OSHA

A (Brief) Preview of the Future of Workplace Safety & Health: Trump’s Nominee to Lead OSHA Appears Before the Senate HELP Committee

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By Aaron Gelb, Eric J. Conn, Kate McMahon, and Rachel Conn

On Thursday, June 5, David Keeling, President Trump’s nominee to serve as Assistant Secretary of Labor (OSHA), appeared before the Senate Committee on Health, Education, Labor and Pensions (the “HELP Committee”).  After starting his career as a package handler, and member of the Teamsters union, at United Parcel Service (UPS) in 1985, held a variety of safety-focused roles, eventually serving as the global head of safety for the package handling giant.  After his long and distinguished career in safety at UPS, Keeling served as the Director of Road and Transportation Safety at Amazon from 2021 to 2023, during which time the company was working to resolve OSHA investigations through improved ergonomic safety procedures.

Regular readers of the OSHA Defense Report no doubt recall that during the first Trump Administration (2017-2021), for the first time in OSHA’s history, the agency went four years without a Senate-confirmed Assistant Secretary at the helm.  The second Trump Administration appears to be taking a very different approach by quickly nominating Keeling and ensuring that he gets his turn before the Senate HELP Committee before the Summer begins, increasing the odds that there will be a Trump-appointed Head of OSHA before the Fall of the first year of President’s Trump second term.

Keeling prefaced his remarks by stating Continue reading →

Biden’s OSHA Pushes Heat Illness Prevention Rule Close to the Finish Line

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By Eric Conn, Beeta Lashkari and Darius Rohani-Shukla

On January 14, 2025, just six days before the transition from the Biden Administration to the second Trump Administration, OSHA closed the books on collecting public comments about the agency’s Notice of Proposed Rulemaking (“NPRM”) for a Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard, taking the proposed rule one step (perhaps a very long step now) away from issuing a final Heat Standard. On behalf of the Employers Heat Illness Prevention Coalition, we submitted a robust set of written comments detailing our concerns about some of the more onerous and rigid aspects of the proposed rule.

Although OSHA has now moved the Heat Rulemaking so close to the finish line, it is likely that the finish line will be pushed back, potentially for at least four years.  We do not expect Trump’s OSHA to engage in much, if any, rulemaking activity, other than de-regulatory actions. From a process standpoint though, the next time there is a Democrat in the White House, OSHA would inherit this flawed proposed rule and could issue it without having to navigate through any of the rigors of Administrative Procedure Act notice-and-comment rulemaking (i.e., there will not be another Small Business Advocacy Review (“SBAR”) Panel, or another NPRM and public comment period).  So, that written comment period was one of the last chances for stakeholders to submit written comments about a proposed federal heat illness prevention standard.

Below we provide a history of the rulemaking, an outline of key requirements in the proposed rule, a high-level summary of the comments submitted by our Employers Rulemaking Coalition,  our thoughts on the upcoming public rulemaking hearing, and a reminder about OSHA’s Heat National Enforcement Program (“NEP”), since, before you know it, summer temperatures will be here again.

Continue reading →

Key OSHRC Rulings Explained: Secretary of Labor v. Trinity Solar LLC

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By Valerie Butera

Welcome to “Key OSHRC Rulings Explained,” a new series in Conn Maciel Carey LLP’s OSHA Defense Report blog, designed to explore significant case summaries of Occupational Safety and Health Review Commission (OSHRC) decisions. This series will provide clarity and context on key OSHRC rulings that have shaped workplace safety standards and compliance obligations under the Occupational Safety and Health Act. Our goal is to provide concise, insightful analyses of these rulings to help employers and safety professionals stay informed about evolving interpretations and enforcement trends, prepare for subsequent compliance obligations, and navigate the legal landscape of workplace safety. We invite you to follow along as we unpack the most impactful OSHRC decisions and their practical implications.

Our first case law summary in the series will cover the Secretary of Labor v. Trinity Solar LLC, as successor to Trinity Solar Inc., OSHRC Docket No. 23-0712 (Dec. 26, 2024).

