The saga around Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) has taken several bizarre twists and turns. After hurriedly adopting the ETS over Thanksgiving weekend 2020, Cal/OSHA set about this spring to fix some problems with the initial ETS regulatory text. The agency proposed a revised version of the ETS to be considered by the Cal/OSHA Standards Board in late May 2021, but on the eve of that Standards Board meeting, Cal/OSHA pulled it back, purportedly to address the CDC’s updated guidance about masks and distancing for vaccinated workers. Inexplicably, however, Cal/OSHA produced an updated proposed amended ETS that was more onerous, not less.
On June 3, 2021, the Cal/OSHA Standards Board convened a special meeting to consider the revisions to the ETS. The public meeting was long and contentious, with 100+ stakeholders testifying lasting late into the evening. Initially, the Board voted to Continue reading →
Before launching his own OSHA Practice, Eric practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission. Eric then became Head of an OSHA practice at a large employment law firm that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in 2014.
Mr. Conn is a popular speaker on OSHA topics, including as the director of Conn Maciel Carey’s annual OSHA Webinar Series, and he regularly keynotes trade group and industry conferences. He is also the curator of the firm’s award-winning OSHA Blog, the OSHA Defense Report, and he is often quoted as a leader in the field in trade publications.
Eric and his team of OSHA attorneys develop safety and health regulatory strategies for employers across all industries with a particular emphasis on:
Advising and representing employers through inspections, investigations and enforcement actions involving OSHA and other safety-related agencies
Managing the full range of litigation against OSHA
Representing employers during U.S. DOJ investigations and prosecutions of alleged OSH Act criminal violations
Developing and auditing safety programs and policies
Providing workplace safety training and compliance counseling for employers
During this interview, Eric shared an OSHA defense counsel’s insight about the highly anticipated Federal OSHA COVID-19 Emergency Temporary Standard, and tips for employers about managing OSHA inspections, including the most important steps to prepare for inspections, common mistakes employers make during inspections, and strategies to achieve successful outcomes at the end of inspections.
On February 25, 2021, Superior Court Judge Ethan Schulman officially ruled on two requests for preliminary injunctions against the implementation of Cal/OSHA’s COVID-19 emergency temporary standard (ETS), denying the injunctive relief sought in both cases.
Two separate legal challenges to the ETS were filed a couple of weeks after the rule was adopted by the Cal/OSHA Standards Board. The first was filed by the National Retail Federation and others, alleging generally that an emergency rule was not necessary and appropriate; i.e., the agency had not asserted facts adequate to establish the existence of an emergency, and therefore, the rushed rulemaking process that ignored stakeholder input was not lawful. It also alleged that Cal/OSHA overstepped its jurisdictional authority with respect to the ETS provisions mandating wage and benefits continuation.
The second legal challenge was filed by the Western Growers Association and other agricultural interests. This lawsuit similarly challenged the legality of an emergency rule in this context and the pay and benefits provisions. It also attacked the provisions regarding employer-provided housing and transportation.
In a 40-page order, Judge Schulman rejected all of the plaintiffs’ arguments, commenting, “No federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations and deaths that follow in its wake. This Court will not be the first. Lives are at stake.” Indeed, the cases faced long odds, with Judge Schulman Continue reading →
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.
As of January 15, 2021, civil penalties for workplace safety and health violations issued by federal OSHA will increase by about 1.2%. This increase reflects the annual inflation adjustment to civil monetary penalties initiated back in 2016. As in prior years, though the increase seems minimal, the impact of these annual increases in the aggregate is significant, as OSHA’s civil penalty authority has nearly doubled from what it was just 5 years ago.
How the Annual Penalty Adjustments Started
Over the past several years, we have seen civil monetary penalty increases of about 1%-2% each year, but this all started with a huge spike in permissible penalty amounts through a statute covertly passed during the Obama Administration. Specifically, in an effort to avert a government shutdown, outgoing Speaker of the House John Boehner and President Barack Obama made a backroom deal that ultimately took the form of the Bipartisan Budget Act of 2015. That measure included the “Federal Civil Penalties Inflation Adjustment Improvements Act” – a significant and controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor.
The Act mandated that essentially all executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties. As OSHA’s civil penalty authority had been stagnant for 25 years, the “catch-up” penalty increase was the most significant at OSHA. Per the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by nearly 80%.
In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, the Federal Civil Penalties Inflation Adjustment Improvements Act required that agencies make automatic annual updates thereafter (by January 15th each year) to civil penalties based on inflation. OSHA made its Continue reading →
On November 30, 2020, Cal/OSHA issued its COVID-19 Emergency Temporary Standard and it became effective immediately — all provisions. Cal/OSHA has signaled that there will be some early enforcement discretion, except for actions thought already to be required by the Injury Illness Prevention Plan regulation and other pre-existing regulations. But getting into compliance with this burdensome new rule should be a high priority.
