REMINDER: Feb. 1st Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work Related Injuries: 5 Common Mistakes Employers Make

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.

By February 1st every year, however, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading

[Webinar] Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review

On Tuesday, January 15, 2019 at 1 PM Eastern, join the Partners of Conn Maciel Carey’s national OSHA Practice Group for a complimentary webinar: “OSHA’s 2018 in Review and 2019 Forecast.” 

The ball has dropped, the confetti has been swept out of Times Square, and 2018 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 to what we can expect from OSHA as we transition to the out years of President Trump’s first term.  This webinar will review OSHA enforcement, rulemaking, and other developments from 2018, and will discuss the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants will learn: Continue reading

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

By Andrew Sommer, Megan Shaked, and Dan Deacon

As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).

When federal OSHA promulgated the Rule in 2016, E-Recordkeeping Ruleit built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication.  Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration.  As a result, numerous State OSH programs failed to initially adopt the rule.  After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.

Delinquent State Plans Began Adopting E-Recordkeeping

In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon.  While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (Wy OSHA); and
  • Vermont (VOSHA)

Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction.  Specifically, on April 30, 2018, federal OSHA issued a Continue reading

OSHA’s New Site-Specific Targeting Inspection Initiative

By Dan C. Deacon and Eric J. Conn

After years of wondering how OSHA could possibly manage and use data collected under the 2016 E-Recordkeeping Rule, the agency has finally revealed its hand.  Last month, OSHA launched its Site-Specific Targeting 2016 (“SST-16”) inspection plan, which outlines the agency’s strategy to target establishments for inspection based on the 300A data collected by OSHA under its Final Rule to Improve Tracking of Workplace Injuries and Illness (i.e.  the “E-Recordkeeping Rule”).

What is OSHA’s SST-16 Inspection Plan?

The SST-16 Inspection Plan is OSHA’s site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees.  The Plan is based on the calendar year 2016 300A injury and illness summary data that employers submitted to OSHA via OSHA’s Injury Tracking Application (aka, the E-Recordkeeping Portal) in December 2017.

Employers should not be surprised by OSHA’s site-specific targeting plan, as this is not a novel program for OSHA. SST was the grandfather of all OSHA enforcement emphasis programs.  Prior to 2014, SST programs used injury and illness information collected under the former OSHA Data Initiative to target the agency’s inspection resources.

OSHA believes the SST Program is “program helps OSHA achieve its goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.

The SST-16 Plan selects individual establishments for inspection based on their CY 2016 300A injury data submitted under the E-Recordkeeping Rule.  OSHA has created a software that will generate a list of targeted establishments for enforcement from this pool of data.  The targeted establishments will be those with Continue reading

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

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

[Webinar] OSHA and the ADA: How Two Labor Laws Align and Diverge

On Tuesday, December 4, 2018 at 1 PM Eastern, join Jordan B. Schwartz and Lindsay A. DiSalvo of the law firm Conn Maciel Carey for a complimentary webinar: “OSHA and the ADA: How Two Labor Laws Align and Diverge.”

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers.  This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard.  It is important to understand the law in this context, especially due to America’s aging workforce.

The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

​During this webinar, participants will learn: Continue reading

Process Safety Update: The Latest with OSHA’s PSM Standard & EPA’s RMP Rule [Webinar Recording]

Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical manufacturing processes. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like the second wave of Refinery PSM NEP inspections) to rulemaking and interpretation letters to overhaul OSHA’s PSM and EPA’s RMP regulatory landscape.

Then President Trump took office with a de-regulatory agenda.  Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?

This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, and other major safety and health related developments rolling out in the early stages of the Trump Administration.

Continue reading

Key Takeaways from the Inaugural Process Safety Summit in Washington, DC

Key Takeaways from the Inaugural
Process Safety Summit in Washington, DC

By the national OSHA Practice at Conn Maciel Carey LLP

The Inaugural Process Safety Summit in Washington, DC on October 23, 2018 was a huge success.  The event allowed the more than 160 safety and legal representatives from the petroleum refining, chemical manufacturing, paper manufacturing, and fertilizer industries to hear from and share with senior federal government officials from OSHA, EPA and the Chemical Safety Board, both through interactive panel discussions and breakout roundtable discussions.  The agency panels and facilitated discussions covered topics ranging from enforcement under the Trump Administration, to the status of OSHA’s PSM and RMP Rulemakings, candid debates about major issues in dispute in recent PSM and RMP case, and practical discussions about how to prepare for the next round of inspections under OSHA’s new PSM National Emphasis Program and how to comply with RMP in the wake of the new Amendments and the imminent Rescission Rule.