Executive Summary Continue reading →

Virginia Moves Toward Stronger Workplace Violence Prevention Laws with HB 1919

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By Rachel Conn and Andrea Chavez

Workplace safety is becoming a legislative priority across the country, and Virginia is poised to join the movement. On March 7, 2025, the Virginia House of Delegates passed House Bill 1919 (HB 1919), which would require large employers with 100 or more employees to implement workplace violence prevention policies by January 1, 2027. Governor Glenn Youngkin has until 11:59 p.m. on March 24, 2025, to sign the bill into law.

If signed into law, it would take effect on July 1, 2026. Starting July 1, 2027, employers found noncompliant could face civil penalties of up to $1,000 per violation.

Expanding the Definition of Workplace Violence

HB 1919 takes a broad approach to workplace violence, defining it as any act or threat of violence occurring at work while an employee is performing job duties. The bill specifically includes: Continue reading →

Senior Leadership at DOL, OSHA, and MSHA Under a 2nd Trump Administration Is Taking Shape

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By Eric J. Conn and Darius Rohani-Shukla

As Rep. Lori Chavez-DeRemer braces for a flurry of questions at her confirmation hearing before the Senate Committee on Health, Education, Labor, and Pensions (HELP) on her way to a full Senate vote to become President Trump’s Secretary of Labor, the Trump Administration is assembling its new senior leadership team to oversee workplace safety and labor policy. These key nominees will shape enforcement priorities, compliance strategies, and industry engagement across OSHA, MSHA, and the broader Department of Labor:

  • Lori Chavez-DeRemer – Nominee for Secretary of Labor: A former mayor and member of Congress, with unexpected ties to labor, is expected to emphasize regulatory flexibility and employer engagement.
  • Keith Sonderling – Nominee for Deputy Secretary of Labor: A former EEOC Commissioner and Dept of Labor official with expertise in AI, employment law, and compliance initiatives.
  • David Keeling – Nominee for Assistant Secretary of Labor for OSHA: A veteran of UPS and Amazon with decades of experience managing workplace safety in complex work environments.
  • Amanda Wood Laihow – Nominee for Deputy Assistant Secretary for OSHA: A former Commissioner at the OSH Review Commission and legal and policy expert with the National Association of Manufacturers.
  • Wayne Palmer – Nominee for MSHA Administrator: A regulatory veteran with previous leadership experience at MSHA and in the mining industry.

With these appointments, the second Trump Administration is signaling a shift in labor and workplace safety policy, though how far and how fast the pendulum will swing remains to be seen. Will workplace safety regulations lean toward deregulation, targeted enforcement, or greater collaboration with industry stakeholders? These questions will be central in upcoming confirmation hearings. Below is a deeper look at each nominee and the potential impact of their leadership on the operations of OSHA, MSHA, and the Department of Labor’s many other divisions. Continue reading →

The Pendulum Swings: Early Executive Actions by Trump Portend a Major Contraction at OSHA

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By Eric J. Conn and Darius Rohani-Shukla

President Trump was sworn in for a second term the morning of January 20th, and he spent the rest of that day setting a record for the most ever Day 1 executive actions (i.e., Executive Orders, Proclamations, pardons, etc.).  Among those Day 1 executive actions (and a couple others that followed later in his first week back in the White House), was a series of Executive Orders (EOs) and directives targeting staffing, budgeting, and rulemaking, which are designed to drastically shrink regulatory and enforcement agencies, like OSHA.  These executive actions – including a hiring freeze, budget cuts, return-to-office mandates, buyouts, and reclassification of career positions into political appointments – are part of a systematic strategy to diminish regulatory agencies.

This effort to shrink OSHA and other executive agencies should come as no surprise to anyone.  Dismantling the administrative state was a stated goal of the first Trump Administration and again from the campaign trail this time, and that was one campaign promise President Trump delivered on the last go around.  By the end of the first Trump Administration, federal OSHA had shrunk to the fewest number of compliance officers in the agency’s history (dropping from 952 compliance officers at the start of the Trump Administration in 2016 to 761 by January 2020), and the agency had a record number of vacancies in “middle management” positions throughout the Area and Regional field offices.

