Fate of Obama-Era OSHA Regulations and Enforcement Policies Under the Trump Administration

By Eric J. Conn and Micah Smith

In the final days and weeks of the Obama Administration, OSHA promulgated several significant regulatory changes.  For example, after several decades, it finally completed its update to the Walking Working Surfaces Standard (the regulation covering slips, trips and falls).  It also published a controversial Electronic Injury Data Submission Rule, extended the statute of limitations for recordkeeping violations, added two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals.  To name a few.

But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”?  While some Obama-era OSHA regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promises for deregulation, most have remained untouched.  Indeed, when Scott Mugno, President Trump’s nominee for OSHA’s top job, recently announced his decision that he was withdrawing his name from consideration, the likelihood that OSHA would remain without a permanent, appointed leader for the entirety of President Trump’s term has increased dramatically, and conversely, without a captain steering the ship, the likelihood of OSHA carrying out the Trump Administration’s plan for major de-regulatory action has dramatically decreased.

Much more likely, OSHA will continue to operate over the course of the next year and a half of the Trump Administration as it has since shortly after his Inauguration – modest de-regulatory efforts to nibble around the edges of Obama-era regulations, but nothing close to the level of radical deregulation that had been advertised on the campaign trail and which we have seen at other agencies.  Thus, the “midnight” regulations promulgated at the tail end of the Obama Administration appear likely to remain largely intact. Continue reading

Fate of Midnight Obama-era OSHA Rules [Webinar Recording]

On June 18, 2019, Kate McMahon, Micah Smith, Dan Deacon, and Beeta Lashkari of Conn Maciel Carey‘s national OSHA Practice presented a webinar regarding the “Fate of Various Obama-era OSHA Rules.”

In the final days (and even hours) of the Obama Administration, OSHA promulgated several significant regulatory changes.  For example, after several decades, it updated the Walking Working Surfaces Standard (the regulation covering slips, trips and falls).  It also published a controversial Electronic Injury Data Submission Rule, two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals.  To name a few.

But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”?  While many agency regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promise for deregulation, others have remained untouched.  This webinar will review the status of these OSHA Rules and where they may be headed.

Participants in this webinar learned about:

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’s Slips, Trips and Falls Rule Gets a Facelift [Webinar Recording]

On February 8, 2017, Kate M. McMahon and Micah Smith, from Conn Maciel Carey’s national OSHA Practice Group, delivered a webinar entitled: “OSHA’s Slips, Trips and Falls Rule Gets a Facelift.”wws-cover-slide

Only a few decades in the making, OSHA has finally updated its Walking / Working Surfaces Standard, the regulation that governs slips, trips and fall hazards in general industry.  Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S.  The new final rule attempts to modernize OSHA’s regulations to prevent fall hazards based on advances in fall protection technologies and methods.

Participants in this webinar learned:
  • The new requirements for managing slip, trip and fall hazards in general industry
  • New criteria for fall protection equipment and ladder safety
  • Effective dates for the new Walking / Working Surfaces Standard
This was the second webinar in Conn Maciel Carey’s 2017 OSHA Webinar Series.  Plan to join us for the remaining complimentary monthly OSHA webinars. Continue reading

MSHA Announces Proposed Rule on Workplace Exams

By: Nicholas W. Scala

Last week, MSHA released its Proposed Rule for the Examinations of Working Places in Metal and Nonmetal Mines in the Federal Register, the Proposed Rule was formally published on June 8, 2016. The Proposed Rule addresses modifications to the current MSHA standards regarding Examinations of Working Places, 30 C.F.R. §56.18002 and §57.18002 (for underground M/NM mines).MSHA Rule

In the proposed rule, MSHA suggests modifications to the examination format and record keeping requirements of the existing standards.  Under the existing workplace exam standards, a mine operator is required to comply with the following provisions:

“(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.

(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.

(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.”