Introduction

The day began with welcome remarks from Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice.  Eric set two themes for the Summit:

  1. the importance of candid discussions between regulators and the regulated community; and
  2. the near-term risk of agencies working to upend the historical performance-oriented paradigm of the process safety regulatory framework.

Too often, OSHA and EPA representatives complain that Industry “can make up the rules as it goes along.” – Tweet from David Michaels, Former Assistant Secretary of Labor for OSHA.

Statements like that imply a haphazard approach to process safety that it is not reflected by the diligent work of refiners and manufacturers across the country.  Our experience shows a much different take on process safety.  We hear about all of the ways that process safety is evolving, much more often on Industry’s own initiative than in response to a regulatory action.  We watch how lessons are being learned and applied from incidents and experience.  We see how much time is spent trying to anticipate the kinds of issues that could cause a process safety incident.  And we feel a regulatory backlash, when process safety problems are most often found in outliers or with operations not even covered by OSHA’s or EPA’s process safety regulations.

More importantly, remarks about Industry making up the rules as it goes along also reflect a flawed belief by regulators that Continue reading

In the Wake of Criticism of the E-Recordkeeping Anti-Retaliation Rule, OSHA Issues New “Guidance”

By Eric J. Conn and Beeta B. Lashkari

On May 11, 2016, OSHA published its Final Rule for injury and illness recordkeeping electronic data submissions — what we refer to as the E-Recordkeeping Rule. The rule fundamentally changed OSHA’s long-standing injury and illness recordkeeping program by requiring injury and illness data to be proactively shared with OSHA, which intended originally (and still, but after some delay) to publicize the data for all the world to see. The 2016 E-Recordkeeping Rule required:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only.

In addition to the electronic data submission requirements, the E-Recordkeeping also introduced (out of left field) some new anti-retaliation restrictions that were intended to eliminate employer policies that may discourage employees from reporting injuries, purportedly for the nefarious purpose of reducing the numbers of injuries the employer has to share with OSHA.  These anti-retaliation provisions included very generic, vague language, but through a series of memos, interpretation letters, and other guidance, we have learned that the anti-retaliation elements primarily restrict employers’ use of safety incentive programs (prizes for injury-free work), post-incident drug testing, executive compensation and bonuses, and post-incident discipline.  Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the Preamble to the Final Rule.  For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.

Since promulgation in May 2016, implementation of all aspects of the Rule has been mired in difficulty.  Continue reading

All You Never Wanted to Know about OSHA Repeat, Willful & Egregious Violations [Webinar Recording]

On October 16, 2018, Eric J. Conn and Amanda R. Walker of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Everything You Never Wanted to Know about OSHA Repeat, Willful and Egregious Violations.” 

During the Obama Era, OSHA sharpened its enforcement teeth considerably by rewriting policies to characterize more violations as repeat and willful, and by significantly increasing its civil penalty authority. Now, OSHA violations characterized as Repeat or Willful carry penalties up to approx. $126,000 each. But what are Repeat and Willful violations? And what are these “Egregious” (or per-instance) citations OSHA has been issuing more and more often that lead to multi-million dollar enforcement actions?

This webinar covered the legal standard for Repeat, Willful and Egregious violations, the circumstances most often associated with them, the consequences for receiving them, and how OSHA’s enforcement policies have resulted in significant increases in the frequency with which we see them.

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

Delinquent State OSH Plans, Particularly Cal/OSHA, Catch-up with Fed OSHA’s E-Recordkeeping Rule

By Eric J. Conn and Dan C. Deacon

When fed OSHA promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by fed OSHA.  Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from fed OSHA under the new Trump Administration.

Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule.  Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018.  And that is when fed OSHA started to speak up.