The Biden Administration focused on rebuilding the ranks at OSHA.  Biden had a Deputy Assistant Secretary for OSHA sworn in just a couple of hours after himself on Day 1, and then dedicated the next four years to hiring more than a hundred new compliance officers and filling vacancies through the agency.  By the end of 2023, the Biden Administration had built the number of OSHA inspectors back up to 878.

Starting on Day 1 of the second Trump Administration, the writing has been on the wall for OSHA that it is about to experience another major contraction.  A smaller OSHA means less resources to conduct inspections (OSHA conducted thousands of fewer inspections during the first Trump Administration than during the Obama or Biden Administrations), engage in robust enforcement (the total number of citations and significant enforcement actions decreased during the first Trump Administration), and to work on or promulgate new standards (there was essentially no new rulemaking, other than deregulatory rulemaking, during the first Trump Administration).  We predict similar effects on the work of OSHA during this term.

Here is a breakdown of the key Day 1 and Week 1 executive actions that are designed to weaken federal agencies like OSHA: Continue reading →

New U.S. Chemical Safety Board Tool – Summary “Incident Reports”

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By Beeta B. Lashkari and Eric J. Conn

On Tuesday, January 14, the CSB announced a new “incident report” tool, calling it a “new safety product to provide the public with more information about serious chemical incidents reported to the agency.”  Through its announcement, the CSB released the first volume of incident reports.  The CSB will be compiling summaries of incidents reported under its Accidental Release Reporting Rule (“ARRR”) and making them available to the public on the CSB’s website on a regular basis.

As for the first volume of incident reports, it covers 26 accidental release events, spanning in time from April 2020 to September 2023.  Those events occurred in 15 states (California, Colorado, Georgia, Illinois, Iowa, Kentucky, Louisiana, Massachusetts, Minnesota, New Mexico, North Carolina, North Dakota, South Carolina, Tennessee, and Texas), and together, resulted in five fatalities, 17 serious injuries, and approximately $700 million in property damage.  Each incident report includes a summary of the event and its probable cause.  In its announcement, the CSB specifically calls out the events covered in the first volume: Continue reading →

Announcing Conn Maciel Carey’s 2025 OSHA Webinar Series

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Following another close national election, President Trump returns to the White House for a second term, and resumes control over the vast Executive Branch bureaucracy, including the Department of Labor’s Occupational Safety and Health Administration.  Now we turn the page from four extraordinary years at OSHA under a Biden/Harris Administration, where we saw record-setting enforcement and a flurry of new rulemaking, and watch the pendulum swing as control at OSHA transitions to the Trump/Vance Administration.  However, just how much, how quickly, and in what ways OSHA’s priorities will swing remain to be seen.  So, now is the perfect time to take a close look at what we learned from and about OSHA during the last few very eventful years, and more importantly, look ahead and assess what we can expect from OSHA the next four years, as President Trump installs his own team at the Department of Labor.

One thing is for sure, change is coming at OSHA.  Accordingly, it is more important now than ever for employers to keep a close watch on developments at OSHA.  Conn Maciel Carey LLP’s complimentary 2025 OSHA Webinar Series, which includes monthly programs (sometimes more often) put on by the OSHA-specialist 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 registration link within the individual program descriptions below, Continue reading →

Nevada Adopts New Heat-Illness Regulation

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By Andrea Chavez and Rachel Conn

On November 15, 2024, Nevada adopted a heat-illness regulation (R131-24AP) designed to protect workers from rising temperatures. Nevada’s new regulation reflects a growing trend among states implementing measures to protect workers from heat illness. In July 2024, California introduced an indoor heat illness regulation, building on its long-standing outdoor heat illness requirements. For more details on the California regulation, check out our blog post.

The new Nevada regulation requires employers to conduct a job hazard analysis, maintain a written safety program, implement emergency response procedures, and provide worker training.

The regulation does not apply to employees working indoors or in vehicles with effective climate control systems. If the climate control system becomes non-functional, employers must make good-faith efforts to restore functionality promptly. Until restored, interim measures must address potential heat illness hazards.

