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s Electronic Recordkeeping Rule. The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes. The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2019) is March 2, 2020. Click here for more information about OSHA’s E-Recordkeeping Rule.

By February 1^st every year, covered employers must:

Review their OSHA 300 Log(s);
Verify the entries on the 300 Logs are complete and accurate;
Correct any deficiencies identified on the 300 Logs;
Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses, and input those calculations into the 300A Annual Summary Form; and
Have a “Company Executive” certify the accuracy of the 300 Log and the 300A Summary Form.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following five mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading →

OSHA Issues Additional Respirator Fit Testing Protocols to Provide More Flexibility for Employers

November 12, 2019December 2, 2019Daniel C. Deacon Leave a comment

By Dan Deacon and Eric J. Conn

On September 26, 2019, OSHA issued a new Final Rule providing employers with new options for fit testing protocols to comply with OSHA respiratory protection requirements designed to protect workers from airborne contaminants. More specifically, the new Rule, entitled “Additional Ambient Aerosol CNC Quantitative Fit Testing Protocols: Respiratory Protection Standard,” establish two additional methodologies for respiratory fit testing:

a modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators; and
a modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators.

The rule became effective September 26, 2019.

Both new protocols are abbreviated variations of the original OSHA-approved ambient aerosol CNC quantitative fit testing protocol (often referred to as the PortaCount protocol), and differ from the test by the exercise sets, exercise duration, and sampling sequence. The protocols serve as alternatives to the four existing quantitative fit testing protocols already listed in the Mandatory Appendix A of OSHA’s Respiratory Protection Standard:

generated aerosol;
ambient aerosol condensation nuclei counter (CNC);
controlled negative pressure (CNP); and
controlled negative pressure REDON.

The intent of the Rule is to Continue reading →

OSHA’s Electrical Safety Standards: 5 Reasons to Get it Right and 10 Common Mistakes [Webinar Recording]

September 12, 2019October 11, 2019Eric J. Conn Leave a comment

On September 24, 2019, Micah Smith, Aaron Gelb, and Dan Deacon of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding “OSHA’s Electrical Safety Standards: 5 Reasons to Get it Right and 10 Common Employer Mistakes.”

Electrical safety has long been an enforcement priority for OSHA. OSHA’s electrical standards are designed to protect employees against hazards of electric shock, electrocution, flash fires, and explosions. Often, workers and/or their employers are unaware of the potential electrical hazards present in their work environment, and even more often, they are unfamiliar with the nuances of OSHA’s regulatory requirements in this area.This webinar will highlight the top 5 reasons it is critical for employers to get compliance with OSHA’s electrical safety standards right, explain the 10 most misunderstood and misapplied provisions of the applicable OSHA standards, and discuss strategies to limit exposure to the most common electrical safety violations.

Specifically, participants in this webinar learned: Continue reading →

Fate of Midnight Obama-era OSHA Rules [Webinar Recording]

June 7, 2019June 28, 2019Eric J. Conn Leave a comment

On June 18, 2019, Kate McMahon, Micah Smith, Dan Deacon, and Beeta Lashkari of Conn Maciel Carey‘s national OSHA Practice presented a webinar regarding the “Fate of Various Obama-era OSHA Rules.”

In the final days (and even hours) of the Obama Administration, OSHA promulgated several significant regulatory changes. For example, after several decades, it updated the Walking Working Surfaces Standard (the regulation covering slips, trips and falls). It also published a controversial Electronic Injury Data Submission Rule, two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals. To name a few.

But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”? While many agency regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promise for deregulation, others have remained untouched. This webinar will review the status of these OSHA Rules and where they may be headed.

Participants in this webinar learned about:

Continue reading →

OSHA’s New Site-Specific Targeting Enforcement Program [Webinar Recording]

March 11, 2019March 25, 2019Amanda Strainis-Walker Leave a comment

On March 19, 2019 Amanda Walker, Aaron Gelb and Dan Deacon of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “OSHA’s New Site-Specific Targeting Enforcement Program.“

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.

