OSHA Inspections

BREAKING: OSHA Issues Final Worker Walkaround Representative Designation Process Rule

Eric J. Conn Leave a comment

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 Launches Regional Emphasis Program Focused on Storage Tank Cleaning Operations

Eric J. Conn Leave a comment

By Aaron R. Gelb

On August 2, 2021, OSHA announced a new Regional Emphasis Program (“REP”) focused on transportation tank cleaning operations in the rail and truck shipping industries.  This is the second REP launched in Region 5 in less than a month; on June 14, 2021, OSHA commenced an REP to address hazardous noise levels in the Midwest. Employers who perform tank cleaning operations in Region 5, which covers Illinois, Ohio, Wisconsin, Michigan, Minnesota and Indiana, 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 Tank Cleaning Operations?

In the REP and accompanying press release, OSHA places a special emphasis on the dangers posed by the exposure to toxic fumes from cleaning chemicals or stored products that can build up inside a storage tank, as well as risks of fire or explosion when a worker must handle volatile materials in confined spaces.  Additionally, OSHA warns that the workers cleaning these tanks may “face many serious and potentially deadly hazards caused by toxic fumes from chemicals, decaying crops, waste and other substances that can expose workers to suffocation, fires and explosions.” OSHA also highlighted several fatal accidents that occurred in the Midwest, noting that Region 5 has investigated 23 worker deaths and 97 incidents in the transportation and tank cleaning industries since 2016.  According to OSHA, the hazards most often found during these inspections involved the failure to prevent the inhalation of harmful substances and to follow procedures for permit-required confined space requirements.

Which Employers Will Be Targeted? Continue reading →

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

Eric J. Conn Leave a comment

We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking.  We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases.  And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.

As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.

2019 OSHA Webinar Series – Program Schedule
OSHA Year in Review & 2019 Forecast

Tuesday, January 15th
Tips to Survive an OSHA Inspection

Tuesday, July 23rd
Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th
Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th
OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th
OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th
Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th
What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd
New Cal/OSHA Enforcement Issues

Tuesday, May 28th
 OSHA PSM and EPA RMP Update

Tuesday, November 19th
The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th
Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th
See below for descriptions of the webinars and registration links Continue reading →

3 Rights Employers Should Understand and Assert During OSHA Inspections

Eric J. Conn Leave a comment

By Eric J. Conn and Lindsay A. Smith

OSHA has broad authority to conduct workplace enforcement inspections, and such enforcement efforts have reached record levels under the Obama Administration. OSHA gathers virtually all of the evidence it needs to substantiate a citation during inspections. Accordingly, it is essential that employers know and assert their rights during OSHA inspections. Below are three specific, important rights that Employers have during OSHA inspections.

1.  Insist on an Opening Conference

The Opening Conference is the most important stage of an OSHA inspection.  Employers have the right to an opening conference, and should always require that OSHA provide one before officially beginning an onsite inspection.  First, an Opening Conference is the employer’s last chance to avoid an inspection altogether. During the Opening Conference, OSHA must explain why your workplace is being inspected, and if there are holes in that explanation (e.g., incorrect application of an emphasis program, non-credible employee complaint, or a programmed inspection too soon after a prior inspection), Opening Conference Slideyou could convince OSHA that the inspection should not proceed. If the inspection will proceed, the Opening Conference is the time for employers to negotiate the scope of the inspection. For example, if OSHA is there because of an employee complaint, employers should negotiate with OSHA to limit the inspection to only the subject(s) of the complaint, and not consent to a wall-to-wall inspection. Employers can also establish ground rules for the inspection (e.g., require written document requests, arrange employee interviews in advance, and require a management escort for access to the facility).

Another benefit of asking lots of questions, engaging in meaningful negotiations over the scope of the inspection and explaining your ground rules, in addition to ensuring a smooth inspection, is that a long lasting Opening Conference will allow managers time to conduct a final walkthrough of the facility to address any low hanging fruit and advise the workforce of OSHA’s presence before the inspection starts in earnest.

2.  Accompany the CSHO at All Times

As part of an inspection, the CSHO will conduct a walkaround of the workplace. During the walkaround, a management representative should always Continue reading →

What Can Employers Do If OSHA Brings a Union Representative on an OSHA Inspection?

Eric J. Conn 1 Comment

By Eric J. Conn

Employers need to be aware of a new possibility that union representatives may attempt to accompany OSHA compliance officers during workplace inspections, including at workplaces where the union has not been elected to represent the employees.

29 U.S.C. § 657(e) of the OSH Act authorizes a “representative of the employer and a representative authorized by [the employer’s] employees” to accompany the OSHA agent during an inspection of the workplace. The OSH Act specifies that the purpose of including these representatives is to help OSHA conduct an effective workplace safety inspection. However, OSHA’s implementing regulations, specifically 29 C.F.R. § 1903.8(c), require that the employees’ representative must himself be an employee of the employer, unless the individual participation is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The regulation focuses on Union 1the third party’s technical expertise by listing “industrial hygienist [and] a safety engineer” as examples of non-employee representatives who may qualify under 29 C.F.R. § 1903.8(c).

On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) ignoring the language of 29 C.F.R. § 1903.8(c) and expressly permitting employees at a worksite without a collective bargaining agreement to designate a union representative as their personal representative during an OSHA inspection. The Interpretation Letter not only flies in the face of the plain meaning of 29 C.F.R. § 1903.8(c), but it also contradicts:

  • The OSH Review Commission’s Rules of Procedure;
  • the National Labor Relation Act (NLRA); and
  • OSHA’s Field Operations Manual (FOM).

Section 9 of the NLRA explains that only a union selected by a majority of employees for the purposes of collective bargaining can be considered an authorized employee representative. Continue reading →

To Demand an OSHA Inspection Warrant or Not – That is the Question

Eric J. Conn 3 Comments

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice

Perhaps the most common question I am asked about OSHA inspections is:

When does it make sense (if ever) for an employer to demand an administrative warrant before permitting an OSHA compliance officer to proceed with a safety and health inspection?

First, it is important to understand that the Fourth Am. of the U.S. Constitution does protect employers from unreasonable searches and seizures in the Warrant Imageworkplace just as it protects us all from such searches in our homes and vehicles.  That means that without the employer’s consent, OSHA may not proceed with an inspection at the workplace without an administrative inspection warrant (or the presence of an imminent hazard).

However, as an administrative warrant, the standard that applies to OSHA’s application for a warrant is much lower than when the police request a warrant to inspect your home.  Rather than demonstrating to the court criminal probable cause, OSHA need only show that there is administrative probable cause that a violative condition will be found in your workplace.  On top of the lower burden that OSHA must show, the Agency gets a pretty health dose of deference from the Courts.  All of that is to say, successfully challenging a warrant is steep uphill battle.  That is not to say, however, that there are not good reasons to demand an inspection warrant.

We generally recommend that employers consent to OSHA inspections, but only after negotiating a reasonable scope to the inspection.  Although the notion that OSHA will be denied a warrant or that an employer will successfully quash a warrant is usually a long shot, the threat of demanding or challenging a warrant does still give employers some leverage at the start of an OSHA inspection to negotiate with the compliance officer or the Area Office about the proper Continue reading →