According to the Division of Industrial Relations, it will publish employer guidance on its website, and the Division’s Safety Consultation and Training Section will develop and post training courses on it’s website in the coming weeks. The regulation became effective upon filing by the Nevada Secretary of State. Enforcement of the regulation will begin 90 days from the publication of the guidance.1

The regulation applies to employers with more than 10 employees and establishes requirements to mitigate heat illness risks. Key provisions include: Continue reading →

Trump 2.0, OSHA: Expect Shifts in Federal Enforcement and Rulemaking Priorities As Well As More Aggressive State Plan Enforcement

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By Scott Hecker, Rachel L. Conn, Eric J. Conn, and Aaron R. Gelb

As the dust settles on the 2024 Election Cycle and the pundits continue analyzing and dissecting the results, the OSHA/MSHA Team at Conn Maciel Carey draws from decades of experience representing employers during Republican and Democratic administrations to forecast how the workplace safety and health landscape may change with respect to enforcement, compliance assistance, and rulemaking under a second Trump Administration.

Enforcement Resources and Priorities

At the federal level, history can provide insight into the likely priorities of a second Trump term.  As loyal readers of this blog know, OSHA operated without a confirmed Assistant Secretary for the entirety of the first Trump Administration.  While agencies lacking Senate-confirmed leaders can feel adrift and directionless, with confusion about roles, responsibilities, and priorities, it was essentially business as usual at OSHA under Trump—at least until COVID-19 hit—with other agencies facing more focused efforts to deregulate.  While it is not yet clear how quickly the second Trump Administration will turn its sights to OSHA, we’re unlikely to see a push to increase OSHA’s budget or even to backfill enforcement personnel who leave the agency.  OSHA had the fewest compliance officers in its history during the Trump Administration, and despite efforts by President Biden to increase staffing levels, the number of enforcement personnel is sure to ebb again.  Fewer compliance officers will lead to decreased enforcement activity, as well as overwhelming workloads for remaining employees, and such a combination often results in reduced morale.

OSHA under Trump 2.0 is likely to adopt more employer-friendly policies than President Biden’s current administration and could: Continue reading →

OSHA Updates Animal Slaughtering and Processing Worker Safety Enforcement Inspection Guidance

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By Eric J. Conn and Samuel S. Rose

On October 15, 2024, OSHA issued Inspection Guidance for Animal Slaughtering and Processing Establishments that updates enforcement protocols for the agency’s field staff and compliance guidance for employers in NAICS Code 3116 (Animal Slaughtering and Processing), which includes NAICS Codes 311611 (Animal (except Poultry) Slaughtering), 311612 (Meat processed from carcasses), 311613 (Rendering and meat byproduct processing), and 311615 (Poultry processing).   The guidance takes the form of a memorandum from the Director of OSHA’s Directorate of Enforcement Programs out to all of OSHA’s Regional Offices.

OSHA justified the need for the updated enforcement guidance by noting that animal slaughtering and processing workers suffer serious injuries at a rate that is more than double that of all industries combined.

The updated OSHA guidance supersedes and replaces OSHA’s October 28, 2015 “Inspection Guidance for Poultry Slaughtering and Poultry Processing Establishments.”

The memorandum encourages each OSHA Region to determine whether a special enforcement emphasis program — either a Regional or Local Emphasis Program — is justified after reviewing relevant data in their regions. There are currently active emphasis programs in Region 4 (Regional Emphasis Program for Poultry Processing Facilities covering Georgia, Florida, North Carolina and South Carolina), Region 5 (Regional Emphasis Program for Food Manufacturing Industry covering Illinois, Ohio, Wisconsin, Michigan, Indiana, and Minnesota), Region 6 (Regional Emphasis Program for Poultry Processing Facilities covering Texas, Oklahoma, Arkansas, Louisiana, and New Mexico), and Region 7 (Nebraska Local Emphasis Program for Meat Processing Industries).  Because OSHA believes these hazards are pervasive nationwide, State OSH Plans, especially those with significant meat and poultry processing industries, are encouraged by OSHA in this enforcement memorandum to follow this guidance document.