OSHA’s April 30, 2018 Press Release

On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule.  In the press release, OSHA states that it had determined that:

Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”

State Plan State Responses

The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive Continue reading

Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule [Webinar Recording]

On September 18, 2018, Micah Smith and Dan Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar: “Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule.” 

Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers.  In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule.  The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.

Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.

Participants in this webinar learned:

Continue reading

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tues., Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.


Agenda

1:00 PM – Registration and Networking
1:30 PM – OSHA Panel
  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading

OSHA’s Policy of Public Shaming: Status and Future under the Trump Admin. [Webinar Recording]

On August 21, 2018, Eric J. Conn and Aaron R. Gelb of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “OSHA’s Policies of Public Shaming: the Status under the Trump Admin. and the Future.

As a small budget agency, OSHA has long looked for policies that will leverage individual enforcement actions to have the greatest impact on Industry.  That is the origin of OSHA’s controversial policy of “Regulation by Shaming.”  During the Obama Administration, employer shaming became a significant enforcement tool and came in many forms, from increasing use of enforcement press releases that included embarrassing and inflammatory quotations about employers, to maintaining a public bad actors list in connection with the Severe Violator Enforcement Program, and the pièce de résistance – publishing a Rule by which OSHA will collect and publish employers’ injury and illness data and details about fatalities.

The Trump Administration has signaled it will take a different approach to public shaming, but at the very least, the vestiges of these policies still remain, and some Administration actions suggest they are here to stay.

During this webinar, participants learned about:

Continue reading

OSHA Announces Proposed Changes to its Controversial E-Recordkeeping Rule — Industry Comments Are Needed

By the OSHA Practice at Conn Maciel Carey LLP

After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump Administration, OSHA has taken a step (hopefully just the first step) to pare down the E-Recordkeeping Rule.  Specifically, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule.  While the proposed change will undoubtedly be welcomed by Industry, the scope of the proposed change, however, does not address most of the fundamental concerns employers have repeatedly raised about the controversial rule.

The Proposed Rule includes only one significant change to the current regulation.  The proposal seeks to eliminate the requirement for the largest employers, those with establishments with 250 or more employees, to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses via OSHA’s new online web portal.  However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data via OSHA’s electronic portal.

Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the proposed rule does not disturb in any manner the highly controversial “anti-retaliation” provisions, or the interpretations of those provisions included in the 2016 final rule preamble.  In addition to establishing requirements for electronic submission of injury and illness recordkeeping data, the 2016 E-Recordkeeping Rule endeavored to restrict employers’ rights to adopt employee injury reporting policies and expanded OSHA’s enforcement authority by introducing a vague new set of “anti-retaliation” provisions.

Particularly controversial was the Continue reading

Inaugural Process Safety Summit in Washington, DC – October 22-23, 2018

Attend the Inaugural Process Safety Summit in Washington, DC on October 22-23, 2018, presented by Conn Maciel Carey LLP and sponsored by the American Fuel and Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API).

What is the Process Safety Summit in Washington, DC?

The Process Safety Summit in Washington, DC will be an annual event featuring a full-day program in Washington, DC gathering interested stakeholders from the chemical, petrochemical, and petroleum refining industries, and other industries with operations impacted by OSHA’s PSM Standard and EPA’s RMP Rule.

The focus of the Process Safety Summit in Washington, DC will be on the process safety regulatory landscape.  The full-day Program will cover the PSM/RMP rulemakings, enforcement programs, significant cases, trends through the transition to the new Administration, best practices, and other key process safety regulatory issues impacting Industry.

This Process Safety Summit fills an important gap in Washington, DC.  Although there are opportunities for trade groups and employers to interact with key government regulators, none of those opportunities focus on process safety, and the process safety-oriented events that do exist are far from Washington, DC, making it hard to attract more than one senior agency official.

The format and agenda will include Continue reading

The Due Date for Round 2 of Injury Data Submissions under OSHA’s E-Recordkeeping Rule is Upon Us

The July 1, 2018 deadline for large employers (250+ employees at a single work site) and smaller employers (20-249 employees) in certain so-called “high hazard industries” to submit injury and illness data to OSHA is less than a week away.  We have been tracking closely the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, it appears that this deadline for the second data submission under the rule is going to stand.

