Chambers USA Recognizes Conn Maciel Carey as 1 of Only 3 “Band 1” Ranked Law Firms for OSHA Law

June 2, 2022June 7, 2022Theresa Green 1 Comment

Conn Maciel Carey LLP (CMC) is honored to announce that the firm has been recognized as one of only three national law firms ranked in Band 1 Nationwide for Occupational Safety and Health (OSHA) Law. CMC is the only “boutique” firm among all of the law firms recognized.

The recognition comes from Chambers and Partners, an independent research company that delivers detailed rankings and insight into the world’s leading lawyers. This is the first year that Chambers has ranked the OSHA Law practice area.

Chambers’ researchers identified CMC as a “leading national boutique handling the full spectrum of labor and employment litigation with particular emphasis on workplace safety issues. The group…maintains a strong track record in complex OSHA inspections and enforcement matters.”

Among the client comments collected by Chambers about the firm, one stated that CMC’s OSHA Team “offers impressive expertise in federal- and state-level workplace safety laws, and has been especially active in recent months guiding clients through COVID-19 compliance…The firm is the real deal; it is a top OSHA firm.”

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OSHA VPP and Other Cooperative Programs [Webinar Recording]

August 31, 2021August 30, 2021Theresa Green Leave a comment

On August 24, 2021, Kate McMahon, Aaron Gelb, and Lindsay DiSalvo presented a webinar regarding OSHA VPP and Other Cooperative Programs.

Membership in OSHA’s Voluntary Protection Programs (VPP) has long been coveted by employers with exceptional safety programs. VPP recognizes employers that implement effective safety and health management systems and maintain injury and illness rates below national averages for their industries. To be accepted into the Program, employers must undergo a rigorous onsite evaluation by a team of safety and health professionals and are re-evaluated every three to five years on myriad metrics to remain in the Program. Importantly, VPP members are exempt from OSHA programmed inspections. However, VPP came under intense scrutiny from the Obama/Biden Administration because it was perceived as being too easy for employers to get into, too difficult to be removed, and provided too much of an enforcement shield. With a transition back to a Democratic Administration, that negative view of VPP may resurface, resulting in further chipping away at participation opportunities and the attendant benefits to employers in the program.

This webinar examined the basics of VPP, and discussed possible changes to participation and the impact on employers that are currently flying or wish to fly the VPP flag. Participants learned: Continue reading →

BREAKING – CSB Issues Final Accidental Release Reporting Rule

February 10, 2020February 10, 2020Beeta B. Lashkari 2 Comments

By Eric J. Conn and Beeta Lashkari

Last week, on the day of a federal district court-mandated deadline — Wednesday, February 5, 2020 — the Chemical Safety and Hazard Investigation Board (the CSB) announced its Final Rule on Accidental Release Reporting. The CSB posted a prepublication version of the Final Rule last week, on February 5th. The official version should be published in the Federal Register within the next few days.

As we previously reported, on December 12, 2019, the CSB issued a Notice of Proposed Rulemaking for its new reporting rule, which set out the circumstances when facility owners and operators are required to file reports with the CSB about certain accidental chemical releases and what must be communicated in the reports.

As stated in the NPRM, the purpose of the rule is “to ensure that the CSB receives rapid, accurate reports of any accidental release that meets established statutory criteria.”

The rule requires owners and operators of stationary sources to report accidental releases that result in a fatality, a serious injury, or substantial property damage to the CSB within eight hours. The specific information required to be provided in the accidental release report includes:

A brief description of the accidental release;
Whether the release resulted in a fire, explosion, death, serious injury, or property damage;
The number of fatalities and/or serious injuries, and the estimated property damage at or outside the stationary source;
The name of the material involved;
The amount of the release; and
Whether the accidental release resulted in an evacuation order impacting members of the general public and other details associated with the evacuation.

Issuance of the CSB’s reporting rule has been a long time coming. Although the CSB did not become operational until 1998, its enabling legislation – the Clean Air Act Amendments – was enacted in 1990. That statute, from nearly thirty years ago, expressly required the agency to issue a rule governing the reporting of accidental releases to the CSB. Although the CSB submitted an Advanced Notice of Proposed Rulemaking for Chemical Release Reporting in 2009, that effort died on the vine. Accordingly, the CSB has never had its own reporting rule, relying instead on other sources to receive incident information. In February 2019, however, Continue reading →

Everything You Need to Know About OSHA’s Health and Chemical Exposure Standards [Webinar Recording]

October 14, 2019November 23, 2019Kate M. McMahon Leave a comment

On October 22nd, Kate McMahon, Amanda Walker, and Beeta Lashkari of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding “Everything You Need to Know about OSHA’s Health and Chemical Exposure Standards.”

