Tips and Strategies for Preventing and Responding to Workplace Violence Incidents [Webinar Recording]

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On Wednesday, April 24, 2024, Kara Maciel, Rachel Conn, and Dan Deacon presented a webinar discussing Tips and Strategies for Preventing and Responding to Workplace Violence Incidents.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) for several years, as it continues to be one of the leading causes of occupational injuries in the country every year. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized serious hazards, and OSHA has instituted enforcement actions under its General Duty Clause after incidents of workplace violence. OSHA has also initiated a rulemaking to address workplace violence in specific industries.

California has taken the lead in implementing the first workplace violence rule in the country for general industry, requiring nearly all California employers (unless they fall under one of the limited exemptions) to establish, implement, and maintain an “effective” written workplace violence prevention plan, investigate every incident workplace violence (broadly defined), create and maintain violent incident logs, conduct annual employee and supervisor training, and abide by additional recordkeeping requirements. This general industry rule follows the Cal/OSHA regulation on Workplace Violence Prevention in Health Care.

The EEOC has also prioritized ways to effectively prevent and address workplace violence, particularly in the form of workplace harassment. And outside of OSHA and the EEOC, employers can also be held liable for workplace violence through other claims such as negligent hiring and supervision.

Participants in this webinar learned: Continue reading →

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

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

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

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

Background

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

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

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

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

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

BREAKING: OSHA Issues Final Worker Walkaround Representative Designation Process Rule

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

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

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

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

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

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

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

Eric J. Conn 2 Comments

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

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

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

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

OSHA Sends Proposed Final “Worker Walkaround Representative Designation Process” Rule to OMB

Darius Rohani-Shukla 1 Comment

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

In early 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule that would amend existing regulation 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of that regulation:

  1. Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer that is being inspected, to now 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. The existing regulation focuses on non-employees with a technical credential, “such as an industrial hygienist or a safety engineer” to accompany OSHA on an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
  3. The proposed rule may also expand the role these third party representatives play during an OSHA inspection. The OSH Act and the existing regulation speak in terms of the representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA pursuant to OSHA’s broad subpoena authority, etc.

Continue reading →

Celebrating Black History Month

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Black History Month is a time to recognize and honor the many contributions of Black Americans throughout U.S. history. Conn Maciel Carey LLP’s Chief Operating Officer, Mikel Koon, shares her dad’s accomplishments as a jazz musician against the backdrop of the Civil Rights Era – a time when Black musicians battled for recognition – when he carved a path that would become a bridge between cultures and a beacon of resilience.

Warren playing percussion.

Musical Career

Warren Smith is a disciplined New York-based drummer and percussionist with a long history of pitching in on various masterworks, from the recordings of soul queen Aretha Franklin to the avant-garde saxophone maverick and fascinating composer Sam Rivers. Smith has also been a longtime member of one of the great percussion projects, the Max Roach M’Boom ensemble of drummers.

His reputation has always been that of a no-nonsense, hard-working, and dedicated performer, so he is a favorite working partner of bandleaders or composers who want to present projects with an absolute minimum of hassle or attitude from their collaborators. This list includes Anthony Braxton, Charles Mingus, Henry Threadgill, Van Morrison, Count Basie, Sam Rivers, Tony Williams, and Joe Zawinul. As each new generation of players enters the ever-developing world of jazz, Warren Smith has never been one to lord over newcomers or put up barriers against innovative jazz forms; on the contrary, he seems to always be part of the crew that is out front.

Warren and his daughters in Cape May.

During the late-’70s/early-’80s “loft jazz” scene in New York City,his Studio Wis was one of the few so-called “lofts” that actually was a loft. It was also not a “pay-to-play” loft; in other words, rather than exploit the city’s hungry musicians, Smith gave generously of his personal studio space so that talented newcomers to the New York City scene such as Oliver Lake and Wadada Leo Smith could present concerts without having to worry about outrageous rental fees. Warren Smith often attended these events, smiling wider as the music went further and further out, approaching the unknown players to pay compliments and offer advice. His work in studio sessions and Broadway pit bands made him a likely source of wisdom on all subjects related to sight reading, arranging, or composition. When a young guitarist in a group performing at Studio Wis asked for advice on sight-reading exercises after a gig in 1979, Smith‘s response was Continue reading →

OSHA Releases a New Process Safety Management “Enforcement Manual”

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By Beeta B. Lashkari and Eric J. Conn

Things have been busy the last couple of months on the RMP/PSM front with these developments:

