BREAKING – OSHA Launches New COVID-19 Enforcement Blitz for Healthcare Employers

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

On Tuesday, March 8th, OSHA announced a major COVID-19 enforcement blitz in the healthcare industry that will last for the next three months.  OSHA issued an enforcement memorandum announcing the enforcement program, which OSHA is referring to as a major “saturation effort,” to ensure that hospitals and others in the healthcare industry have appropriate COVID-19 mitigation protocols in place to protect workers today and are prepared for a future variant.  The program will be comprised of a short-term burst of highly-focused inspections directed at hospitals and skilled nursing care facilities that treat COVID-19 patients.  Below is a summary of who is covered, when the enforcement effort will end, the impact on State OSH Plans, and what to expect during the inspections.

OSHA states that the goal of this inspection program is to expand its presence to ensure continued mitigation of the spread of COVID-19 and preparation for future variants of the SARS-CoV-2 virus, and to protect the health and safety of healthcare workers at heightened risk for contracting the virus.  New Assistant Secretary of Labor for OSHA Doug Parker stated:

“We are using available tools while we finalize a healthcare standard….  We want to be ahead of any future events in healthcare.”

OSHA plans to conduct as many as 1,000-1,500 inspections in the next 90 days to determine whether hospital and other healthcare workers are being adequately protected from COVID-19 spread at work.  The inspections will last 2-4 days and will focus on what had been the major elements of OSHA’s COVID-19 Emergency Temporary Standard for Healthcare.  The OSHA resources designated for this enforcement blitz and the revised COVID-19 National Emphasis Program (NEP) will comprise at least 15% of OSHA’s enforcement activity for the year.

Who is Covered by the Enforcement Effort?

The initiative supplements OSHA’s targeted enforcement under the Revised COVID-19 NEP [DIR 2021-03 (CPL 03)], by conducting focused, partial follow-up and monitoring inspections of previously inspected or investigated hospitals and skilled nursing care facilities within four North American Industry Classification System (NAICS) codes listed in the enforcement memorandum, where COVID-19 citations or Hazard Alert Letters were issued, including remote-only inspections where COVID-19-related citations were issued.  Specifically, facilities in the four NAICS codes listed below may be selected for inspections under the initiative if they meet one of the following criteria: Continue reading

[WEBINAR] OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement

On Thursday, February 10, 2022 at 1 p.m. EST, join Eric J. Conn, Kate McMahon, Aaron Gelb and Amanda Strainis-Walker for a webinar regarding OSHA’s COVID-19 Emergency and Permanent Standards and Enforcement.

As US employers grapple with the latest surge of COVID-19 cases from the Omicron variant, they are also left to grapple with uncertainty following the Supreme Court’s decision to reinstitute a Stay of OSHA’s Vaccinate-or-Test ETS. Will we see another COVID-19 emergency rule that tries to navigate the guardrails set by the Supreme Court? Will OSHA return to aggressive enforcement under the OSH Act’s General Duty Clause? What is expected from employers on the COVID-19 front to avoid OSHA enforcement?

During this webinar, attorneys from CMC’s COVID-19 Task Force will provide a detailed analysis of OSHA’s regulatory and enforcement landscape post-Supreme Court. Specifically, we will address these important questions raised by the latest developments on the COVID-19 front: Continue reading

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

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’s 2021 Year in Review and 2022 Forecast [Webinar Recording]

On January 12, 2022, the Partners in Conn Maciel Carey’s national OSHA Practice Group on presented the kickoff event in Conn Maciel Carey’s 2022 OSHA Webinar series.  This first program of the year, as is tradition, was OSHA’s 2021 Year in Review and 2022 Forecast.

As we kickoff Year 2 of the Biden Administration, it is time to look back and take stock of what we learned from and about OSHA during the very eventful year that just concluded.  And more importantly, it is time to look ahead and assess what to expect from OSHA now that OSHA’s full senior leadership team is in place and ready to put its stamp on the agency.

In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group reviewed OSHA enforcement, rulemaking, and personnel developments from 2021. We also discussed the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned about: Continue reading

[Webinar] OSHA’s 2021 Year in Review and 2022 Forecast

Join the Partners in Conn Maciel Carey’s national OSHA Practice Group on Wednesday, January 12, 2022 at 1:00 p.m. ET, for the kickoff event in Conn Maciel Carey’s 2022 OSHA Webinar series.  This first program of the year, as is tradition, will be OSHA’s 2021 Year in Review and 2022 Forecast.