Therefore, if employers have not already done so, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application (the portal that will receive the injury data), and submit covered injury data (i.e., their 2017 OSHA 300A Annual Summary data) by this Sunday.

For a last-minute primer on the nuances of OSHA’s E-Recordkeeping Rule, check out this blog article from Intelex, a compliance software development resource.  Here is the opening excerpt from the article:

“Mandatory submission of injury and illness data to OSHA through a dedicated Web-based portal should, in theory, make the process quick and easy. However, a recent spate of real and proposed changes to the agency’s E-Recordkeeping Rule has left many employers wondering if they are required to submit injury and illness data for certain establishments, by when they must do it, and what the consequences are of not submitting the data.

The latest in Conn Maciel Carey LLP’s OSHA webinar series addressed these topics and provided some much-needed clarity for employers.”

Continue reading

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 2 of 2 – Five Common LOTO Mistakes)

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) (LOTO) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article lays out:

  • [Part 1]: 5 reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
  • [Part 2]: 5 common mistakes employers make implementing LOTO requirements.

Part 1 Summary: Five Reasons it is Critical to Get LOTO Right

As we discussed in Part 1 of this two-part article, there are five important OSHA enforcement reasons why it is vital for employers to truly grasp OSHA’s regulatory requirements for lockout/tagout (LOTO) and implement them.

Those 5 reasons are:

  1. Amputation Injuries Create Special Reporting Obligations
  2. LOTO Citations are Low Hanging Fruit for OSHA
  3. OSHA is Actively Pursuing LOTO Violations with a National Emphasis Program
  4. LOTO Violations Qualify for the Severe Violator Enforcement Program
  5. LOTO Violations are Among the Most Used for OSH Act Criminal Prosecutions

For a detailed discussion about those reasons, check out Part 1 of this two-part article.

Part 2: Five Common LOTO Mistakes

This part details the five most common mistakes and misunderstandings associated with OSHA’s regulatory requirements for LOTO.

     1. Confusion about When the LOTO Standard Applies

Normal production operations are not covered by the LOTO standard.  Rather, the requirements of OSHA’s LOTO standard kick in during servicing and/or maintenance, or any production activity that requires an employee to remove or bypass a guard or other safety device, or if an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is performed upon the material being processed.  Otherwise, the employer is expected to install and maintain appropriate guards that protect employees as required by 1910.212, OSHA’s machine guarding standard.

While the LOTO and machine guarding standards tend to complement each other—one protects employees during normal production operations (guarding), while the other protects employees during servicing or maintenance (LOTO).  Technically, OSHA may not cite the Continue reading

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 1 of 2 – Five Reasons to Get LOTO Right)

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article will lay out:

  • [Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
  • [Part 2]: Five common mistakes employers make when implementing the LOTO requirements.

Part 1: Why it is Critical for Employers to Get LOTO Right

The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.

Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized.  Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled.  The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.

OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.”  OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.

While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.

    1.  Amputation Injuries Create Special Reporting Obligations

Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA.  Continue reading

Joint and Multi-Employer, Independent Contractor, and Temp Labor OSHA and Employment Issues [Webinar Recording]

On June 5, 2018, Jordan B. Schwartz, Eric J. Conn, and Lindsay A. DiSalvo of Conn Maciel Carey, presented a webinar regarding “Joint and Multi-Employer, Independent Contractor, and Temp Labor OSHA and Employment Law Issues.

Employers’ perceptions about their legal responsibilities for certain workers is not always reality, particularly in the context of oft-changing interpretations of what constitutes an employer-employee relationship. An employer may classify workers as a temp or independent contractor, but that does not mean DOL agrees. At the tail end of the Obama Admin.,  DOL issued guidance that a majority of workers should be treated as employees, insinuating that in most cases, employers are accountable for the obligations of an employer-employee relationship. However, the Trump Admin. appears is shifting gears. That guidance was withdrawn by new Sec. of Labor Acosta. Congress has also begun to undercut the broad joint-employer standard established by the NLRB in Browning-Ferris, by revisiting language in applicable laws. It remains essential for employers to carefully evaluate employment relationships and their own functions in the multi-employer context.