Participants in this webinar learned: Continue reading →

2019 Update on OSHA’s E-Recordkeeping and Significant Injury Reporting Rules [Webinar Recording]

January 31, 2019March 11, 2019Eric J. Conn Leave a comment

On February 12, 2019 Lindsay DiSalvo and Dan Deacon from Conn Maciel Carey LLP’s national OSHA Practice presented a webinar regarding: “Updates About OSHA’s E-Recordkeeping and Significant Injury Reporting Rules.“

OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, in January 2019, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.

Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015. Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA. In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.

During this webinar, participants learned: Continue reading →

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

December 18, 2018December 18, 2018Megan Shaked Leave a comment

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, it 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 →

Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule [Webinar Recording]

September 4, 2018October 4, 2018Daniel C. Deacon Leave a comment

On September 18, 2018, Micah Smith and Dan Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar: “Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule.”

Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers. In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule. The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.

Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.

Participants in this webinar learned:

Continue reading →

The Due Date for Round 2 of Injury Data Submissions under OSHA’s E-Recordkeeping Rule is Upon Us

June 28, 2018June 28, 2018Daniel C. Deacon Leave a comment

The July 1, 2018 deadline for large employers (250+ employees at a single work site) and smaller employers (20-249 employees) in certain so-called “high hazard industries” to submit injury and illness data to OSHA is less than a week away. We have been tracking closely the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, it appears that this deadline for the second data submission under the rule is going to stand.

Therefore, if employers have not already done so, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application (the portal that will receive the injury data), and submit covered injury data (i.e., their 2017 OSHA 300A Annual Summary data) by this Sunday.

For a last-minute primer on the nuances of OSHA’s E-Recordkeeping Rule, check out this blog article from Intelex, a compliance software development resource. Here is the opening excerpt from the article:

“Mandatory submission of injury and illness data to OSHA through a dedicated Web-based portal should, in theory, make the process quick and easy. However, a recent spate of real and proposed changes to the agency’s E-Recordkeeping Rule has left many employers wondering if they are required to submit injury and illness data for certain establishments, by when they must do it, and what the consequences are of not submitting the data.

The latest in Conn Maciel Carey LLP’s OSHA webinar series addressed these topics and provided some much-needed clarity for employers.”

Continue reading →

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

May 17, 2018June 29, 2018Eric J. Conn 1 Comment

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 →

Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

May 7, 2018May 29, 2018Eric J. Conn Leave a comment

On May 15, 2018, Amanda Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “The Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule.“

OSHA’s controversial Electronic Recordkeeping and Anti-Retaliation Rule was promulgated in May 2016. Despite a barrage of negative comments during the rulemaking, multiple enforcement deferrals, and two legal challenges that have been stayed pending the Trump Administration’s re-evaluation of the Rule, all elements of the rule are currently in effect. Indeed, last December, hundreds of thousands of workplaces, for the first time, submitted their injury and illness recordkeeping data to OSHA through its Injury Tracking Application (ITA) web portal.

The Trump Administration is ready to announce its future plans for the E-Recordkeeping Rule, signaling that it will publish a Notice of Proposed Rulemaking to revise (or potentially rescind) the Rule later this month. However, the extent of the revisions to the rule remain unknown, and the timing is key as we approach July 1, 2018, the deadline for the second round of injury data submissions.

Participants in this webinar learned about: Continue reading →

OSHA’s “Look Back” Window to Issue Repeat Citations is Unlimited

March 23, 2018March 23, 2018Daniel C. Deacon Leave a comment

By Eric J. Conn and Dan C. Deacon

The U.S. Court of Appeals for the Second Circuit recently issued an opinion granting OSHA the ultimate leeway to characterize citations as Repeat. The case involved a Repeat excavation-related OSHA citation issued to Triumph Construction Corp. in 2014. OSHA based the Repeat characterization on a prior violation of the same excavation standard confirmed against Triumph from 2009.

