National Emphasis Program

OSHA Launches Enforcement National Emphasis Program Targeting Warehouses, Distribution Centers and High-Risk Retailers

Eric J. Conn 2 Comments

By Eric J. Conn and Darius Rohani-Shukla of Conn Maciel Carey LLP’s National OSHA Practice

On July 13, 2023, OSHA announced a new enforcement National Emphasis Program focused on Warehousing and Distribution Center Operations.  The new NEP was signed-off by the Head of OSHA a month ago – on June 14, 2023 – so it became effective as of July 13, just as the public was first learning about it.  We have combed through the Directive for OSHA’s new Warehouses NEP and identified the following key information that warehouse operators and retailers need to know.

What motivated OSHA to Launch the Warehouses NEP?

Over the last ten years, warehousing and distribution centers have experienced tremendous growth, with the number of estimated employees in that industry nearly tripling from 2011 to 2021.  As part of that growth, the injury and illness rate in that space has also dramatically increased.  Specifically, OSHA’s perspective is that this NEP is warranted because of Bureau of Labor Statistics (BLS) data that shows that injury and illness rates for the establishments covered by the NEP are significantly higher than the overall industry average.  As a result, OSHA’s new Warehouses NEP is tailored to address the hazards in those workplaces that OSHA deems as posing the most safety and health hazards.

The Assistant Secretary of Labor for OSHA, Doug Parker, had this to say about the new Warehouses NEP:

“Our enforcement efforts are designed to do one thing: lead to permanent change in workplace safety.  This emphasis program allows OSHA to direct resources to establishments where evidence shows employers must be more intentional in addressing the root causes of worker injuries and align their business practices with the goal to ensure worker health and safety.”

What Employers are covered by this NEP?

This NEP targets warehouse-related industries as identified by seven NAICS codes, as well as a set of “high-injury retail establishments,” as identified by five NAICS codes.  Here are the specific warehouse industry segments covered by the NEP:

The so-called “high-injury rate retail establishments” are a subset of the retail industry with particularly high industry average DART rates; i.e., high rates of injuries and illnesses that cause days away from work, restricted duty, or job transfer.  They were included because OSHA believes they present the same or similar hazards as warehousing and distribution facilities, particularly in loading and storage areas.  Here are the specific retail industry segments covered by this NEP: Continue reading →

OSHA’s Heat Illness Rulemaking – NACOSH Meeting and Next Steps

Eric J. Conn 1 Comment

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 →

Inspections Begin Under OSHA’s Local Emphasis Program for Food Manufacturers in Illinois and Ohio

Aaron Gelb Leave a comment

By Aaron R. Gelb and Ashley Mitchell

Inspections have commenced in Illinois and Ohio under the the Local Emphasis Program (LEP) focusing on food manufacturers OSHA announced in October 2022.  This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V over the past two years dealing with exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022.  General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well.  A similar LEP targeting Wisconsin food manufacturers, with the primary difference being the NAICS Codes on which the two LEPs, began last Spring.  To date, OSHA has opened 12 inspections, but citation data is not yet available for those inspections.  Both LEPs mandate an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.

Why Is OSHA Targeting the Food Manufacturing Industry? Continue reading →

CDC Updates Its COVID-19 Guidance – But Still No Word From OSHA

Theresa Green Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Thankfully, it has been quite a while since there has been a material update to discuss on the COVID-19 front.  Except for those of you in the healthcare space, things continue to be pretty quiet at OSHA on that front, but as I am sure you all have seen, a week ago, on August 11th, the CDC updated some of its COVID-19 guidance in a way that probably affects many employers’ COVID-19 protocols. 

The CDC’s new guidance, entitled Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems, scales back prior onerous recommendations for COVID-19 prevention strategies based on an acknowledgement in the guidance document that:

“with so many tools available to use for reducing COVID-19 severity, there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.”

