By Eric J. Conn and Beeta B. Lashkari
For the better part of 2023, OSHA has been working through the Small Business Regulatory Enforcement Fairness Act (SBREFA) phase of its rulemaking to produce an Outdoor and Indoor Heat Illness Prevention Standard.
The SBREFA process is conducted by a Small Business Advocacy Review (SBAR) Panel composed of representatives from OSHA, the Office of Information and Regulatory Affairs (OIRA) within the White House’s Office of Management and Budget (OMB), and the Office of Advocacy (Advocacy) of the Small Business Administration (SBA). The SBAR Panel’s primary role is to collect input from Small Entity Representatives (SERs) and report and on the comments of SERs and the Panel’s findings as to issues related to small entity impacts and significant alternatives that accomplish the agency’s objectives while minimizing the impact on small entities. After the SBAR Panel meetings conclude, the panel writes and issues a report, which is delivered to the Head of OSHA for consideration. The report typically includes the panel’s findings and recommendations, as well as the list of SERs, the SERs’ written comments, results of any polling questions asked during the meetings, and the documents provided to the SERs.
SBAR Panel Reports contain recommendations for OSHA on the Panel’s analysis and on possible approaches to regulatory action that may minimize impacts on small entities. Of course, while focused on small entities, the report has significant implications for industry as a whole.
The SBREFA process for OSHA’s Outdoor and Indoor Heat Illness Prevention rulemaking is nearing its conclusion. The SBAR Panel convened numerous meetings SERs, received significant written comments from those SERs, and last week issued its SBAR Panel Report, formally transmitting it to Doug Parker, Assistant Secretary of Labor for OSHA on November 3, 2023. The 332-page report is linked here and on OSHA’s Heat Injury and Illness SBREFA webpage (see the red banner at the top of the page). Continue reading
By Eric Conn, Kate McMahon, and Beeta Lashkari
On Friday, May 19, 2023, OSHA presented at the Small Business Administration’s (“SBA”) Small Business Labor Safety (OSHA/MSHA) Roundtable about OSHA’s Heat Illness Rulemaking. At the meeting, OSHA reported about the status of the rulemaking, including the heat working group’s (as led by sub-group two) recommendations regarding potential elements of a standard, as we describe below (see “NACOSH Heat Working Group Meeting” section below). OSHA also gave an update on its work regarding changes to its compliance materials, which are in line with the heat working group’s (as led by sub-group one) recommendations made to the full NACOSH committee, and then from the full NACOSH committee to OSHA, earlier this year.
Importantly, just as we predicted, during the SBA roundtable meeting, OSHA stated that it is working diligently to pull together materials to initiate the SBREFA process as soon as possible, and when asked about the timing of issuance of the final standard, specifically, whether that will not happen until 10-12 months at the earliest, OSHA stated that the SBREFA process will be happening very soon, and that the heat injury and illness prevention rulemaking is a high priority for this Administration.
As we mentioned previously, we have officially moved into what we are calling Phase 2 of the rulemaking, which covers all advocacy and information-sharing from today (the start of the SBREFA process) through issuance of a Notice of Proposed Rulemaking (“NPRM”). Here are some of the benefits Continue reading
On Thursday, February 23, 2023, the attorneys in CMC’s Cal/OSHA Practice Group presented a webinar regarding an Annual Cal/OSHA Enforcement & Regulatory Update.
Cal/OSHA and the California legislature have continued to focus their efforts on extending workplace mandates associated with COVID-19, heat illness and wildfire smoke. This update will cover the transition from Cal/OSHA’s COVID-19 Emergency Temporary Standard to the Non-Emergency COVID-19 Rule as well as other workplace safety mandates that have been recently adopted or are under consideration.
Participants in this webinar learned: Continue reading
By Eric J. Conn and Beeta B. Lashkari
As we mentioned in our last update from December, OSHA continues to move swiftly on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings. We attended the National Advisory Committee on Occupational Safety and Health (“NACOSH”) committee meeting on January 10th, where the Committee primarily addressed recommendations and updates from NACOSH’s Heat Injury and Illness Prevention Work Group (“Work Group”), and wanted to provide you this update.
As a reminder, the NACOSH Work Group was split into two sub-groups – one addressing Task 1 of the Charge to the Work Group (evaluating and providing input and recommendations for compliance assistance materials about heat illness prevention), and the other sub-group addressing Task 2 (developing key recommendations on potential elements of a Heat Injury and Illness Prevention Standard for OSHA to consider). As expected, only the sub-group addressing Task 1 (“Compliance Assistance Work Group”) delivered its recommendations to the full NACOSH committee during the January 10th meeting. The sub-group addressing Task 2 (“Rulemaking Work Group”) – which is the sub-group more important to our Coalition – reiterated that it is still in the process of developing recommendations, to which OSHA responded with some strong words. More on that below.
To start, the Compliance Assistance Work Group presented its findings and recommendations to the full NACOSH Committee, which the Committee approved unanimously without changes. Four of the ten recommendations aim to improve OSHA’s guidance on heat dangers, urging the agency to: Continue reading
By Beeta B. Lashkari and Eric J. Conn
With the winter holidays upon us, heat illness may not be front and center on your minds, but OSHA continues to be push full steam ahead on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings, so we wanted to provide you a quick update.