In addition to OSHA’s myriad Safety regulations, the agency has also promulgated approx. 30 comprehensive Health standards, and established air exposure limitations for an additional 500 common chemicals present in U.S. workplaces, such as asbestos, lead, and silica. Knowing when and how to conduct monitoring is complex, and the chemical sampling data collected can be a double-edged sword. This webinar helped employers understand and comply with the requirements of OSHA’s occupational health standards, provided useful guidance and tips on the types and frequency of air monitoring or other chemical sampling that may be required at your facilities, and the programs to implement if you do experience exposure levels above the minimum regulatory thresholds (or other industry consensus thresholds).

Specifically, participants in this webinar will learned about: 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:

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It’s a Bird. It’s a Plane. It’s… an OSHA Inspection Drone?

April 19, 2019April 19, 2019Kate M. McMahon 1 Comment

By Eric J. Conn and Kate McMahon

We have for several years now heard about our military’s and intelligence agencies’ use of unmanned drones to conduct secret surveillance of our geopolitical adversaries and terrorists across the globe. We may even take comfort in the use of these high-tech mobile video cameras hovering above a terrorist hide-out to foil a plot against our country. What may be less comforting to employers in the U.S., however, is that OSHA seems to have borrowed the playbook from our spy agencies to assist their inspectors in conducting inspections of U.S. workplaces.

OSHA’s Drone Policy Memo

On May 18, 2018, OSHA issued an internal policy memorandum to its field offices, announcing that it has begun using Unmanned Aircraft Systems, commonly referred to as drones, to assist with worksite enforcement inspections, as well as for technical assistance and training purposes. For now, OSHA’s new drone policy requires “express consent from the employer” before a drone is deployed in an inspection, but that limitation is simply a policy decision that can change with the political winds blowing in Washington, DC, or ignored by the agency without explanation as we recently saw with OSHA’s “Look Back” policy for issuing Repeat citations.

OSHA’s drone policy memorandum, entitled “OSHA’s Use of Unmanned Aircraft Systems in Inspections,” expressed that the purpose of drone inspections is to assist OSHA compliance officers gather information at worksites that may otherwise be difficult or dangerous to inspect from the ground. The drone memo sets forth Continue reading →

New OSHA Silica and Beryllium Standards: Update on OSHA Chemical Rulemaking [Webinar Recordkeeping]

April 11, 2018May 5, 2018Kate M. McMahon Leave a comment

On April 17, 2018, Kate McMahon and Nick Scala, of the national Workplace Safety Practice at Conn Maciel Carey, presented a webinar: “New Silica and Beryllium Standards: Update on OSHA Chemical Rulemaking.”

OSHA’s struggles to reform its chemical exposure limits continue with the rocky roll-out of its two newest occupational exposure standards – Silica and Beryllium. Both standards have faced legal challenges, but will survive in some form resulting in a full panoply of new obligations, including significant reductions in the allowable exposure levels to these chemicals, and a comprehensive set of ancillary requirements, such as housekeeping, hygiene, medical surveillance, recordkeeping, workplace signage, training, etc.

MSHA, even without its own Silica Standard on the books, has adopted some elements of the hierarchy of controls fundamental to OSHA chemical standards. MSHA also conducts exposure monitoring at least annually for respirable silica, and rigorously enforces silica exposure issues. “Me too” Silica and Beryllium standards for the mining industry may also be in the offing.

Participants in this webinar learned about: Continue reading →

Who is the New DOL Leadership Team Impacting OSHA Law? [Webinar Recording]

March 13, 2018April 11, 2018Kate M. McMahon Leave a comment

On March 20, 2018, Kate McMahon and Amanda Strainis-Walker, of the national OSHA Practice Group at Conn Maciel Carey, presented a webinar: “Who is the New DOL Leadership Team Impacting OSH Law?”

Pres. Obama’s Secretary of Labor, Assistant Secretary of Labor for OSHA, and the rest of his political Leadership Team at the Department of Labor turned over the keys to the Trump Administration. The Trump Administration has now installed, or at least announced, its own OSHA and OSHRC Leadership Team, and the backgrounds and regulatory philosophies between the outgoing and new decision makers and policymakers could not be more different.

During this webinar, participants learned about the new appointees who have taken (or should soon take) the reins at OSHA, and how this new Leadership Team will affect OSHA enforcement and rulemaking. We also reviewed other personnel changes at OSHA and OSHRC that will impact the regulatory landscape for employers.