However, how the new guidance maps to workplaces is not a simple analysis.  As has been the case throughout the pandemic, trying to apply CDC’s guidance to general industry workplaces, when it is actually written for the general public or for specific sectors (most often public health agencies and healthcare) is not always intuitive, and often leads to conflicting and impossible outcomes.  Of course, that’s where OSHA is supposed to come in; i.e., to take CDC’s general guidance and explain for employers how it should apply in private industry workplaces.  But OSHA has not kept up with its duty in that regard.  Indeed, despite promises for more than five months that updated COVID-19 guidance was coming “soon,” OSHA has not chimed in about how it expects employers to map CDC’s general public guidance to the workplace since before the Delta variant struck.  So with that vacuum, here is our best take on the CDC’s updated guidance.

What Does CDC’s Updated COVID-19 Guidance Change?  Continue reading →

A Deep Dive Into Periodic Lockout/Tagout Inspections [Webinar Recording]

Theresa Green Leave a comment

On August 17, 2022, Aaron R. Gelb and special guest, Tabitha Thompson, presented a webinar regarding A Deep Dive Into Periodic Lockout/Tagout Inspections.

Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar took a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.

Participants in this webinar learned about: Continue reading →

Local Emphasis Program for Food Manufacturers in Wisconsin

Aaron Gelb Leave a comment

By Aaron R. Gelb and Darius Rohani-Shukla

Earlier this year, in April, OSHA launched a Local Emphasis Program (LEP) in Wisconsin focused on food manufacturers.  This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V last year focusing on exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022.  General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well.  Meanwhile, we have been told to expect a similar LEP targeting Illinois food manufacturers, with the primary difference being the NAICS Codes on which that LEP will focus.  While we have not yet seen the Illinois LEP targeting food processing establishments, we expect both programs will involve an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.

Why Is OSHA Targeting the Food Manufacturing Industry?

After examining data from the Bureau of Labor Statistics (BLS) for Wisconsin employers with a primary North American Industry Classification (NAICS) code in the 311xxx range, OSHA determined that food manufacturing industry injuries occurred at higher rates than found in other sectors. In OSHA’s view, the data demonstrates higher rates of total reportable cases; cases involving days away from work, job restriction or transfers, fractures, amputations, cuts, lacerations, punctures, heat burns, chemical burns, and corrosions. As such, OSHA’s stated goal in launching this LEP is to encourage employers to identify, reduce, and eliminate hazards associated with exposure to machine hazards during production activities and off-shift sanitation, service, and maintenance tasks.

Which Employers Will Be Targeted? Continue reading →

[Webinar] A Deep Dive Into Periodic Lockout/Tagout Inspections

Theresa Green Leave a comment

On Wednesday, August 17, 2022 at 1 p.m. EST, join Aaron R. Gelb and Beeta B. Lashkari for a webinar regarding A Deep Dive Into Periodic Lockout/Tagout Inspections.

Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar will take a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.

Participants in this webinar will learn about: Continue reading →

Regional Emphasis Program for Warehousing Operations

Aaron Gelb 1 Comment

On August 3, 2022, OSHA announced a new Regional Emphasis Program (“REP”) focused on warehousing and inside or outside storage and distribution yards in Pennsylvania, Delaware, Maryland, Virginia, West Virginia, and the District of Columbia, including those located at federal agencies, and federal installations in Region III’s jurisdiction.  Covered employers in these states would be well-advised to dust off their copy of Conn Maciel Carey LLP’s OSHA Inspection Toolkit and take the necessary steps to ensure they are ready for the inspections that will begin before the end of the year.

Why Is OSHA Targeting Warehousing Operations?

In the REP and accompanying press release, OSHA explains it is seeking to reduce injury/illness rates in the warehousing industry by conducting comprehensive inspections to address hazards that may include those associated with powered industrial trucks, lockout tagout, life safety, means of egress, and fire suppression.  OSHA further explains in the REP that while the rate of total recordable case rate for all private industry was 2.7 cases per 100 full-time workers, the rates for the industries included in this REP were 3.5 for beverage manufacturing; 4.8 for warehousing and storage; 4.0 for food and beverage stores; 4.3 for grocery wholesalers; and 5.5 for beer, wine, and alcoholic beverage wholesalers.