During the last 22 years, MSHA issued five Program Policy Letters (PPL) clarifying and emphasizing certain aspects §56/57.18002. Most recently, MSHA issued a PPL in July 2015 that many considered de facto rulemaking for the way it discussed the future enforcement of training requirements for competent persons. The July 2015 PPL (PPL P15-IV-01) encouraged that a foreman or other supervisor act as the competent person for the purpose of workplace exams as a “best practice.” A best practice that also directly links the recognition of hazards, or lack thereof, to the company through an agent of management for elevated enforcement from MSHA, and possibly special investigation under Section 110 of the Mine Act.

Continue reading

OSHA Engages in Backdoor Rulemaking — Courtesy of the Supreme Court

By Eric J. Conn

OSHA is attempting to reap the policy-making benefits of a Supreme Court decision that lets regulatory agencies offer new (even contradictory) interpretations of existing rules without following the Administrative Procedure Act’s (“APA”) notice-and-comment rulemaking process, with the most immediate and serious impacts seen in the regulatory landscape of chemical process safety. OSHA policymakers have shown they are eager to exercise new-found authority to unilaterally change the meaning or application of existing regulations to suit their current agenda (i.e., without soliciting stakeholder input and otherwise flouting the traditional checks on agency rulemaking afforded by the APA, such as economic and feasibility analyses).

Perez v. Mortgage Bankers

That is the reality following the high court’s 2015 decision in the closely watched Perez v. Mortgage Bankers case. The Supreme Court’s decision killed a longstanding doctrine, set by the D.C. Circuit, that changes to agency rules, even if the changes are “interpretive” in nature, must go through APA public notice-and-comment.Mortgage Bankers Mortgage Bankers reversed that principle, and held that notice-and-comment rulemaking is not required for “interpretive rules” or “administrative interpretations.”

The effect of the Supreme Court’s new precedence is to free regulators, like OSHA, to change, though internal fiat, long-held positions regarding how its rules must be followed and enforced, and (if recent efforts by OSHA testing its new authority stand) even to whom its rules apply. In the post-Mortgage Bankers world, OSHA has a powerful new tool for backdoor rulemaking, an already favorite route for OSHA to end-run the burdensome standard-setting process imposed by Congress.

OSHA Impact of Mortgage Bankers

OSHA wasted no time taking this new legal doctrine out for a spin. OSHA’s first efforts to utilize the new authority were seen in Continue reading

EPA Poised To Make Sweeping Changes to the Risk Management Program Rule

By Eric J. Conn

Chemical manufacturers and petroleum refiners are closely tracking the latest activities of a high-level agency working group formed pursuant to President Obama’s Executive Order (13,650) responding to the West, Texas, fertilizer plant explosion in 2013. The President and the public cried out for a higher level of scrutiny of workplaces that store and process hazardous chemicals following the explosion. The working group responsible to carry-out the President’s Order is comprised of EPA, the Occupational Safety and Health Administration, Department of Homeland Security, Department of Justice, Department of Agriculture and Department of Transportation.Chem Safety EO

The present focus of this collection of agencies is to seek regulatory changes, including amendments to EPA’s Risk Management Program (RMP) rule (RIN 2050-AG82). In a series of progress reports to the President, the working group pledged, among many other actions, that EPA would propose regulatory amendments to its Risk Management Program in 2015 and publish a final rule in 2016. Now, as a result of two years of intensive discussions by representatives of the agencies regarding how they could make both internal policy changes and regulatory changes, EPA completed a small business regulatory review process and published in the Federal Register for public comment a proposed rule to revise the RMP requirements. At the same time OSHA plans to soon commence a small business review of proposed changes to its Process Safety Management standard, which provides overlapping regulatory requirements.

Among the numerous significant changes proposed to the RMP rule, Continue reading

OSHA Unveils Controversial Final Silica Rule and Industry Gears Up For Challenges

By Kate M. McMahon and Eric J. Conn

OSHA has issued its long-sought – and heavily disputed – new regulation aimed at reducing worker exposures to crystalline silica dust, cutting the Permissible Exposure Limit (PEL) in half for general industry, construction and maritime activities.

