Five Important Updates About Federal OSHA and Cal/OSHA COVID-19 Recordkeeping

By Conn Maciel Carey’s COVID-19 Task Force

It has been a little while since we last shared an update about COVID-19 recordkeeping issues. Since Fed OSHA issued its COVID-19 recordkeeping guidance in May 2020 and Cal/OSHA issued its controversial COVID-19 Recordkeeping FAQs with unique, more onerous requirements in June, the agencies have been mostly quiet about COVID-19 recordkeeping. But that does not mean there have not been significant developments in that area or that there are no important developments to monitor closely.

Here are five notable OSHA and Cal/OSHA COVID-19 recordkeeping updates that we wanted to share with you:

1.  Congressional Intervention About Cal/OSHA’s COVID-19 Recordkeeping FAQs

As we explained last year, Cal/OSHA’s May 27th COVID-19 Recordkeeping FAQs departed from Fed OSHA’s COVID-19 recordkeeping requirements in two key ways: (i) rejecting Fed OSHA’s recordability precondition of a positive COVID test; and (ii) flipping the burden of establishing work-relatedness on its head, setting instead a presumption of Cal-OSHA RK FAQSwork-relatedness if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.

Aside from being bad policy that will result in many non-work related illnesses being recorded on California employers’ 300 Logs, Cal/OSHA is not legally permitted to deviate from Fed OSHA’s recordkeeping requirements.

The latest big development on that front was a helpful letter from the U.S. Department of Labor responding to an inquiry about this issue from a group of California Congressmen, in which DOL confirms that Cal/OSHA should be following the same recordkeeping requirements as Fed OSHA. Despite the clear statements in Cal/OSHA’s FAQs that a “confirmed case” is not required for recordkeeping and that work-relatedness should be presumed, the federal Department of Labor explained in its letter to the Congressmen: Continue reading

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

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

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 1 of 2 – Five Reasons to Get LOTO Right)

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article will lay out:

  • [Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
  • [Part 2]: Five common mistakes employers make when implementing the LOTO requirements.

Part 1: Why it is Critical for Employers to Get LOTO Right

The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.

Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized.  Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled.  The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.

OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.”  OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.

While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.

    1.  Amputation Injuries Create Special Reporting Obligations

Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA.  Continue reading

OSHA’s Fatality, Hospitalization & Amputation Reporting Rule: Lessons Learned [Webinar Recording]

On November 14, 2017, Eric J. Conn and Lindsay A. DiSalvo of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA’s Fatality, Hospitalization & Amputation Reporting Rule.

In former President Obama’s second term, his Administration rolled-out a major change to OSHA’s Fatality & Significant Injury Reporting Rule.  Not to be confused with the new Electronic Recordkeeping Rule (which requires certain employers to submit injury and illness data to OSHA on annual basis), this amended rule required all employers to make prompt phone calls to OSHA when work related fatalities or covered in-patient hospitalizations and amputations occur.

The rule has resulted in thousands more reports of incidents to OSHA than before.  Now, three years into the new reporting scheme, we have learned a lot of lessons about what is being reported to OSHA, what non-mandatory reports are often made, and what OSHA is doing with all the new reported incidents.

During this webinar, participants learned:

Continue reading