Click here to register to view and listen to a recording of the webinar. Continue reading →

OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State” [Webinar Recording]

August 7, 2017September 3, 2017Eric J. Conn Leave a comment

On August 15, 2017, Kathryn M. McMahon, Amanda Strainis-Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding the OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State”

President Trump was carried to the White House on promises (or threats) of rolling back government regulations. At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed much of Trump’s agenda with the phrase, “deconstruction of the administrative state,” meaning the system of regulations and taxes that the president says have stymied economic growth. OSHA regulations are apparently at the heart of this deconstruction. Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape. This webinar will take a deep dive into the actions taken by the Trump Administration in conjunction with the Republican Congress to roll-back OSHA regulations or otherwise lessen the punitive influence of OSHA on our nation’s employers. From the repeal of several Obama-era midnight rules, to a budget proposal that could gut OSHA’s enforcement efforts, to a series of Executive Orders that shift to a business friendly regulatory agenda.

This webinar addressed:

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OSHA Interpretations and Variances: Regulatory Strategies Revived in a Trump Admin. [Webinar Recording]

May 30, 2017June 30, 2017Kate M. McMahon Leave a comment

On June 6, 2017, Eric J. Conn and Kate M. McMahon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA Interpretations and Variances: Regulatory Strategies Resurrected in a Trump Administration.“

A new world order has taken hold in Washington, DC, and with it, we expect OSHA to be much more open to employers’ views about the regulatory landscape. Employers may now have an opportunity to obtain favorable OSHA interpretations of existing regulations, and historically rare Variances.

This webinar reviewed the regulatory strategies that had been effectively foreclosed during the Obama Administration, but which may now reemerge, allowing employers to craft practical solutions to regulatory burdens while continuing to keep workers safe.

Participants in this webinar learned about the following:

The process OSHA follows to develop and issue letters of interpretation of its regulations and how to influence that process
Strategies for advanced groundwork to maximize the likelihood of favorable regulatory interpretations
How and when to apply for and obtain regulatory variances
How to insulate your company from legal exposure when engaging with OSHA about regulatory interpretations and variances

Here is a link to a recording of the webinar. Continue reading →

One of Obama OSHA’s Last Acts – An Update to the Walking-Working Surfaces Rule Decades In the Making

February 13, 2017February 13, 2017Eric J. Conn Leave a comment

Kate M. McMahon and Eric J. Conn

On January 17, 2017, OSHA’s new Walking-Working Surfaces Rule took effect, updating OSHA regulations that have been in place for nearly a half century. OSHA’s new rule, commonly referred to as the “Slips, Trips and Falls” rule, actually revises and updates two historic OSHA standards — the Walking-Working Surfaces regulations at Subpart D and the Personal Fall Protection regulations at Subpart I of OSHA’s General Industry Standards (29 C.F.R. Part 1910). Begun in 1990, it took OSHA all of 27-years – longer than it takes the Agency to promulgate its comprehensive health standards, which is saying quite a bit. But just shy of two months to the end of the Obama Administration, the rule was promulgated, and became effective and enforceable three days prior to the Inauguration of Pres. Donald Trump.

While the new rule may fall prey to to efforts by the Trump Administration to stay and roll back those rules promulgated in the 11^th hour by the Obama Administration — of which this certainly is one — it seems to have avoided the full scale assault by industry legal challenges typical of new OSHA rules. The period to file legal challenges to the rule ended two weeks ago, and a survey of court filings indicates that only two parties have filed challenges to the rule, and these challenges are narrowly focused on a few discreet provisions of the rule, relating to the 300-foot limit on the use of rope descents and the restrictions on chimney sweeps who climb carrying their hook ladders. Thus, even if these challenges are upheld, the bulk of OSHA’s revised Walking Working Surfaces rule will remain secure and in place.

Significant Provisions of the New Standard

It is not surprising that the new rule by and large escaped industry legal challenge. For the most part, it incorporates existing advances in technology and current national consensus standards and/or industry best practices already in place in a wide swath of impacted industries into the regulatory structure. Further, in particular in the area of personal fall protection, the new rule adds flexibility to the old requirements by expanding allowable methods for compliance. For instance, the new rule allows employers to rely on fall protection systems rather than relying exclusively on guardrails and physical barriers in many situations.

However, the new rule does impose some new requirements it is important to be aware of and understand. Continue reading →

OSHA’s Slips, Trips and Falls Rule Gets a Facelift [Webinar Recording]

February 6, 2017February 13, 2017Kate M. McMahon 2 Comments

On February 8, 2017, Kate M. McMahon and Micah Smith, from Conn Maciel Carey’s national OSHA Practice Group, delivered a webinar entitled: “OSHA’s Slips, Trips and Falls Rule Gets a Facelift.”