Triumph asserted to the OSHRC Administrative Law Judge and to the U.S. Court of Appeals for the Second Circuit that the Repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation (nearly five years) was outside OSHA’s stated Repeat look-back policy in its Field Operations Manual. The OSHA Field Operations Manual in effect in 2014 was the 2009 version, which provided for a three year look-back period to find prior violations to serve as the basis for a Repeat violation.

In a 2016 update to the Fields Operations Manual, the Obama Administration expanded the Repeat look-back period to five-years. Regardless what the FOM said, the Triumph case implicated broader issues of whether OSHA’s policy created an strict statute of limitations for the Repeat look-back and whether OSHA has the authority, on a whim, to change enforcement policies like the Repeat look-back period without rulemaking or legislation.

The ALJ upheld the Repeat citation, and on appeal, the Second Circuit in Triumph Construction Corp. v. Sec. of Labor (Docket No. 16‐4128‐ag, March 14, 2018), held that because neither the OSH Act nor any regulations promulgated under the Act mandate or restrict any look-back time period for Repeat violations, OSHA was not bound by its own stated policy. OSHA has the discretion, in other words, to search an employer’s citation history as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a present “repeat” violation. Continue reading →

Status of OSHA’s Electronic Recordkeeping Rule – 1st Deadline (Dec. 15) to Submit Injury Data is Upon Us

November 20, 2017December 21, 2017Eric J. Conn Leave a comment

By Eric J. Conn and Dan C. Deacon

The December 15, 2017 deadline for large employers and small employers in certain “high hazard industries” to submit injury and illness data to OSHA is less than a month away. We have been tracking closely the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, or even possibly to be rescinded, it appears that the initial data submission deadline of December 15th is going to stand.

Background about the Electronic Recordkeeping Rule

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employers’ Injury and Illness Recordkeeping Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months each year, used the data themselves to make decisions about how to reduce risks of injuries and illnesses in their workplaces, and then stored the records in a cabinet or desk drawer for five years. Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.

Key Changes in OSHA’s New Recordkeeping Rule:

Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries. In this first year of the rule, however, for 2016 injury data to be submitted in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.
The submissions to OSHA must be made electronically, via a purportedly secure web portal.
OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible. It is unclear whether the Trump Administration will publish the data, but the records may nonetheless be subject to Freedom of Information Act requests by plaintiffs’ attorneys, the media, union organizers, and competitors, to use the data in a variety of ways to harm employers.

Deadline to Submit Data – A Moving Target

The deadline to submit data has been a moving topic and source of uncertainty since the Trump Administration took the reins at OSHA. Continue reading →

OSHA Indefinitely Delays E-Recordkeeping Data Submission Requirements

May 25, 2017May 26, 2017Daniel C. Deacon Leave a comment

By Eric J. Conn and Dan C. Deacon

In the final year of the Obama Administration, OSHA published a controversial amendment to its Injury and Illness Recordkeeping Rule known as the “Improve Tracking of Workplace Injuries and Illnesses” Rule. As published last year, the new Final Rule significantly changed employers’ obligations under OSHA’s recordkeeping scheme. Among other hotly contested provisions, the new rule would require employers, beginning July 1, 2017, to proactively submit their employee injury and illness recordkeeping data to OSHA, so that OSHA could publish the data for all the world to see.

In a dramatic, but not unexpected, move last week, OSHA suspended this controversial data submission requirement with no word on when – or whether – a new deadline would be set for the data submission.

Telltale signs that the new Administration was rethinking the data collection requirement, and especially the plan to publish data, were clear well before last week. OSHA stated at the time the rule was published in May 2016 that it would develop a secure portal into which employers would submit the data, and that the portal would be live by February 2017, well in advance of the July 1^st data submission deadline. We understand the development of the database was completed, and learned that OSHA beta-tested the portal with the help of a few major national employers and employer organizations.