The FAQs were announced by Cal/OSHA in a communication confirming that the agency would continue to issue guidance as needed, and continue to implement the formal Advisory Committee Process through which improvements and fixes to the rule may be adopted. Here’s an excerpt from the communication:
“There are now 69 FAQs with seven additional subheadings to help clarify and answer questions that we have received about the COVID-19 Prevention ETS …. We will continue to update the FAQs as needed in the future….”
Based on our review, we think these FAQs provide some important clarifications about the ETS, and in some instances, essentially rewrite the regulatory language (mostly in helpful ways). But it is also our view that the FAQs do not appear to be as flexible as the agency had signaled in some informal guidance (e.g., regarding how to determine the scope of an outbreak), and it does not address several important questions (e.g., what are employers options and obligations for employees who decline testing required by the rule). Here are some of the new FAQs Continue reading →
On January 7, 2021, President-elect Joe Biden announced his much-awaited choice for nominee to serve as Secretary of Labor, selecting Boston Mayor Marty Walsh. Mayor Walsh made his mark as a labor leader, ultimately heading the Building and Construction Trades Council from 2011 to 2013. Mr. Walsh was also a full-time legislator, serving in the Massachusetts state legislature for some 17 years before being elected mayor in 2014.
If confirmed, it is expected that Mayor Walsh’s close personal friendship with President-elect Biden will elevate the importance of the Labor Department in President Biden’s cabinet, allowing a Secretary Walsh significant influence in the Administration.
Mayor Walsh’s strong ties to organized labor and his selection follows through on President-elect Biden’s campaign promise to give unions a stronger voice in labor policy in his Administration. Mayor Walsh has a reputation as a “pragmatic deal maker,” and he is respected in Massachusetts by both business and labor for his reasonable approach to solving labor and employment issues facing the state.
Of the many issues likely to be tackled by the Labor Department over the next few years, one of the first and most impactful will be the likely issuance of a federal COVID-19 Emergency Temporary Standard by OSHA. President-elect Biden has pledged to have OSHA quickly address this issue. If a federal ETS is promulgated, it would replace the current Administration’s approach, which has relied heavily on CDC and agency guidance, as well as existing OSHA standards, like the respiratory protection standard and recordkeeping rules, to issue citations. With respect to COVID-19, under Mayor Walsh’s leadership, the City of Boston implemented a Continue reading →
As the Obama Administration turns out the lights and hands over the keys to the Trump team, OSHA’s enforcement and regulatory landscape is sure to change in significant ways, from shifting enforcement priorities, budgets and policies, to efforts to repeal or re-interpret controversial Obama Era regulations. As a Washington outsider, what OSHA will look like under Pres. Trump is a greater mystery than perhaps under any other incoming President in OSHA’s history. Accordingly, it is more important now than ever before to pay attention to OSHA developments.
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The Legal Backgrounder reviewed the history of OSH Act criminal cases and a new Department of Justice and Department of Labor joint initiative designed to increase the frequency of both criminal prosecutions for workplace safety violations generally, and to pursue more criminal charges against individual managers rather than just corporate defendants. The article explains:
“A key change in DOJ’s strategy for ‘upping the ante’ in workplace-safety criminal enforcement is the decision to transfer responsibility for prosecuting worker-safety violations from the Justice Department Criminal Division’s Fraud Section to the Environmental Crimes Section (ECS) of the Environment and Natural Resources Division.”
The article concluded that:
“the new Department of Justice worker-endangerment initiative will result in a renewed and more concerted effort to pursue criminal charges under environmental statutes where workers’ health and safety is allegedly being threatened. Based on this rekindled commitment by DOL and DOJ, employers should expect government officials investigating workplace-safety violations to probe for possible criminal violations—not only under the OSH Act where there has been a fatality, but under the myriad of environmental statutes and Title 18’s federal criminal code.”
Over the course of the next year, employers can expect to see longer, more comprehensive OSHA inspections that focus on complex safety and health hazards. This change is associated with OSHA’s new enforcement protocol it refers to as the “Enforcement Weighting System” that uses a new metric called the “Enforcement Unit.”
Historically, OSHA operated under the assumption that more inspections are better. OSHA’s philosophy was that the more workplaces that OSHA is able to inspected, the greater the impact OSHA would have on safety and health, and the more employees it would be able to protect. At the end of every year, the national office would produce data and graphs showing the number of inspections, and gave no consideration for the different types of inspections or the range of complexity of the issues faced in each inspection. It was the classic quota protocol with the classic weaknesses that quota cause – driving enforcement to the simplest, quickest hitting inspections available.