  1. Without announcement, on January 26, 2024, Fed OSHA posted a new PSM “enforcement manual,” replacing its long-standing 1994 compliance directive.
  2. Members of the House Energy and Commerce Committee sent EPA a letter on January 18, 2024, urging EPA to withdraw and re-propose its upcoming RMP rule update, charging that the proposed version conflicts with OSHA and other agencies’ responsibilities, goes beyond Congress’ explicit mandates, and raises security concerns, among other things.
  3. On December 27, 2023, Washington state’s Division of Occupational Safety and Health amended its PSM standard, effective December 2024, adding a new part specifically addressing process safety at petroleum refineries.
  4. The United Steelworkers (“USW”) filed a petition on January 15, 2024 with Cal/OSHA’s Standards Board asking Cal/OSHA to develop an emergency temporary standard (“ETS”) that would subject renewable fuel refineries to the same rules the state applies to petroleum refineries.

For a relatively quiet 2023, 2024 is starting off with a bang. While we are keeping our eyes and ears open on these and any other relevant developments, we wanted to provide a summary of the key highlights from Fed OSHA’s new PSM enforcement manual, especially in light of the fact that the now-cancelled instruction had essentially been in place for the lifetime of the PSM standard.  Here are some of our main takeaways:

Why Did OSHA Issue This New Enforcement Manual? Continue reading →

OSHA Recordkeeping, E-Recordkeeping, and Reporting Update [Webinar Recording]

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On Thursday, February 8, 2024, Eric J. Conn, Lindsay A. DiSalvo, Valerie Butera, and Ashley D. Mitchell presented a webinar covering an OSHA Recordkeeping, E-Recordkeeping, and Reporting Update.

Last summer, OSHA finalized an amended E-Recordkeeping Rule, which expands the data many employers are required to submit to OSHA every year. We are also at a moment in OSHA’s history when the agency is clearly staffing up and ramping up inspections and enforcement generally, and with respect to injury and illness recordkeeping specifically. For example, OSHA has just introduced a new enforcement policy to allow for instance-by-instance citations for recordkeeping violations. With data submissions to OSHA under the new E-Recordkeeping Rule due now, and with the new enforcement risks around recordkeeping, accurate OSHA injury and illness recordkeeping and reporting is more critical now than ever before.

This webinar took a deep dive into the top 10 reasons it is critical to get recordkeeping and reporting right, with tips and strategies for how to do so.

Participants in this webinar learned: Continue reading →

Solicitor of Labor Publishes Annual “Enforcement Report” for 2023

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By Darius Rohani-Shukla and Eric J. Conn

In late January 2024, the Department of Labor released its annual report summarizing the Solicitor of Labor’s (SOL) enforcement work in FY 2023. SOL enforces more than 180 federal statutes and their implementing regulations. This report is a helpful resource for employers as it demonstrates SOL’s most recent enforcement priorities. In its report, SOL emphasized three aspects of its FY23 enforcement work:

  • SOL’s Emphasis on Retaliation Claims;
  • SOL’s Use of Litigation and Amicus Work to Affect Employee Misclassification and Coercive Employer Tactics; and
  • SOL’s Willingness to Use All Tools at its Disposable.

As the Solicitor of Labor said as an introduction to the report:

“We recognize that as the government, we play a unique role in the federal labor enforcement landscape…. This report will focus on three key aspects of our work: building out our retaliation priority across program areas; utilizing our litigation tools and our amicus and appellate practices to build positive developments in the law, such as combatting misclassification and coercive employer tactics; and deepening our use of all the tools in our toolbox, from warrants, to enhanced
compliance agreements, to criminal enforcement coordination.”

  1. SOL’s Emphasis on Retaliation Claims

Continue reading →

OSHA Officially Published Its Proposed Emergency Response Rule

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By Eric J. Conn and Beeta B. Lashkari

We hope you saw our post last week about OSHA’s new Emergency Response Rulemaking and the Rulemaking Coalition that Conn Maciel Carey LLP is organizing to work on this surprisingly onerous proposed rule.

When we published that article, the NPRM package had been revealed by OSHA but had not yet been published in the Federal Register.  That has now changed.  OSHA’s proposed Emergency Response rule for emergency and related responders was officially published in the Federal Register today.  Unless OSHA grants a request for an extension of the comment period, stakeholders’ written comments to the NPRM will be due in 90-days – by May 6, 2024.

Here is more detail about some concerning aspects of OSHA’s new proposed Emergency Response Rule and about our Rulemaking Coalition.