Office of Management and Budget (OMB) officials on March 21, 2016 cleared the rule, essentially green lighting  OSHA to move forward. With this regulation long represented as a top priority for OSHA, Assistant Secretary of Labor David Michaels took no time doing so, issuing the final rule only days after Silica Rule Image 2the White House gatekeeper OMB cleared it back to OSHA. Dr. Michaels said in the press release accompanying the rule that the existing limits on Silica dust are “outdated,” and added that limiting exposure to silica dust is essential.

“Every year, many exposed workers not only lose their ability to work, but also to breathe. Today, we are taking action to bring worker protections into the 21st century in ways that are feasible and economical for employers to implement.”

The soon-to-be-published final rule – effective 90 days from its imminent publication in the Federal Register – cuts the exposure limit on respirable crystalline silica in half for general industry, construction and maritime,Silica Rule Image making the new PEL 50 micrograms per cubic meter (50 µg/m³) of air, on a time-weighted average of exposure across the work day. The PEL, which is the core provision of the rule, was controversial enough considering the little return Industry sees from the reduction, as compared to the economic and technical difficulties involved. However, the new regulation also includes an “action level,” set at 25 µg/m³, which automatically triggers numerous ancillary requirements ranging from exposure controls to medical surveillance. OSHA justifies this action level because many workplace health experts believe that Continue reading

OSHA’s Top 5 Rulemaking Priorities to Close Out the Obama Era

By Eric J. Conn

As we wind down the year and head into the waning days of the Obama Administration, we look with interest at the Administration’s latest, and likely final, Semi-Annual Regulatory Agenda, published November 20th.Reg Agenda Image

If one were a jaded OSHA defense lawyer like me, the thought that publication of the Agency’s list of regulatory priorities and planned rulemaking activities on the eve of the Thanksgiving holiday, when most of the country is focused on family, preparing a Thanksgiving feast, and gearing up for some good football, might have been intentional. “Maybe they won’t notice?” Well, we did, and we thought it would be useful for our readers to have a summary of OSHA’s final priorities in the regulatory arena as the Obama Administration focuses on legacy, and what they would like to accomplish before Secretary Perez and Assistant Secretary for OSHA David Michaels turn out the lights next year at 200 Constitution Avenue.

In the “Fall 2015 Statement of Regulatory Priorities” that accompanied this regulatory update, Sec. Perez expressed:

“So many workplace injuries, illnesses and fatalities are preventable. They not only put workers in harm’s way, they jeopardize their economic security, often forcing families out of the middle class and into poverty. The Department’s safety and health regulatory proposals are based on the responsibility of employers to provide workers with workplaces that do not threaten their safety or health and we reject the false choice between worker safety and economic growth. Our efforts will both save lives and improve employers’ bottom lines.”

One note about OSHA’s robust list of planned regulatory activity for 2016 — and an apt idiom for an analysis of the Thanksgiving Regulatory Agenda — OSHA’s eyes are too big for its stomach. While the Agency’s plans look ambitious and aggressive, if history is a guide, the cumbersome rulemaking machinery will prevent much of these plans from coming to fruition, especially in the final few months before the presidential election. Unless 2016 is an exception, this means there really are only a few productive months remaining for OSHA to accomplish some subset of its long list of priority actions. Looking at the roadblocks Dr. Michaels has already faced in the regulatory arena throughout his term – some of which came from the White House itself – it is unlikely OSHA will accomplish much of what appears in its final Regulatory Agenda.

Notwithstanding, it is important to understand the Agency’s rulemaking plans for numerous reasons, the most important of which is that you can count on the fact that Dr. Michaels’ last priorities will become the first priorities of the next Administration, should a Democrat again take the White House.

Here is our summary of OSHA’s top five regulatory priorities for 2016: Continue reading

OSHA’s Proposed Rule to Require Frequent Submission of Injury Data

By Eric J. Conn

As the clock winds down on the Obama Administration, OSHA has been rushing out a series of proposed amendments to its Injury & Illness Recordkeeping regulations (29 C.F.R. Part 1904), but none of them has the potential to be as impactful to employers as much as the proposed requirement for employers to make frequent submission of injury data to OSHA.RK Rule 1  Specifically, in November 2013, OSHA issued a Notice of Proposed Rulemaking for a proposed rule to “Improve Tracking of Workplace Injuries and Illnesses.”