The REP calls out the potentially serious hazards involved in Continue reading →

OSHA Conducts Comprehensive Heat Illness Prevention Stakeholder Meeting

Eric J. Conn Leave a comment

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 →

OSHA Launches an Enforcement National Emphasis Program For Outdoor and Indoor Heat Illness Prevention

Beeta B. Lashkari 1 Comment

By Beeta Lashkari and Eric Conn

Last week, on April 12, 2022, OSHA announced that it has launched an enforcement National Emphasis Program (“NEP”) for Outdoor and Indoor Heat-Related Hazards.  The Heat Illness NEP applies to both indoor and outdoor workplaces, including general industry, construction, maritime, and agriculture.  The NEP is already in effect – as of April 8th – even before OSHA made its April 12th announcement, and will remain in effect for three years unless canceled or extended by a superseding directive.

Secretary of Labor Walsh, joined by Vice President Harris, announced this new enforcement program at a speech at the Sheet Metal Workers Local 19 Training Center in Philadelphia with these remarks:

“Tragically, the three-year average of workplace deaths caused by heat has doubled since the early 1990s. These extreme heat hazards aren’t limited to outdoor occupations, the seasons or geography. From farm workers in California to construction workers in Texas and warehouse workers in Pennsylvania, heat illness – exacerbated by our climate’s rising temperatures – presents a growing hazard for millions of workers….  This enforcement program is another step towards our goal of a federal heat standard. Through this work, we’re also empowering workers with knowledge of their rights, especially the right to speak up about their safety without fear of retaliation.”

Below is an analysis of the mechanics of OSHA’s Heat Illness NEP: Continue reading →

OSHA COVID-19 Regulation and Enforcement Post-Supreme Court [Webinar Recording]

Theresa Green Leave a comment

On Thursday, January 20, 2022 we hosted a special bonus event in Conn Maciel Carey’s 2022 OSHA Webinar Series in the form of a panel webinar program regarding OSHA COVID-19 Regulation and Enforcement After the Supreme Court Stayed the Vaccinate-or-Test ETS.

Presented by
Conn Maciel Carey LLP with Special Guests
Neal Katyal and Jordan Barab

In this exclusive, bonus program we facilitated a panel discussion regarding the Supreme Court’s recent decision to stay OSHA’s Vaccinate-or-Test emergency temporary standard, what that decision means for employers in fed OSHA and State OSH Plan states, and how OSHA will address the COVID-19 hazard in the workplace moving forward.

We would like to extend our gratitude to our remarkable cast of panelists for participating in this event:

  • Neal Katyal – former Acting Solicitor General of the United States and leading Constitutional Law expert; Partner at Hogan Lovells and Professor of Law at Georgetown University Law Center
  • Jordan Barab – President Obama’s Deputy Assistant Secretary of Labor for OSHA and Acting Head of OSHA; former Sr. Policy Advisor to the US House Education and Labor Committee
  • Moderated by Eric J. Conn, Chair, Conn Maciel Carey LLP’s national OSHA Practice Group

The Supreme Court has spoken, and OSHA’s Vaccination, Testing and Face Coverings Emergency Temporary Standard is once again subject to a nationwide judicial stay.  The conservative majority on the Court reasoned that the 50-year old OSH Act does not include an explicit-enough delegation of authority from the US Congress for OSHA to issue a regulation that addresses an issue that is not unique to the workplace and which is of such great economic and social significance. Shortly after the Supreme Court issued its decision, Secretary of Labor Marty Walsh announced that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

So, the big question facing employers now is what are the potential regulatory pitfalls from unwinding or stopping the implementation of any of their COVID-19 prevention and/or vaccination policies developed either in response to OSHA’s Vaccinate-or-Test ETS or more general efforts to keep up with CDC recommendations and/or protect against OSHA General Duty Clause citations?  Or said another way, without the COVID-19 emergency standards, what does OSHA expect from employers on the COVID-19 front to avoid enforcement?