CMC’s prior OSHA Rulemaking Coalitions over the last several years have been successful in making important changes to OSHA’s major rulemakings and have otherwise been valuable experiences for our participants because of the timely and detailed updates about the rulemaking processes that we have provided.  We intend to take the same approach for this rulemaking.  We will coordinate with our coalition participants to: Continue reading →

[Webinar] OSHA Recordkeeping, E-Recordkeeping, and Reporting Update

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On Thursday, February 8, 2024, at 1 p.m. EST, join Eric J. Conn, Lindsay A. DiSalvo, Valerie Butera, and Ashley D. Mitchell for a webinar to cover an OSHA Recordkeeping, E-Recordkeeping, and Reporting Update.

Last summer, OSHA finalized an amended E-Recordkeeping Rule, which expands the data many employers are required to submit to OSHA every year. We are also at a moment in OSHA’s history when the agency is clearly staffing up and ramping up inspections and enforcement generally, and with respect to injury and illness recordkeeping specifically. For example, OSHA has just introduced a new enforcement policy to allow for instance-by-instance citations for recordkeeping violations. With data submissions to OSHA under the new E-Recordkeeping Rule due now, and with the new enforcement risks around recordkeeping, accurate OSHA injury and illness recordkeeping and reporting is more critical now than ever before.

This webinar will Continue reading →

Conn Maciel Carey Earns ISO 27001 Certification for Information Security

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Conn Maciel Carey LLP is proud to announce that it has achieved ISO 27001 certification – a security-related benchmark issued by the International Organization for Standardization for managing security assets. It ensures that organizations have robust processes in place to identify, manage, and reduce risks to information security.

Background about ISO 27001 Certification​

At CMC, protecting the confidentiality and integrity of our clients’ data is of prime importance. Data breaches and ransomware attacks are on the rise for many industries and organizations around the globe, and law firms are no exception. ISO 27001 certification was a necessary next step to ensure that we are proactively managing and avoiding cybersecurity threats. The certification reflects that CMC’s data security practices and infrastructure meet a globally-recognized standard for the protection of all types of business data, including electronic information, hard copy data, and third-party suppliers. This achievement further affirms CMC’s investment in the security of our clients’ information. ​

The ISO 27001 Certification Process​

To obtain certification, CMC underwent a rigorous set of internal and external audits and process improvements to ensure its IT systems and data privacy practices met the requirements of ISO/IEC 27001.

Continue reading →

OSHA’s Emergency Response Rulemaking Covers Private Employers With Designated Emergency Responders – Join CMC’s Employers Rulemaking Coalition

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

OSHA is sure not letting the regulated community ease into the new year.  Indeed, right as we were shutting down for the holidays, OSHA slid a little gift under the tree in the form of yet another proposed regulation.  Specifically, on December 21, 2023, OSHA revealed a pre-publication proposed “Emergency Response” Rule, which it will publish any day now.  The rulemaking is designed to update OSHA’s existing “Fire Brigades” standard and to expand safety and health requirements related to emergency responders – both public and private.

We are writing to gauge your organization’s interest in participating in a coalition of employers and trade associations to work on this OSHA rulemaking.

Background About OSHA’s Emergency Response Rulemaking

So you would not have to, we have poured through the 600+ page pre-publication Notice of Proposed Rulemaking (NPRM) package.  Per OSHA, the soon-to-be-proposed “Emergency Response” Rule will update safety and health protections in line with national consensus standards for a broad range of workers exposed to hazards that arise during and after fires and other emergencies.  Particularly, the standard will apply to Workplace Emergency Response Employers (“WERE”), a term that applies to private employers engaged in industries such as manufacturing, processing, and warehousing that have, or establish, a Workplace Emergency Response Team (“WERT”).  OSHA explains that employees on the WERT are those who, either as a primary or collateral duty of their regular daily work assignments, respond to emergency incidents to provide services such as firefighting, emergency medical service, and technical search and rescue.  Continue reading →

OSHA’s 2023 in Review and 2024 Forecast [Webinar Recording]

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On Wednesday, January 17, 2024, the Partners in Conn Maciel Carey’s national OSHA Workplace Safety Practice Group presented a webinar covering OSHA’s 2023 in Review and 2024 Forecast.

As we approach a Presidential Election that will determine the shape of OSHA enforcement and rulemaking for years to come, it is time to look back and take stock of what we learned from and about OSHA during another very eventful year. More importantly, it is once again time to look ahead and discuss what employers should expect from OSHA during Year 4 of the Biden/Harris Administration.