As we kickoff Year 2 of the Biden Administration, it is time to look back and take stock of what we learned from and about OSHA during the very eventful year that just concluded.  And more importantly, it is time to look ahead and assess what to expect from OSHA now that OSHA’s full senior leadership team is in place and ready to put its stamp on the agency.

In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement, rulemaking, and personnel developments from 2021. We will also discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar will learn about: Continue reading

Update on OSHA’s COVID Emergency Rule for Healthcare – And How It Affects the Vaccinate-or-Test ETS

By Conn Maciel Carey’s COVID-19 Task Force

Last week, on December 27th, OSHA announced the withdrawal of most of its COVID-19 ETS for Healthcare, which was the first of the two COVID-19 emergency temporary standards OSHA issued in the first year of the Biden Administration.

This Healthcare ETS was issued back in June 2021 in response to President Biden’s Day 1 OSHA Executive Order.  Recall that this was the ETS that had been crafted by OSHA to apply to all employers in all industries, but as it was being finalized in late Spring, when it looked like we might just be approaching the end of the pandemic, the Administration decided to narrow the scope to just the healthcare industry.  That ETS was what we call a “programmatic” standard; requiring the development of a comprehensive COVID-19 prevention program, complete with an array of required engineering and administrative controls.  When the Healthcare ETS was issued, OSHA noted on its webpage for the ETS that it expected the ETS to be in effect for six months from the date of publication — until December 21, 2021.

December 21st came and went without any word from OSHA.  But on Monday of last week, , six days after the Healthcare ETS’s six-month anniversary, OSHA issued a statement that:

“[while OSHA] intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking[,]” it is “withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions … remain in effect.”

Here is the full statement posted on OSHA’s Healthcare ETS webpage:

Why Did OSHA Withdraw Portions of the Healthcare ETS? Continue reading

Fed OSHA Updates Its COVID-19 Workplace Guidance – Realigns with CDC on Masks for Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As we predicted a few week ago, following in CDC’s footsteps, on Friday of last week (August 13, 2021), OSHA updated its primary COVID-19 guidance for non-healthcare employers – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to embraces CDC’s updated mask recommendations for vaccinated individuals from July 27th.  OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Tracker, which depicts levels of county-level community transmission (low, moderate, substantial, or high).

Broadly, OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely.  For example, OSHA now recommends that:

    • Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
    • Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.

Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

What Changed in OSHA’s Updated COVID-19 Guidance? Continue reading

Cal/OSHA’S New Budget Raises Questions About The Future of Enforcement

By Fred Walter

Governor Newsom has announced his proposed budget for 2020-2021 and it has some good news and some bad for Cal/OSHA. Under the Governor’s proposal, Cal/OSHA’s overall budget will increase by $12,107,000, or just over 8% to $168,661,000.Cal-OSHA Budget (002)

This will be split between the three arms of Cal/OSHA. The budget for the Standards Board, which adopts regulations, is slated to increase to $3,946,000. The Appeals Board, which hears appeals of citations, is expected to get $6,706,000. But the Division of Occupational Safety and Health (DOSH) is by far the elephant in the room. Its current budget of $146,743,000 is 24 times that of the Appeals Board and 41 times that of the Standards Board. Its budget for 2021 will be $158,009,000.

The largest piece of the DOSH pie (33%) will go to the Elevator Unit. Consultation, PSM, and the Pressure Vessel Unit each will receive an 8% increase while Mining and Tunneling will get 9%.

But here is where it gets weird. Continue reading

OSHA’s 2020 in Review and 2021 Forecast [Webinar Recording]

On January 14, 2020, the Partners in Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group presented a webinar regarding Annual OSHA Update: 2020 In-Review and 2021 Forecast.

The ball has dropped, the confetti has been swept out of Times Square, and 2020 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, it is time to look ahead and assess what to expect from OSHA during the new year, and the start of a new Presidential term (either the 2nd Term of President Trump or new Administration under former Vice President Joe Biden). In this webinar, the Chair of Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement, rulemaking, and leadership developments from 2020, and will discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned the following: Continue reading

[Webinar] OSHA’s 2020 in Review and 2021 Forecast

On Thursday, January 14th at 1:00 PM ET, plan to join the Partners in Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group for a webinar regarding Annual OSHA Update: 2020 In-Review and 2021 Forecast.