The rule was widely-criticized by stakeholders through the notice and comment period, but OSHA has advanced the rule to the final stage of the rulemaking process.  Specifically, on October 5, 2015, OSHA submitted a draft final rule to the White House’s Office of Information and Regulatory Affairs (OIRA).  OIRA is a division of the Office of Management and Budget (OMB) that is responsible to review near final proposed regulations, particularly significant regulatory actions.  Generally, OMB has up to 90 days to review a rule, but that period can be extended.

This particular proposed rule would require many employers to electronically submit their injury-and-illness logs (and in many instances, their detailed incident reports also) to OSHA on a regular and frequent basis, as often as quarterly for large employers.  For no apparent safety reason, OSHA also intends to publish employers’ injury data and incident reports online.

This proposal would dramatically shift the current recordkeeping program. Currently, unless OSHA inspects an employer or the Bureau of Labor Statistics (BLS) requests that the employer participate in an annual injury recordkeeping survey, OSHA 300 Logs and related forms remain strictly in-house. Employers keep the data and their OSHA logs in their Human Resources’ or Safety Director’s office, post them for employees for a couple of months, and then store them in a desk drawer for five years.

Requirements of the Proposed Rule. The proposed rule would impose two different burdens on employers:

  1. Employers with 250+ workers (at peak employment during the prior calendar year) must submit on a quarterly basis injury and illness recordkeeping logs and detailed incident reports to OSHA (i.e., the 300 logs and 301 reports);
  1. Employers with 20+ workers in certain “high hazard industries” must submit to OSHA their 300A Annual Summary data of recordable injuries on an annual bases.

Employers will be required to submit the data electronically to OSHA, supposedly via a secure website that has not yet been designed. These reports will include an incredible amount of data, including employees’ personal and health-related information. In theory, OSHA would scrub employee-identifying information (but not employer-identifying information), and publish Continue reading

OSHA’s New Hospitalization, Amputation, and Fatality Reporting Rule: Time to Add OSHA to Your Speed Dial

By Eric J. Conn and Amanda R. Strainis-Walker

On New Year’s Day 2015, the Occupational Safety and Health Administration’s (OSHA) new serious injury and fatality reporting rule became effective, significantly revising the triggering events for reporting workplace accidents to OSHA under the Agency’s Injury and Illness Recordkeeping regulations at 29 C.F.R. 1910.104, et seq.

New Injury and Illness Reporting Rule

The new regulations differ from the long-standing incident reporting rule in four ways:

  1. Lower the threshold for proactively reporting a catastrophic incident from the hospitalization of three or more employees to the hospitalization of a single employee;Reporting 3.JPG
  1. Add amputations (including partial amputations) and loss of an eye to the types of injuries that employers must proactively report;
  1. Introduce an internet portal for employers to submit reportable events; and
  1. Require publication of the reporting events on OSHA’s public website.

Requirements of the New Reporting Rule. The reporting rule has been long-referred to informally as the “Fat-Cat” rule because it requires employers to report to OSHA all incidents that result in an employee fatality (Fat) or a catastrophe (Cat). The new regulation redefines catastrophe. Historically, a catastrophe had been defined as an incident that resulted in the overnight hospitalization for treatment of three or more employees.  The Agency views the new report triggering events as indicative of serious hazards at a workplace. Assistant Secretary of Labor for OSHA David Michaels explained that:

“hospitalizations and amputations [are] sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment.”

In addition to lowering the threshold from three to one employee hospitalizations, OSHA also changed the definition of “hospitalization.” Historically, an employee’s overnight hospital stay triggered the reporting requirement. Under the new rule, whether the hospitalization is a reportable event turns not on whether the employee stays overnight, but rather, whether the employee is formally admitted to the “in-patient” service of the hospital or clinic. The visit, however, must involve medical care after the in-patient admission. A hospital visit only for observation or diagnostic testing, even if it involves in-patient admission, does not constitute a reportable event.

The concepts of “formal admission” and “in-patient service” seem to be causing significant confusion in the new rule’s early stages. While OSHA continues to Continue reading