In this webinar, we reviewed OSHA enforcement data and trends, important policy changes at OSHA (e.g., expanding the Severe Violator Enforcement Program and per instance citation authority), and major rulemaking developments (e.g., finalizing E-Recordkeeping, and advancing Heat Illness and the Worker Walkaround Representative rulemaking). We also discussed the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar will learn about: Continue reading →

New Calif. Dept. of Health Order Drastically Changes Isolation Requirements for COVID-19 Cases

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On January 9, 2024, the California Department of Public Health (CDPH) issued a new State Public Health Officer Order impacting COVID-19 isolation periods. This revision, applicable to Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations, introduces changes to the definition of the “Infectious Period,” drastically reducing the isolation period for COVID-19 cases.

Notably, non-healthcare employees with asymptomatic cases are no longer required to be excluded from the workplace, and employees with confirmed cases can return within 24 hours of symptom onset under certain conditions. The new “Infectious Period” definition also significantly impacts close contacts and exposed group definitions and analysis under the Cal/OSHA Regulations.

Check out the full article on CMC’s Cal/OSHA Defense Report blog for more information about the redefined “Infectious Period” for symptomatic and asymptomatic cases and its effects on employers.

The CSB Clears Its Investigations Backlog With a Flurry of Holiday Season Investigation Reports

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By: Beeta B. Lashkari, Eric J. Conn, and Valerie Butera

As we begin the new year, we wanted to look back and report out on a rather remarkable year at the US Chemical Safety and Hazard Investigation Board (the “CSB”).  Most notably, the CSB set and met a goal of clearing out its investigations backlog before the end of CY 2023.  By any measure, the CSB just closed its most productive year ever, issuing a record-setting eleven investigation reports.  For context, the CSB issued only six reports in 2022, three in 2021, none in 2020, and four in 2019.  Currently, the CSB has only two open investigations for incidents that just occurred within the last year and a half.

As we discussed in our December 13, 2022 Process Safety Update Webinar, on May 20, 2021, the Congressional Committee on Energy and Commerce sent the CSB a letter, calling on the CSB to clear out its “investigations backlog,” which, at that time, included 20 open investigations, including at least one that was more than five years old.  The letter specifically instructed the CSB to:

“Provide a copy of the CSB’s most recent investigation plan, including the status of all open investigations, the expected timeframe for completing each investigation, and the number of investigators assigned to each investigation.”

A day later, the CSB released one investigation report, so that, by the time the agency replied to Congress’ letter on June 10, 2021, it reported that there were 19 open investigations, and provided a status for each one: five were noted as being in the early investigation report-writing phase, and 14 were in a mid- or advanced phase.  However, the CSB did not at that time provide a specific timeframe for completing each report, stating only that:

“[t]he timeframe for completing investigations is a dynamic re-assessment based on numerous factors. The Agency plans to continue closing investigations with increased transparency through the public board meeting process . . . and to improving the timelines as the Agency rebuilds our staff and processes.”

Three months later, on September 24, 2021, the CSB issued a couple more investigation reports, and a few days after that, on September 29, 2021, then-CSB Chairperson Katherine Lemos testified before the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, emphasizing the progress the CSB was making on the release of investigation reports.  Specifically, Chairperson Lemos testified that the CSB had completed three investigations in 2021, compared to only one in 2020.

Then, on October 7, 2021, the CSB sent another letter to Congress, this time providing a specific timeline for all remaining open investigations.  Per the (very ambitious) timeline, with older investigations prioritized, all open CSB investigations of incidents occurring prior to calendar year 2020 would be completed in fiscal year 2022. Although the CSB was not able to meet its initial timeline, it updated its investigations closure plan in October 2022, committing to another very ambitious timeline to complete all of its then-remaining fourteen open investigations by the end of calendar year 2023.  With a new and nearly full slate of Board Members and renewed life at the agency under the Biden Administration, including the hiring of additional staff, the CSB met that timeline, barely. Continue reading →

Happy Holidays from Everyone at Conn Maciel Carey!

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All of us here at Conn Maciel Carey wish you a joyful and safe holiday season!

Please enjoy this holiday greeting from the CMC family to your family:

We have so much to be thankful for at Conn Maciel Carey, but most of all, we thank you all for continuing to turn to us for counsel and legal services.  Please contact us if you have questions about any of the topics we have covered here on the OSHA Defense Report blog, or if you have ideas for other subjects we should be covering.  And of course, contact any of us if there is ever anything our national OSHA • Workplace Safety Practice Group at Conn Maciel Carey can do to help your organization with workplace safety law issues.