Only a few decades in the making, OSHA has finally updated its Walking / Working Surfaces Standard, the regulation that governs slips, trips and fall hazards in general industry. Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S. The new final rule attempts to modernize OSHA’s regulations to prevent fall hazards based on advances in fall protection technologies and methods.

Participants in this webinar learned:

The new requirements for managing slip, trip and fall hazards in general industry
New criteria for fall protection equipment and ladder safety
Effective dates for the new Walking / Working Surfaces Standard

Here is a link to a recording of the webinar.

This was the second webinar in Conn Maciel Carey’s 2017 OSHA Webinar Series. Plan to join us for the remaining complimentary monthly OSHA webinars. Continue reading →

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 →

OSHA Proposed Rule Attempts to Undo D.C. Circuit Recordkeeping Statute of Limitations Ruling

April 14, 2016April 14, 2016Eric J. Conn Leave a comment

By Eric J. Conn and Kate M. McMahon

Earlier this year, we wrote about a very significant rulemaking to amend OSHA’s injury and illness recordkeeping regulations to require employers to proactively submit their injury logs and reports to OSHA on a regular and frequent basis. We understand OSHA is committed to implementing that rule before the Obama Administration shuts out the lights and hands over the keys. The data submission recordkeeping rule is not, however, the only effort underway by OSHA to reform its recordkeeping regulations.

In what is certain to land OSHA back in court, OSHA plans to soon roll out a rule that attempts to end-run around the U.S. Court of Appeals for the D.C. Circuit’s decision that rejected the Agency’s historical doctrine that violations of OSHA injury and illness recordkeeping requirements continued each day an employer’s log remained incomplete or inaccurate, and declared instead that recordkeeping violations may only be cited within a strict six month statute of limitations. OSHA has attached the misleading name “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” to this rulemaking.

The driver behind OSHA’s proposed amendment to its injury and illness recordkeeping rule is not to clarify anything, but rather to attempt to undo the D.C. Circuit’s very clear 2012 decision in AKM LLC v. Secretary of Labor (aka the Volks Constructors case). In Volks Constructors, OSHA argued that every day the logs remain inaccurate, the employer commits a new violation, and extends the enforcement deadline. In other words, even though Congress set a six month statute of limitations for OSHA violations, OSHA believed the statute of limitations for injury and illness recordkeeping violations was five years plus six months due to the “continuing” nature of recordkeeping violations. Applying this expansive and flawed view of the statute of limitations historically gave OSHA wide latitude in recordkeeping enforcement. Continue reading →

OSHA Unveils Controversial Final Silica Rule and Industry Gears Up For Challenges

March 28, 2016March 31, 2016Kate M. McMahon Leave a comment

By Kate M. McMahon and Eric J. Conn

OSHA has issued its long-sought – and heavily disputed – new regulation aimed at reducing worker exposures to crystalline silica dust, cutting the Permissible Exposure Limit (PEL) in half for general industry, construction and maritime activities.

Office of Management and Budget (OMB) officials on March 21, 2016 cleared the rule, essentially green lighting OSHA to move forward. With this regulation long represented as a top priority for OSHA, Assistant Secretary of Labor David Michaels took no time doing so, issuing the final rule only days after the White House gatekeeper OMB cleared it back to OSHA. Dr. Michaels said in the press release accompanying the rule that the existing limits on Silica dust are “outdated,” and added that limiting exposure to silica dust is essential.

“Every year, many exposed workers not only lose their ability to work, but also to breathe. Today, we are taking action to bring worker protections into the 21st century in ways that are feasible and economical for employers to implement.”

The soon-to-be-published final rule – effective 90 days from its imminent publication in the Federal Register – cuts the exposure limit on respirable crystalline silica in half for general industry, construction and maritime, making the new PEL 50 micrograms per cubic meter (50 µg/m³) of air, on a time-weighted average of exposure across the work day. The PEL, which is the core provision of the rule, was controversial enough considering the little return Industry sees from the reduction, as compared to the economic and technical difficulties involved. However, the new regulation also includes an “action level,” set at 25 µg/m³, which automatically triggers numerous ancillary requirements ranging from exposure controls to medical surveillance. OSHA justifies this action level because many workplace health experts believe that Continue reading →

Welcome to the OSHA Defense Report Blog!

September 15, 2015September 16, 2015Eric J. Conn Leave a comment

The national OSHA – Workplace Safety Practice Group at Conn Maciel Carey is proud to launch The OSHA Defense Report!

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.

Enjoy!