Our panel of experts reviewed: Continue reading →

[Panel Webinar] OSHA COVID-19 Regulation and Enforcement Post-Supreme Court

Theresa Green Leave a comment

Block your calendars and make sure you join us on Thursday, January 20th at 3 PM ET for a very special bonus event in Conn Maciel Carey’s 2022 OSHA Webinar Series in the form of a panel webinar program regarding OSHA COVID-19 Regulation and Enforcement After the Supreme Court Stayed the Vaccinate-or-Test ETS.

Presented by
Conn Maciel Carey LLP with Special Guests
Neal Katyal and Jordan Barab

In this exclusive, bonus program we will facilitate a panel discussion regarding the Supreme Court’s recent decision to stay OSHA’s Vaccinate-or-Test emergency temporary standard, what that decision means for employers in fed OSHA and State OSH Plan states, and how OSHA will address the COVID-19 hazard in the workplace moving forward.

We are especially excited to be hosting a remarkable cast of panelists for this event:

  • Neal Katyal – former Acting Solicitor General of the United States and leading Constitutional Law expert; Partner at Hogan Lovells and Professor of Law at Georgetown University Law Center
  • Jordan Barab – President Obama’s Deputy Assistant Secretary of Labor for OSHA and Acting Head of OSHA; former Sr. Policy Advisor to the US House Education and Labor Committee
  • Moderated by Eric J. Conn, Chair, Conn Maciel Carey LLP’s national OSHA Practice Group

The Supreme Court has spoken, and OSHA’s Vaccination, Testing and Face Coverings Emergency Temporary Standard is once again subject to a nationwide judicial stay.  The conservative majority on the Court reasoned that the 50-year old OSH Act does not include an explicit-enough delegation of authority from the US Congress for OSHA to issue a regulation that addresses an issue that is not unique to the workplace and which is of such great economic and social significance. Shortly after the Supreme Court issued its decision, Secretary of Labor Marty Walsh announced that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

So, the big question facing employers now is what are the potential regulatory pitfalls from unwinding or stopping the implementation of any of their COVID-19 prevention and/or vaccination policies developed either in response to OSHA’s Vaccinate-or-Test ETS or more general efforts to keep up with CDC recommendations and/or protect against OSHA General Duty Clause citations?  Or said another way, without the COVID-19 emergency standards, what does OSHA expect from employers on the COVID-19 front to avoid enforcement?
Continue reading →

OSHA Updates its Testing-Related FAQs about the COVID-19 Vaccination, Testing, and Face Coverings ETS

Eric J. Conn 3 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

We wanted to share (hopefully) one last ETS update before Christmas.  As you know, when the Fifth Circuit issued its Stay of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS) in November, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  Essentially, OSHA said it was “pencils down” completely – no longer responding to email inquiries about interpretations of ETS terms, no longer speaking/presenting about the ETS, and importantly, no longer producing additional compliance guidance or FAQs.

With the Sixth Circuit lifting the Stay last week, however, OSHA immediately updated its website to reflect that the agency “can now once again implement this vital workplace health standard.”  OSHA went right back to work on compliance assistance, not just licking its chops to start enforcing the rule.  Indeed, in the last couple of days, OSHA has updated its FAQs on its Vaccination and Testing ETS webpage, including several about the confusing and challenging testing elements of the ETS (See Section 6 – and 6P. through 6.X. are the news testing FAQs).  Below are a few of the notable new testing-related FAQs that address questions we were fielding frequently (and thankfully answering correctly):

Continue reading →

OSHA Announces COVID-19 National Emphasis Program and Updated Interim Enforcement Response Plan

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

While OSHA is expected today, March 15th, to confirm that it will issue a COVID-19 Emergency Temporary Standard (ETS), and to get that ETS released within a month, there were also a couple of important developments last week regarding OSHA’s approach to COVID-19 enforcement.

On Friday afternoon, March 12th, OSHA launched a COVID-19 National Emphasis Program (“COVID-19 NEP”) to:

“focus its inspection and enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.”