Nevertheless, Winter and Spring came and went with no public sign of the secure data portal, or update from OSHA about how precisely the database would function or when it would go live. Since we are so close to the July 1^st submission deadline and still no database with which employers could begin to get familiar, it was not surprising that on May 17^th, OSHA updated its website to officially announce a reprieve from the looming July 1^st deadline, stating:

OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.

Our expectation is that the new Administration will Continue reading →

Get the Record Straight: Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

May 16, 2017May 26, 2017Amanda Strainis-Walker Leave a comment

On May 16, 2017, Amanda R. Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar regarding “OSHA’s E-Recordkeeping and Anti-Retaliation Rule.” Here is a link to a recording of the webinar.

OSHA’s controversial new Electronic Injury and Illness Recordkeeping data submission rule, along with its new Anti-Retaliation elements has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals, and a legal challenge complete with a preliminary injunction motions, and continuing legal challenges. As of today, all elements of the rule are in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before July 1, 2017, thousands of employers will, for the first time, be required to submit injury and illness recordkeeping data to OSHA, possibly for publishing online.

Participants in this complimentary webinar learned about:

Requirements of OSHA’s Electronic Injury Recordkeeping data submission
The status of OSHA’s new database to receive injury data
OSHA’s policy on publishing the injury data received from employers
The Anti-Retaliation Elements of the E-Recordkeeping Rule
The status and future of this new Final Rule
The fate of “Volks” Recordkeeping Statute of Limitations Rule

This was the fifth webinar event in Conn Maciel Carey’s 2017 OSHA Webinar Series. Plan to join us for the remaining complimentary monthly OSHA webinars. Click here for the full schedule and program descriptions for the 2017 series, and/or to register for the entire 2017 series, click here to send us an email request, and we will get you registered.

If you missed any of our prior webinars in the 2017 or past years’ OSHA Webinar Series, here is a link Conn Maciel Carey’s Webinar Archive.

OSHA Issues Guidance on Recordkeeping Anti-Retaliation Rule – Even with the Fate of the Rule in Question

November 28, 2016November 28, 2016Eric J. Conn Leave a comment

By Eric J. Conn and Dan C. Deacon

OSHA’s new electronic injury recordkeeping rule includes anti-retaliation provisions that create new employer obligations and prohibitions related to internal employee injury reporting procedures, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions. Particularly controversial is the impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonuses. Until very recently, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.

On October 19, 2016, OSHA issued a Guidance Memorandum offering its interpretation of the vague, controversial anti-retaliation provisions of OSHA’s new electronic injury and illness recordkeeping rule. The timing of OSHA’s issuance of the October Guidance is particularly noteworthy, given developments in the legal challenge filed by Industry plaintiffs in a federal district court in Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D), which we have described in previous articles. Specifically, just one week before issuing the Guidance Memo, OSHA deferred the enforcement effective date of the anti-retaliation provisions, for the second time, from November 1st to December 1st. This second delay of the anti-retaliation rule was done at the specific request of the Texas judge overseeing the case, who is considering industry’s request for a Preliminary Injunction.

The Guidance is not unexpected. Amidst growing frustration from Industry about the rule and its lack of clarity, OSHA promised last summer when it decided to first postpone the enforcement date from August 1, 2016 to November 1, 2016, to publish guidance explaining the new provisions. Indeed, OSHA’s defense against Industry’s motion for a preliminary injunction against the rule is that there is no way Industry can show irreparable harm from the new rule because there was no way for employers to know what the rule actually prohibits and requires.

Before this Guidance Memo was released, OSHA had provided little understanding of precisely what Continue reading →

OSHA’s Anti-Retaliation Recordkeeping Rule: Assault on Pizza Parties, Drug Tests and Exec Compensation

August 29, 2016September 6, 2016Eric J. Conn 2 Comments

By Eric J. Conn and Dan C. Deacon of Conn Maciel Carey PLLC

OSHA’s recent Injury and Illness Recordkeeping reform has created quite a stir for employers. As we discussed in an earlier article about the new Recordkeeping rule, OSHA now requires employers to electronically submit to OSHA their injury and illness recordkeeping data. OSHA will, in turn, publish the data online for all the world to dissect. It turns out, however, the electronic recordkeeping data submission elements of the new rule may not be the most problematic for employers.