Pursuant to OSHA’s updated memorandum, all programmed and unprogrammed inspections in NAICS 3116 will scrutinize Continue reading →

Fed OSHA’s Heat Illness Prevention Proposed Rule Officially Published in the Federal Register

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By Conn Maciel Carey LLP’s OSHA • Workplace Safety Group

As you may recall, way back on July 2nd, OSHA “revealed” an unofficial pre-publication version of a Notice of Proposed Rulemaking (NPRM) for a federal Indoor and Outdoor Heat Illness Prevention Rule.  After a peculiar delay (apparently the result of having to format the numerous tables, charts, and graphics from the 1,000+ page NPRM package), the official NPRM was published in the Federal Register today, Friday, August 30th.

We have reviewed the official NPRM, and, for better or worse, we can verify that OSHA did not make any substantive changes to the proposed rule from the version that had been revealed back in July.

In the official NPRM, OSHA maintains its previously suggested 120-day public comment period.  But 120-days from August 30th is December 30th.  Since that is the week between Christmas and New Years, stakeholders will almost certainly request an extension of the comment period — a request that only the Grinch could refuse.

What is in OSHA’s NPRM for the Heat Illness Rule?

Below we have outlined our analysis of OSHA’s proposed rule. Continue reading →

Process Safety Update: OSHA’s PSM Standard, EPA’s RMP Rule, the Chemical Safety Board, and their California Counterparts [Webinar Recording]

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On Monday, August 5, 2024, Rachel Conn, Valerie Butera, Andrea Chavez, and Beeta Lashkari presented a webinar covering a Process Safety Update: The Latest with OSHA’s PSM Standard, EPA’s RMP Rule, the Chemical Safety Board, and their California Counterparts.

After years of stagnation, we’ve finally seen movement on updating process safety regulations during the Biden administration. But the revamped PSM standard and RMP rules have yet to see the light of day. During this webinar, we discussed when we might expect final rules and how employers can prepare for the new burdens they will create. Cal/OSHA’s PSM standard and CalARP’s RMP rule resemble the federal rules but present their own unique set of compliance challenges. Also, we compared and contrasted the rules and talked about strategies for compliance.

Participants in this webinar learned about: Continue reading →

Destabilized But Not Yet Deconstructed: Analysis of This Momentous SCOTUS Term for the Administrative State

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By Conn Maciel Carey’s national OSHA Practice Group

The 2023-2024 Term of the United States Supreme Court will undoubtedly have far-reaching implications in a number of areas, but perhaps most significantly—at least for regular readers of the OSHA Defense Report blog—with respect to the ability of federal agencies to promulgate and enforce regulations.  In a trio of recent decisions addressing federally mandated monitors in fishing vessels (Loper Bright v. Raimondo), civil fines imposed by the Securities and Exchange Commission (SEC v. Jarkesy) and payment network processing fees incurred by a truck stop (Corner Post, Inc. v. Board of Governors of the Federal Reserve System), the High Court sent shockwaves that will likely reverberate through all federal agencies and the regulated community alike for years to come.

The familiar framework in which these agencies have long operated, dating back to the mid-1980s when Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. was decided, appears to have been upended, or at least is now resting on shaky ground. And while these three decisions do not, by themselves, dismantle the administrative state, they have the potential to significantly reorder the familiar foundations upon which OSHA and dozens of other administrative agencies have operated.

Perhaps most importantly, these decisions appear to open the door wide for future challenges to vast swaths of the Code of Federal Regulations that currently govern how businesses and other regulated entities operate today and the venue where regulatory disputes are resolved. This article examines the implications of these cases and offers some educated speculation about the sea change that may occur at OSHA and elsewhere over the next few years. Continue reading →

Analysis of OSHA’s Proposed Heat Illness Prevention Rule – Sign-up for the Kickoff Meeting for CMC’s Employers Heat Rulemaking Coalition

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By Eric J. Conn and Beeta B. Lashkari

On July 2, 2024, OSHA revealed an unofficial version of its Notice of Proposed Rulemaking (NPRM) for an Indoor and Outdoor Heat Illness Prevention Rule.  For unknown reasons, OSHA has not yet published the official NPRM in the Federal Register, but it is expected any day.  Interested stakeholders will have a 120-day period to submit public comments to OSHA after the NPRM is published, which will make comments due likely sometime in December 2024.