Even if there is no legal employer-employee relationship, companies may have safety obligations and liability depending on their role at multi-employer worksites or when using temporary workers. Protection of temporary workers was a priority of OSHA in the prior Admin., and the guidance developed in that context remains the current standard for host employers and staffing agencies. OSHA has also stood by its multi-employer policy, though it is being challenged in federal court.

Participants in this webinar learned about: Continue reading

Tug-of-War Between Fed OSHA and the State OSH Plans over the E-Recordkeeping Rule

By Eric J. Conn, Dan Deacon, and Beeta Lashkari

A fascinating jurisdictional tug-of-war has broken out between federal OSHA and a few fed OSHA approved State OSH Programs, in relation to OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule).  The E-Recordkeeping Rule requires large employers and smaller employees that operate in certain “high hazard industries” to proactively submit their electronic injury and illness data to OSHA through a special web portal – the Injury Tracking Application (“ITA”).

State Plan Adoption of OSHA’s E-Recordkeeping Rule

When fed OSHA promulgated the Rule in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because the State Plan states all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new fed OSHA rule.

Most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, ahead of the deadline to submit data the first year of the Rule, but as of the end of 2017, when employers’ 2016 300A data was due to be submitted, eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule.  Those states included:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (WY OSHA); and
  • Vermont (VOSHA).

The delay by these States has primarily been a result of fed OSHA’s numerous announcements that it will soon issue a Notice of Proposed Rulemaking to amend (or rescind) the federal E-Recordkeeping Rule.  The State Plans have been reluctant to invest the time and resources to implement their own versions of the rule, only to watch fed OSHA change it, causing the states to have to change their own rules again very soon.

Of those eight states, only Vermont has since finalized its E-Recordkeeping Rule this year, and the other seven remain delinquent in their obligation to adopt the Rule.

Last year, fed OSHA and those eight state plans apparently recognized that only employers in fed OSHA states or State Plan states that had already adopted the E-Recordkeeping rule were required to submit their 300A data to OSHA.  This year, however, fed OSHA spoke up about the delinquent states. Continue reading

Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

On May 15, 2018, Amanda Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “The Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule.

OSHA’s controversial Electronic Recordkeeping and Anti-Retaliation Rule was promulgated in May 2016.  Despite a barrage of negative comments during the rulemaking, multiple enforcement deferrals, and two legal challenges that have been stayed pending the Trump Administration’s re-evaluation of the Rule, all elements of the rule are currently in effect.  Indeed, last December, hundreds of thousands of workplaces, for the first time, submitted their injury and illness recordkeeping data to OSHA through its Injury Tracking Application (ITA) web portal.

The Trump Administration is ready to announce its future plans for the E-Recordkeeping Rule, signaling that it will publish a Notice of Proposed Rulemaking to revise (or potentially rescind) the Rule later this month.  However, the extent of the revisions to the rule remain unknown, and the timing is key as we approach July 1, 2018, the deadline for the second round of injury data submissions.

Participants in this webinar learned about: Continue reading

Conn Maciel Carey Adds Former Attorney-Investigator from the Chemical Safety Board to its OSHA Practice

Conn Maciel Carey LLP, a boutique law firm with national practices in workplace safety (OSHA and MSHA), labor & employment, and litigation, is pleased to announce that Beeta B. Lashkari has joined the firm as an attorney in its Washington, D.C. office.

Ms. Lashkari, a former attorney-investigator at the U.S. Chemical Safety and Hazard Investigation Board (CSB), will advise and represent clients in a wide-range of inspections, investigations, and enforcement actions, including those from the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency, the CSB, and state and local regulators. As one of only four attorney-investigators at the CSB, Ms. Lashkari was involved in several major investigations of chemical accidents.

“Beeta brings a unique array of experience and perspective that will enhance the safety and health law services we provide to employers across all industries, and particularly chemical and petrochemical manufacturers,” said Eric J. Conn, Chair of the firm’s national OSHA practice. “We’ve been busy this year expanding our firm, and Beeta is another superb addition to our already deep bench of OSH law experts.”

Ms. Lashkari will also support the firm’s labor and employment practice group in managing workplace investigations, including Continue reading

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

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

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

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

Participants in this webinar learned about: Continue reading