The ball has dropped, the confetti has been swept out of Times Square, and 2020 is in the books. It’s time to look back and take stock of what we learned from and about OSHA over the past year. More importantly, it is time to look ahead and assess what to expect from OSHA during the new year, and the start of a new Presidential term (either the 2nd Term of President Trump or new Administration under former Vice President Joe Biden). In this webinar, the Chair of Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement, rulemaking, and leadership developments from 2020, and will discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar will learn the following: Continue reading

Announcing Conn Maciel Carey’s 2021 OSHA Webinar Series

ANNOUNCING CONN MACIEL CAREY’S
2021 OSHA WEBINAR SERIES

As the Trump Administration hands over the keys to President-Elect Biden and a new Democratic Administration, OSHA’s enforcement and regulatory landscape is set to change in dramatic ways, from shifting enforcement priorities, budgets and policies, to efforts to reignite OSHA’s rulemaking apparatus. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, handled COVID-19 enforcement with a light touch, pumped the brakes on almost all rulemaking in general, and declined to issue an emergency COVID-19 standard in particular, the pendulum swing at OSHA is likely to be more pronounced than during past transitions. Accordingly, it is more important now than ever before to pay attention to OSHA developments.

Conn Maciel Carey’s complimentary 2021 OSHA Webinar Series, which includes (at least) monthly programs put on by the attorneys in the firm’s national OSHA Practice, is designed to give employers insight into developments at OSHA during this period of flux and unpredictability.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual OSHA Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 OSHA Webinar Series – Program Schedule

OSHA’s 2020 in Review
and 2021
Forecast

Thursday, January 14th

Respiratory Protection Rules –
Top 5 Risks and Mistakes

Wednesday, May 12th

Cal/OSHA’s COVID-19
Emergency Temporary Standard

Tuesday, January 26th

What to Expect from DOL Under
a Biden Administration

Wednesday, June 16th

What Employers Need to Know
About the COVID-19 Vaccine

Thursday, February 11th

Mid-Year Review of OSHA Developments

Thursday, July 22nd

COVID-19 Vaccine Distribution and Administration: OSHA Considerations

Thursday, February 18th

OSHA VPP and other Cooperative Programs

Tuesday, August 24th

Update About the
Chemical Safety Board

Tuesday, March 16th

Update about OSHA’s Electronic Recordkeeping Rule

Wednesday, September 8th

Annual Cal/OSHA Enforcement
and Regulatory Update

Tuesday, March 23rd

OSHA Issues During
Acquisitions and Divestitures

Thursday, October 7th

COVID-19 OSHA Enforcement
and Regulatory Update

Wednesday, April 20th

Updates about OSHA’s PSM
Standard EPA’s RMP Rule

Tuesday, November 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.

Continue reading

[Webinar Recording] Michigan OSHA’s New COVID-19 Emergency Rule

On October 29, 2020, Eric J. Conn, Aaron R. Gelb and Ashley D. Mitchell presented a bonus webinar event: Michigan OSHA’s New COVID-19 Emergency Rule.

When the MI Supreme Court struck down Gov. Whitmer’s COVID-19 Executive Orders, MI OSHA responded quickly to fill the void, and last week issued a series of COVID-19 Emergency Regulations. When Gov. Whitmer signed the “Emergency Rules Order,” Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulations. While many of the requirements set forth in the new rules mirror the Governor’s prior EOs, having a prescriptive rule in place makes it that much easier for MI OSHA to issue citations to employers.

Given MI OSHA’s aggressive use of the General Duty Clause to support a series of citations after an inspection blitz over the summer, Michigan employers should expect enforcement to continue in a similar manner, making compliance with these rules all the more important.  Participants in this webinar learned about the requirements of MIOSHA’s COVID-19 emergency rules and steps to take to avoid citations, including:

Continue reading

Announcing Conn Maciel Carey’s 2020 OSHA Webinar Series

We are three years into the Trump Administration, and we have seen a mixed bag of change and business as usual at OSHA in enforcement and rulemaking. We watched late Obama-era OSHA rules get repealed, delayed, or amended and a modest boost in compliance assistance—the sort of policy shifts you expect to see in a transition from a Democratic to a Republican Administration. However, we have seen plenty of the unexpected, such as increases in virtually every enforcement metric, including record numbers of $100K+ enforcement actions. And most surprising of all, OSHA still does not have an Assistant Secretary—the longest ever vacancy for the top job at OSHA—and it seems highly likely the Agency will remain without a Senate-approved leader for the entirety of this presidential term. As we move into an election year, the final year of President Trump’s current term, we expect more reshuffling of OSHA enforcement policies and rulemaking priorities, and surely more surprises, so it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2020 OSHA Webinar Series includes monthly webinars presented by OSHA-specialist attorneys in the firm’s national OSHA Practice designed to give employers insight into developments at OSHA during this remarkable time in OSHA’s history. 