CMC’s Employers Heat Illness Prevention Rulemaking Coalition has had a prominent seat at the table from the get-go to advocate for the most reasonable possible standard. Read our article here for more information about our advocacy to OSHA during earlier stages of OSHA’s Heat Illness Rulemaking.

This Alert provides a detailed summary of what is in OSHA’s proposed Indoor and Outdoor Heat Illness Prevention Rule and how to ensure your industry’s interest are represented during the final phase of OSHA’s Heat Illness Rulemaking.

What is in OSHA’s NPRM for the Heat Illness Rule

Below is a summary of what is in the NPRM and some of our initial impressions of OSHA’s proposal: Continue reading →

National and Local Emphasis Programs [Webinar Recording]

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On Thursday, July 18, 2024, Aaron Gelb, Mark Ishu, and Dan Deacon presented a webinar about National and Local Emphasis Programs.

Employers expect OSHA to show up after reporting a serious incident or when employees complain about certain types of hazards, but the agency has been focused now, more than ever it seems, on proactive enforcement methods.

As part of this strategy, OSHA has launched a series of new National Emphasis Programs (“NEP”) targeting heat illness, silica, and the warehousing industry, while also announcing a number of new Regional and Local Emphasis Programs (“REP” and “LEP”) across the country. Employers in the covered industries should take note because their establishments can be selected for an inspection under these programs even if they have an exemplary safety record, have not been subjected to any complaints, and have not recently reported a serious incident. Understanding these enforcement priorities is vital for companies to better prepare for potential regulatory inspections.

Additionally, the enforcement directives created by OSHA for these programs contain blueprints for how OSHA plans and conducts inspections of covered employers, so there is no excuse not to be prepared for the inevitable knock on the door. This was an informed discussion about what covered employers can expect if selected for an emphasis program inspection and what can be done now to prepare.

Participants in this webinar learned: Continue reading →

OSHA’s Hazard Communication Standards Update [Webinar Recording]

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On Thursday, June 20, 2024, CMC attorney Kate McMahon and special guest speaker Maureen Ruskin presented a webinar discussing OSHA’s Hazard Communication Standards Update.

OSHA published its long-in-the-making revision to the Hazard Communication Standard (HCS) on May 20, 2024. OSHA’s revised its standard to better align with the United Nations’ Globally Harmonized System of Classification (GHS) in order to enhance conformity with international trading partners and other U.S. agencies, although the standard aligns with outdated version 7 of the GHS. The new standard also builds into the regulatory language a myriad of interpretations the agency has made since it first released its GHS-aligned HCS in 2012. In making these changes, OSHA has introduced numerous new regulatory obligations for chemical manufacturers, importers, distributors, and downstream users required to communicate chemical hazard information.

This webinar explained the changes to the HCS, identified key compliance deadlines, and explained what employers need to do to come into compliance. Specifically, participants in this webinar learned:  Continue reading →

Industry Groups and Congressional Leaders Attack OSHA’s New “Worker Walkaround” Inspection Rule

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By Eric J. Conn, Mark Trapp, and Darius Rohani-Shukla

To advance the Biden Administration’s promise to be “the most labor friendly administration in history,” on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – to open the door to participation in OSHA inspections by third parties, including union representatives at non-union workplaces, disgruntled former employees, plaintiffs’ attorneys or their experts, and scores of others.

OSHA’s new final rule went into effect on May 31, 2024, but ten days before that, on May 21st, the US Chamber of Commerce, with various other industry and business groups, filed a lawsuit in the US District Court for the Western District of Texas challenging the legality of OSHA’s new Worker Walkaround Rule.  The lawsuit, Chamber of Commerce v. OSHA, seeks to postpone enforcement of OSHA’s new Worker Walkaround Rule and ultimately to permanently vacate the new regulation. Continue reading →

OSHA’s New Worker Walkaround Rule [Webinar Recording]

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On Tuesday, May 28, 2024, Eric J. Conn and Mark M. Trapp presented a webinar discussing OSHA’s New Worker Walkaround Rule.