In September, OSHA had drafted but not yet released a summary document of all of the 1,078 comments the agency had received in response to the ANPRM. That summary document is now publicly available, posted on December 16, 2022 on the National Advisory Committee on Occupational Safety and Health (“NACOSH”) docket for its Heat Injury and Illness Prevention Work Group. Below are some highlights from the summary document.
Notably, our Coalition’s written comments were referenced 14 times in the summary document, including for the following propositions: Continue reading
By Eric J. Conn and Beeta B. Lashkari
OSHA’s rulemaking for an outdoor and indoor heat illness prevention rule continues to chug along, so we wanted to provide a quick review of the latest developments. Of particular note, two meetings of the National Advisory Committee on Occupational Safety & Health (NACOSH) focused on heat illness and the heat illness rulemaking were held on June 30th. Conn Maciel Carey’s Employers Heat Illness Prevention Coalition participated in both.
Here is a copy of the as-filed comments we submitted to OSHA in advance of these NACOSH meetings, reiterating our previously submitted comments, and requesting to speak at the June 30th NACOSH meeting (which request was granted).
The meetings were well attended by NACOSH committee members and OSHA staff, and included appearances from Andy Levinson (Acting Director, OSHA Directorate of Standards and Guidance), Lisa Long (Acting Deputy Director, OSHA Directorate of Standards and Guidance), Carla Marcellus (Office of Maritime and Agriculture), and Jennifer Levin (Committee Counsel, Office of the Solicitor). Kate McMahon and Beeta Lashkari attended on behalf of our Coalition. The first meeting was for public listening only, and Kate was one of only two public stakeholders who spoke at the second meeting, and the only employers’ representative to do so.
Here are the key takeaways from the two meetings, as well as a summary of the public statements we made to the NACOSH committee: Continue reading
By Beeta B. Lashkari and Eric J. Conn
On Tuesday, May 3, 2022, OSHA held a virtual stakeholder meeting to discuss and receive public input about OSHA’s various initiatives designed to protect workers from heat-related hazards. Below is a summary of the stakeholder meeting, as well as the comments we presented on behalf of our Employers Heat Illness Prevention Coalition. If you would like to view the entire meeting, or view the agenda or some of the heat illness-related materials OSHA made available, they are available on OSHA’s Heat Forum Public Stakeholder Meeting website.
The meeting ran for approx. 6 hours (from noon to 6 PM). More than 3,000 stakeholders signed up for the meeting, and more than 500 people requested to speak, including OSHA representatives, an OSHA leadership panel, and four batches of public comment. Public commenters were each allotted a strictly enforced 3-minute window to speak.
Opening Remarks from Heads of DOL/OSHA
The Assistant Secretary of Labor for OSHA, Doug Parker, kicked off the meeting with opening remarks. Mr. Parker began by explaining that heat-related hazards do not Continue reading
ANNOUNCING CONN MACIEL CAREY’S
2022 OSHA WEBINAR SERIES
A full year into the Biden Administration, the senior leadership team at federal OSHA is set, the agency’s new regulatory agenda has been revealed, and the enforcement landscape has begun to take shape, revealing a dramatic shift in priorities, including stronger enforcement, higher budgets and more robust policies protecting workers, and a renewed focus on new rulemaking. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, relied almost exclusively on the General Duty Clause to enforce COVID-19 safety measures, drastically curtailed rulemaking, and declined to issue an emergency COVID-19 standard, the pendulum swing at OSHA has already been more pronounced than during past transitions. Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.
Conn Maciel Carey LLP’s complimentary 2022 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA during this period of unpredictability and significant change.
To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2022 series, click here to send us an email request so we can get you registered. If you missed any of our programs over the past seven years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings. If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.
By Eric J. Conn, Chair of Conn Maciel Carey LLP’s National OSHA Practice
While we and employers across the nation have been focused on OSHA’s issuance of its second COVID-19 emergency temporary standard in six months, earlier this month, OSHA published in the Federal Register an Advanced Notice of Proposed Rulemaking initiating a new formal rulemaking focused on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” (the ANPRM). The ANPRM provided this summary of OSHA’s action:
“OSHA is initiating rulemaking to protect indoor and outdoor workers from hazardous heat and is interested in obtaining additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. This ANPRM provides an overview of the problem of heat stress in the workplace and of measures that have been taken to prevent it. This ANPRM also seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required.”
And while everyone still has most of our focus on OSHA’s Vaccination, Testing, and Face Coverings emergency temporary standard, it is critical that those industries and employers potentially impacted by an OSHA heat illness regulation focus on this important active agency rulemaking. In fact, long after COVID-19 is a just bad memory in the rearview mirror, a heat illness standard will have lasting and potentially enormous impacts on your organization.
To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to participate in OSHA’s Indoor and Outdoor Heat Illness Rulemaking with a goal of helping to shape any heat standard that OSHA ultimately promulgates in such a way that the rule is palatable to Industry. Continue reading
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
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, such 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
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