To register for an individual webinar, use the registration links in the program descriptions below. To register for the entire 2020 Series, click here to send an email request, and we will register you. If you miss a program this year or missed any in prior years, click here for our webinar archive.

We are exploring CLE approval for this series.  If you are interested in CLE or other forms of Continuing Education credits, click here to complete a survey.

OSHA’s 2019 in Review
and 2020 Forecast

Thursday, January 23rd

All You Need to Know About
OSHA’s General Duty Clause

Thursday, July 23rd

OSHA Settlement
Tips And Strategies

Tuesday, February 25th

Employee Discipline – OSHA
and Labor & Employment Issues

Wednesday, August 19th

Strategies for Responding to Whistleblower Complaints

Wednesday, March 25th

Privileged Audits and Investigations and OSHA’s Self-Audit Policy

Tuesday, September 22nd

Annual Cal/OSHA Update

Thursday, April 16th

Impact of the Election on OSHA

Thursday, October 22nd

E-Recordkeeping and
Injury
Reporting Update

Wednesday, May 20th

Updates about OSHA’s PSM
Standard and EPA’s RMP Rule

Tuesday, November 17th

OSHA’s PPE Standards –
Top 5 Risks and Mistakes

Tuesday, June 16th

Impact of America’s Aging Workforce on OSHA and Employment Law

Wednesday, December 16th

See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.
Continue reading

OSHA’s New Site-Specific Targeting Enforcement Program [Webinar Recording]

On March 19, 2019 Amanda Walker, Aaron Gelb and Dan Deacon of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “OSHA’s New Site-Specific Targeting Enforcement Program.

More than two years after OSHA published the E-Recordkeeping Rule, the agency finally revealed some of its plans for how it will utilize employers’ 300A injury data collected under the new Rule.  In late October 2018, OSHA launched its new Site-Specific Targeting Enforcement Program, which outlines how the agency will select non-construction establishments for programmed inspection. OSHA will create targeted inspection lists based on employers’ higher than average Days Way, Restricted or Transfer (“DART”) injury rates. OSHA will also include a random sample of establishments with lower than expected injury rates for quality control. Thus, all employers covered by OSHA’s E-Recordkeeping Rule may be subject to an SST inspection.

Participants in this webinar learned: Continue reading

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

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

OSHA’s 2017 in Review and a 2018 Forecast [Webinar Recording]

On January 16, 2018 Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding: “OSHA’s 2017 in Review and a 2018 Forecast.

The ball has dropped, the confetti has been swept out of Times Square, and 2017 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, the question on everyone’s mind (well, maybe just OSHA nerds like us), is what can we expect from OSHA in the first full year of the Trump Administration?

In this webinar event, attorneys from the national OSHA Practice Group at Conn Maciel Carey reviewed OSHA enforcement, rulemaking, and other developments from 2017, and discussed the Top 10 OSHA Issues employers should monitor and prepare for in the New Year.  During this webinar, participants learned:

  • 2017 OSHA enforcement data and trends, and the future of OSHA enforcement
  • The Top 10 OSHA issues employers should track in 2018
  • Rulemaking and de-regulatory developments and predictions
  • Status/future of the roll-out of Pres. Trump’s De-Regulatory Agenda
  • Other significant OSHA policy issues to track in the New Year

Click here to to view a recording of the webinar. Continue reading

OSHA 2015 in Review and a Forecast 5 Key OSHA Issues to Monitor in 2016 [Webinar Recording]

On January, 21, 2016, members of Conn Maciel Carey’s national OSHA Practice Group delivered a webinar regarding “OSHA 2015 in Review and a Forecast 5 Key OSHA Issues to Monitor in 2016.”

The ball has dropped, the confetti has been swept out of Times Square, and 2015 is in the books.  It’s time to look back at the year and take stock of what we learned from and about OSHA over the past year. More importantly, the question on everyone’s mind (well, maybe just ours), is what can we expect from OSHA in this final year of the Obama Administration?  This webinar event reviewed enforcement and rulemaking issues from 2015, and identified the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

Topics covered included: Continue reading