OSHA’s new final Worker Walkaround Rule amends its existing regulation at 29 CFR § 1903.8(c) in two material ways: Changing the extreme bias against third-party employee representative participation in OSHA inspections by changing existing language to allow non-employee third parties to act as employee representatives during OSHA inspections; and Expanding the types of third parties permitted to represent employees during OSHA inspections by changing existing language limiting such representatives to credentialed certified industrial hygienists or professional safety engineers, to now permitting any third-party representative who has “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”

Participants in this webinar learned about Continue reading →

Update On OSHA’s Heat Illness Prevention Rulemaking – Join CMC’s Rulemaking Coalition for the Final Phase

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By Beeta B. Lashkari, Eric J. Conn, and Kate M. McMahon

Unsurprisingly, as temperatures rise, activity on OSHA’s Outdoor and Indoor Heat Illness Prevention rulemaking is heating up, too.  On May 8, 2024, OSHA announced that it is moving closer to publishing a proposed Heat Illness Rule for U.S. workers in both outdoor and indoor settings.  Indeed, timing-wise, Acting Labor Secretary Julie Su told lawmakers at a May 1st House oversight hearing that OSHA expects to release a Notice of Proposed Rulemaking advancing its long-awaited heat injury and illness prevention standard “later this year.”

Background

The good news is, even before a proposed rule has been issued, we are already seeing the effective work of our employers rulemaking coalition pay off.  As a reminder, Conn Maciel Carey has organized and led a diverse coalition of national employers and trade associations representing many industries, from construction and energy, to manufacturing, petroleum refining and chemical manufacturing, retailers and grocers, utilities, warehousing, and many more.  We have had a prominent “seat at the table” in this rulemaking from the get-go.  During what we called “Phase One” of OSHA’s heat illness rulemaking, in January of 2022, we Continue reading →

Update on OSHA’s Emergency Response Rulemaking

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By Beeta B. Lashkari and Eric J. Conn

On February 5, 2024, OSHA revealed its Notice of Proposed Rulemaking for a new Emergency Response Standard, initiating a public comment period.  As we previously reported, the rulemaking is designed to update OSHA’s existing Fire Brigades Standard and to expand safety and health requirements related to emergency responders – both public and private.

Although OSHA extended the deadline by which comments must be filed from May 6 to June 21, that day is approaching fast, especially given the length, technical nature, and complexity of the proposed rule.  To that end, we are writing to re-gauge your organization’s interest in participating in a coalition of employers and trade associations to work on this OSHA rulemaking with us.

Background About OSHA’s Emergency Response Rulemaking

Per OSHA, the proposed Emergency Response Standard is meant to replace the existing Fire Brigades Standard and will update safety and health protections in line with national consensus standards for a broad range of workers exposed to hazards that arise during emergencies.  While the number of requirements will significantly increase, so too would the scope of the standard.  Particularly, the existing Fire Brigades Standard would be substantially expanded to apply to Continue reading →

What You Need to Know About OSHA’s Updated Hazard Communication (Chemical Right-to-Know) Standard

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By Valerie Butera and Kate McMahon

On May 20, 2024, OSHA published a significant revision to the Hazard Communication Standard (HCS) in an effort to better align the HCS with the United Nations’ Globally Harmonized System of Classification, primarily Revision 7 (GHS).  This final rule also seeks to clarify ambiguities left unresolved by the last set of revisions to the HCS and to improve alignment with other federal agencies and international trading partners.

In making these changes, OSHA has created a host of new regulatory hurdles for chemical manufacturers, importers, distributors, and downstream users.  The final rule becomes effective July 20, 2024, but offers a grace period during which the regulated community may comply with the final rule or the prior version of the HCS.

CMC sat down with Maureen Ruskin, the now-former OSHA official who led the effort to align the HCS with the GHS, to discuss the changes in this final rule.  Our conversation informed this Client Alert, which begins with an overview of the biggest impacts the final rule will have on the regulated community and the timeline for coming into compliance with the new and changed requirements, provides a detailed discussion of what the final rule says and means, explores significant changes between the language of the proposed rule and what was actually adopted in the final rule, and explores tips and strategies for compliance.