A traditional inspection at a small construction site can last as little as a couple of hours with only one compliance officer, whereas a wall-to-wall inspection at a petrochemical manufacturing plant could last days, if not months, requiring multiple compliance officers and specialists. Under OSHA’s historical tracking system, both of those types of inspections were counted as the same unit of measure – one inspection. To account for this wide variation in resources that inspections can consume, in personnel and man hours, OSHA has adopted the new Enforcement Weighting System.
The new tracking system kicked in at the start of the new federal fiscal year. OSHA piloted the system over the two previous fiscal years. At the core of the new Enforcement Weighting System is the introduction of a new unit of measure for inspections – the Enforcement Unit. Different types of inspections are assigned a different number of Enforcement Units. For example, the simple, small construction site inspection would be assigned a single Enforcement Unit, whereas the wall to wall chemical facility inspection would receive seven Enforcement Units.
Enforcement Units will be the new metric that OSHA’s national office evaluates at the end of the fiscal year and tracks from year-to-year to evaluate enforcement performance of its various regions and area offices.
As we enter the home stretch of the Obama Administration’s control of OSHA, we have seen OSHA increase enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, and from more criminal referrals to a heavy dose of public shaming.Accordingly, it is more important now than ever before to be prepared.
To register for any of the individual webinars in the series, click on the links below the program descriptions. To register for the entire 2016 series, please send an email to firstname.lastname@example.org, and we will assist. If you missed some of the programs in the 2015 OSHA Webinar Series, here’s a link to an archive of recordings of those webinars.
Every year, approximately 10% of workplace fatalities result from intentional violent acts. The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence. This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties. Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts. Beyond OSHA, workplace violence can also implicate other employment laws. For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA. Likewise, HR issues related background checks and negligent hiring could also contribute to civil liability.
Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices. This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so. It also provided employers with the knowledge and tools they need to Continue reading →
For as long as I have been practicing OSHA law (more than 15 years now), four things have remained constant:
The maximum per violation penalty that OSHA has been permitted by the OSH Act to assign to Serious violations has been $7,000, and for Repeat or Willful violations it has remained $70,000;
The Assistant Secretary of Labor for OSHA makes an annual pilgrimage to the Hill where he or she pounds on the table and demands that Congress enact OSHA reform legislation to increase the maximum penalties OSHA can assign (with common refrains like: “employers can be fined more for mistreating cattle on federal lands than for allowing an employee fatality!”);
There has been one iteration or another of such reform legislation (usually dubbed the “Protecting America’s Workers Act”) floating around Congress and stalling before it even gets out of Committee; and
OSHA proposes penalties on average at a level 50% below the maximum penalty level currently authorized.
Yet, here we are in 2015 with a Republican-controlled House and Senate, and through the backdoor comes a Congressionally-mandated increase to maximum OSHA civil penalties of nearly 80%. A bizarre parting gift by now former Speaker of the House John Boehner, no doubt part of his effort to “clear the barn” for his successor. Color me shocked.
Here are the details. The much publicized two-year bipartisan budget agreement allowed the federal government to remain open and not default on the U.S. debt, but it also contained lesser known (or completely unknown) provisions, including one that allows for a nearly 80% increase in OSHA penalties in the next year, as well as indefinite periodic increases to match the rise of the cost of living in the future.
The Civil Penalties Adjustment section of the 2015 budget bill was hammered out between Speaker Boehner and the White House with apparently no input from House or Senate members. It provides for a one-time “Catch-up Adjustment” that must be implemented by no later than August 1, 2016. The catch-up adjustment is tied to the percentage rise in the Consumer Price Index (CPI) from the time OSHA last increased its civil penalties in 1990 through November 17, 2015. The actual percentage increase will not be known until next week, but based on recent CPI trends, the increase is expected to be approximately 80%.
Assuming a penalty inflation adjustment of approximately 80%, OSHA will be imminently increasing the maximum civil penalty for alleged Serious violations from $7,000 per violation to approximately $12,000, and for alleged willful or repeat violations from $70,000 per violation to approximately $120,000. After the initial catch-up increase, OSHA is also authorized by the law to Continue reading →
The OSHA Defense Report is a blog designed to bring you recent developments in workplace safety and health law, but not just to tell you that something has happened, but to talk about why you should care, and how it will affect you and your Company.
We started the OSHA Defense Report because we frequented several useful blogs dedicated to practical day-to-day workplace safety & health issues, but none that dive deep into workplace safety & health legal and regulatory issues. This blog is intended to fill that void.
The OSHA Defense Report will be the place to go to learn about the significance of new OSHA law developments, such as OSHA enforcement trends and initiatives, new interpretations and Review Commission decisions, and relevant OSHA policy and Rulemaking issues. We will offer practical advice with creative solutions with the goal to provide guidance to minimize exposure to costly liability. We hope you visit this site often and provide us with your feedback on what topics you are interested in.