This move by OSHA was not unexpected.  As we previously shared, Pres. Biden’s Day-1 OSHA Executive Order on Protecting Worker Health and Safety (the same EO that called for the COVID-19 ETS), separately called for OSHA to issue a COVID-19 NEP.

Goals of the COVID-19 NEP

In today’s announcement about the COVID-19 NEP, OSHA explained that “the goal of this NEP is to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”  The NEP includes “an added focus to ensure that workers are protected from retaliation” and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Industries and Workplaces Covered by the NEP

OSHA also explained that inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected by OSHA in 2020, but principally will focus on establishments in industries identified on targeting lists OSHA will develop now.  The NEP covers a broader set of workplaces than seems consistent with the goals of the NEP.  The directive creates three different lists of covered workplaces – high risk healthcare establishments and high risk non-healthcare establishments (which is how the NEP has been described), and also a third list of “Supplemental Industries for non-Healthcare in Essential Critical Infrastructure” that does not have the same high exposure risk characteristics of the first two lists.  The industries covered by these three lists are included at the bottom of this email.  Area Offices may also “add establishments to the generated master lists based on information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or from other federal agencies with joint jurisdictions, such as the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Agriculture (USDA), media referrals or previous OSHA inspection history).” Continue reading →

President Biden’s Day 1 Executive Order regarding OSHA’s Response to the COVID-19 Pandemic

Eric J. Conn 13 Comments

By Conn Maciel Carey’s COVID-19 Task Force

We did not have to wait long for the big update we have been holding our breath about – what the Biden Administration’s plans will be for a federal COVID-19 emergency standard.  As we expected, in just his first full day in Office (January 21, 2021), President Biden has already issued an Executive Order focused on OSHA’s approach to managing the COVID-19 crisis in the workplace, but the answer about a federal COVID-19 ETS is not as clear as we expected, or at least, the definitive answer will come a little later.

In the Order entitled “Executive Order on Protecting Worker Health and Safety,” President Biden has directed federal OSHA to revisit its overall strategy for regulating and enforcing issues associated with workplace spread of COVID-19 to execute his Administration’s policy on worker safety:

“Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.”

Specifically, President Biden has directed the Assistant Secretary of Labor for OSHA to take four key actions relative to COVID-19 in the workplace: Continue reading →

[Webinar] Process Safety Update: The Latest with OSHA PSM & EPA RMP

Theresa Green Leave a comment

On Tuesday, November 17th at 1 PM Eastern, join Eric J. Conn, Micah Smith and Beeta Lashkari for a complimentary webinar: Process Safety Update: The Latest with OSHA PSM & EPA RMP.

Following the 2013 West Fertilizer explosion, then-President Obama issued Exec. Orders directing OSHA, EPA and other agencies to “modernize” the chemical process safety regulatory landscape. OSHA and EPA took sweeping actions, from enforcement initiatives (like a new PSM National Emphasis Program) to rulemakings and interpretation letters.

Then President Trump took office with a de-regulatory agenda.  But rather than unwavering deregulation, Trump Admin. initiatives in this area have been splintered, with some deregulatory work proceeding (e.g., rollback of RMP amendments), others coming to a complete halt (e.g., PSM reform rulemaking), and still others moving forward like business as usual (e.g., the Chem/REF PSM NEP inspections and the CSB’s new accidental release reporting rule).  And now, with the Presidential Election behind us (sort of), and a new Biden Administration looming, we could see another significant shake-up of the regulatory landscape.

This webinar reviews the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, CSB developments, and other process safety issues, such as the recent 10th Cir. Decision on PSM application to interconnected and co-located vessels.

Click here to register for the November 17th webinar. Continue reading →

Confounding Expectations, OSHA Enforcement in the Trump Administration Is On the Rise

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA.  Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.

The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission.  Quite to the contrary, relevant enforcement data reveals enforcement creep.  With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.

Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:

  • OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
  • The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)

  • The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
  • The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)

Continue reading →