Implications for the Regulated Community

The final rule impacts nearly every aspect of hazard communication – from Continue reading →

Everything You Need to Know About OSHA’s New Worker Walkaround Representative Designation Process Rule

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

Like a bad April Fool’s joke, to advance the Biden Administration’s promise to be “the most labor friendly administration in history,” on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – and will profoundly affect employers’ legal risk in future OSHA inspections when it goes into effect on May 31, 2024.

This Client Alert covers the controversial history of this rulemaking, from an Obama Era Letter of Interpretation and related legal challenges, through the flawed rulemaking process that OSHA followed to promulgate the new rule, to a detailed review of what the final rule says and means, along with analysis about the implications for employers, expected legal challenges to the Rule, and tips and strategies for managing OSHA inspections in this new world order.

Background

OSHA’s regulation governing participation in OSHA inspection by employee representatives, 29 C.F.R. 1903.8(c), was established in 1993, and it granted employees and their representatives the right to accompany OSHA compliance officers during the physical walkaround phase of workplace inspections.  In February 2013, the Obama-Biden Administration sought to give union representatives authority to participate in OSHA inspections at non-union workplaces by way of a formal Letter of Interpretation.  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

That question had to be considered within the context of the existing regulatory text of 29 C.F.R. 1903.8(c) at that time:

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding pretty clear regulatorylimitations to third party inspection participation rights, including an expectation that any third party participant must have some type of technical credential (e.g., professional safety engineer or certified industrial hygiene), OSHA responded to the union’s interpretation request in the affirmative, explaining: Continue reading →

BREAKING: OSHA Issues Final Worker Walkaround Representative Designation Process Rule

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

After an unusually short time at OMB, earlier today, OSHA revealed a pre-publication version of its Final Worker Walkaround Representative Designation Process Rule.  The Official Final Rule will issue when it is published in the Federal Register next week, on April 1, 2024, and it will go into effect on May 31, 2024.

As expected, OSHA pushed this rule out ahead of the Congressional Review Act window – 60 legislative days before a possible transition to a new Administration and new Congress. By issuing the rule this far ahead of the next election, OSHA has avoided the risk that a possible new Republican Congress and President could repeal this rule under the CRA, preventing OSHA from ever promulgating a substantially similar rule in the future.

As a reminder, OSHA initially sought to amend its existing regulation at 29 CFR § 1903.8(c) in three ways:

  1. Changing the extreme bias against third party employee representative participation in OSHA inspections by changing existing language to allow non-employee third parties to act as employee representatives during OSHA inspections;
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections by changing existing language limiting such representatives to credentialed certified industrial hygienists or professional safety engineers, to now permitting any third-party representative who has “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills”; and
  3. Expanding the role these third-party representatives play during an OSHA inspection from simply “accompanying” OSHA during the physical walkaround phase of the inspection, to “participating” in the inspection, which presumably would include attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA pursuant to OSHA’s broad subpoena authority, etc.

Conn Maciel Carey’s OSHA Rulemaking Coalition pushed back on all of these changes, and it appears we achieved a little success.  Here is the new final regulatory text: Continue reading →

OSHA’s Worker Walkaround Rule Clears OMB Review – Final Rule Is Imminent

Eric J. Conn 2 Comments

By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

We have an important update to share about the status and now more clear outcome of OSHA’s rulemaking for a Worker Walkaround Designation Process Rule.  Yesterday, OMB updated the entry on its website about the Worker Walkaround Rulemaking to reflect that OMB/OIRA has concluded its regulatory review under EO 12866, cancelling the remaining stakeholder meetings that had been scheduled.  In total, OMB hosted sixteen EO 12866 stakeholder meetings.  The entry reflecting the EO 12866 meeting with Conn Maciel Carey’s Rulemaking Coalition’s is here.

As you can see below, OMB has updated its entry for this rulemaking to reflect: “OIRA Conclusion of EO 12866 Review.”

What we can also see from this entry is that OMB has, unfortunately, NOT Continue reading →