The new Recordkeeping rule also increases employers’ obligations to implement “reasonable reporting” procedures for employees to report to their employers the work related injuries they incur, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions. To date, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.

Particularly controversial is the impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonuses. Although none of those words appear in the amended Recordkeeping regulation, OSHA addressed each in the Preamble to the Final Rule.

These topics have been on OSHA’s radar for nearly a decade, dating back to a 2008 Report issued by the House of Representative Committee on Education and Labor entitled “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses.” From that time, OSHA has been making efforts to address a perceived culture of underreporting injuries and retaliation against employees who do report workplace injuries and illnesses. OSHA has used every tool at its disposal to chip away at employer policies and practices that purportedly discriminate against employees who report injuries, or that attempt to deter employees from reporting injuries in the first place.

Even before this rulemaking, OSHA has taken action against policies that OSHA believes discourage reporting or recording of work related injuries. For example, Continue reading →

OSHA Civil and Criminal Penalties on the Rise – [Feed & Grain Magazine]

July 5, 2016July 4, 2016Eric J. Conn Leave a comment

The June/July 2016 issue of Feed & Grain Magazine featured an article by Eric J. Conn and Dan C. Deacon, of Conn Maciel Carey’s national OSHA Practice Group, regarding OSHA’s upcoming increase in maximum civil penalties and renewed focus on criminal investigations and prosecutions. The article discusses the impact of these two new OSHA enforcement issues on the grain industry in particular, but the background and lessons reviewed apply to virtually every employer in the United States.

Here is a link to the full article in Feed & Grain Magazine.

New GHS Hazard Communication Standard: Roll-out Issues [Webinar Recording]

May 5, 2016May 22, 2016Kate M. McMahon Leave a comment

On Wednesday, May 11, 2016, Kathryn M. McMahon and Dan C. Deacon of Conn Macial Carey’s national OSHA Practice Group presented a webinar regarding the final roll-out of OSHA’s new GHS Hazard Communication Standard as part of the Firm’s 2016 OSHA Webinar Series.

Perhaps the most significant safety related regulatory reform during the Obama Administration has been the amended Hazard Communication Standard, bringing OSHA’s chemical Right-to-Know regulation more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). The new GHS HazCom standard fundamentally changes how employers must classify chemicals in the workplace, and requires all new chemical labels and Safety Data Sheets (formerly MSDSs).

The new GHS HazCom Standard had a seemingly long roll-out period, but time has flown by, and many of the key deadlines under the new rule have already past, and the final deadlines are now upon us.

This webinar explained the new Hazard Communication standard, identified some of the key issues with the new HazCom rule that have surfaced during the roll-out, and explained what employers need to do to come into compliance. Participants learned about the following:

Background about OSHA’s new GHS Hazard Communication Standard
Important elements of the new rule that employers need to know
Key implementation deadlines and enforcement deferrals
Developing issues uncovered during the roll-out of the new rule
Best practices for coming into compliance with the new GHS HazCom Standard

Click here to view a recording of the webinar.

Continue reading →

Workplace Violence: Employer Liability in Virginia and Potential VOSH Penalties

April 5, 2016August 7, 2020Daniel 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, these incidents will nevertheless bring more attention to this issue, including by litigants and regulators.

Workplace violence can be categorized in three ways:

Violence by an employee;
Violence by a stranger; or
Violence by a known third party.

Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a regulatory investigation and enforcement action. In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of co-employees or third parties. However, even if an employer evades civil liability, employers may still be subject to an investigation by the Virginia Department of Labor and Industry, and incur significant civil penalties.

Given the potential for both a civil suit and a government investigation, employers should implement workplace policies and programs that help keep the workplace safe and free of workplace violence. This article details the potential legal liabilities and penalties employers may incur from workplace violence incidents, and provides guidance on how prevent such incidents or liabilities from occurring. Continue reading →