Announcing Conn Maciel Carey’s 2024 OSHA Webinar Series

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Now three full years into the Biden Administration, it is the perfect time to take a close look at what we learned from and about OSHA during these very eventful years.  More importantly, as OSHA has turned the page from the pandemic and started to “use all of the tools available” in its regulatory and enforcement toolbox, it is a good time to look ahead and assess what OSHA’s priorities will be leading up to the Presidential Election this Fall and in the years ahead.  That picture is becoming clearer (and more fraught for employers), as OSHA has drastically increased its penalty authority, reimagined its dreaded Severe Violator Enforcement Program, expanded its “instance-by-instance” citation policy, launched new emphasis programs, worked an aggressive rulemaking agenda, and set new records for significant enforcement actions year after year.  Accordingly, it is more important now than ever before for employers to keep abreast of developments at OSHA.

Conn Maciel Carey’s complimentary 2024 OSHA Webinar Series, which includes monthly programs (sometimes more often) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA during this period of unpredictability and significant change.  ​To register for an individual webinar in the series, click on the registration link within the individual program descriptions below, or to register for the full webinar series, click here to send us an email request and we will get you registered for all of the programs.  Also check out our companion Cal/OSHA Webinar Series, MSHA Webinar Series, and Labor & Employment Webinar Series.

If you missed any of our 100+ webinar programs over the past decade, here is a link to recordings in our webinar archive.  If your organization or association would benefit from an exclusive program presented by our OSHA team on any important OSHA-related topic, please do not hesitate to contact us.

OSHA's 2023 in Review and 2024 Forecast

Wednesday, January 17th		Process Safety Management & CalARP

Monday, August 5th
OSHA Recordkeeping & Reporting Update

Thursday, February 8th		Unique Aspects of OSHA-Approved State Plans

Thursday, September 19th
OSH & Employment Law Compliance in ESG

Thursday, March 21st		Employee Retaliation & Whistleblower Claims

Wednesday, September 25th
Tips for Responding to Workplace Violence

Wednesday, April 24th		Cal/OSHA & Employment Law In-Person Summit

Tuesday, Oct. 8th and Thursday, Oct. 10th
Mid-Year Review: OSHA/MSHA Developments

Tuesday, May 28th		Deep Dive: OSHA’s Hazard Communication Rule

Tuesday, October 15th
Impact of EPA's New TSCA Rules on OSHA Chemical Safety Enforcement  

Wednesday, June 12th		Intersection of Artificial Intelligence and OSHA and Employment Law

Wednesday, November 13th
OSHA's Enforcement National & Local Emphasis Programs

Thursday, July 18th		2025 OSHA New Year's Resolutions: 12 Ways to Improve Your OSHA-Readiness

Wednesday, December 18th

See below for the full program descriptions.

Continue reading →

What Employers Need to Know About OSHA and Combustible Dust [Webinar Recording]

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On Thursday, December 7, 2023, Kate McMahon and Beeta Lashkari presented a webinar regarding What Employers Need to Know About OSHA and Combustible Dust.

Although the understanding of the hazards of combustible dust has developed over the last decade, it remains an elusive and complex subject to both regulators and employers. Combustible dust hazards can be present in a broad spectrum of industries, including the food (e.g., candy, sugar, spice, starch, flour, feed), grain, tobacco, plastics, wood, paper, pulp, rubber, pesticide, pharmaceutical, dyes, coal, and metals (e.g., aluminum, chromium, iron, magnesium, and zinc) industries.

OSHA does not have a specific standard for general industry regulating combustible dust (OSHA’s standard is limited to grain handling facilities); however, it does have a National Emphasis Program (NEP) on the hazard, which it uses regularly to inspect certain facilities and issue citations under the General Duty Clause. Additionally, as one of its Drivers of Critical Chemical Safety Change, combustible dust hazards are one of the U.S. Chemical Safety Board’s (CSB’s) top advocacy priorities, prompting the CSB to initiate investigations and, if it deems them appropriate, issue recommendations to employers (among others) and publicize reports detailing the cause of combustible dust incidents.

To mitigate the risk of potentially catastrophic incidents and avoid citations from OSHA and/or recommendations from the CSB, employers with dusts that may be combustible are well-advised to proactively address any associated hazards they may have in their facilities.

Participants in this webinar learned about: Continue reading →

Introducing CMC’s California Workplace Violence Prevention Compliance Solutions

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On September 30, 2023, California Governor Newsom signed SB 553 – a sweeping new law addressing Workplace Violence Prevention in virtually all California workplaces.  California employers (unless they fall under one of the limited exemptions) will be required by July 1, 2024, to:

    • Establish, implement, and maintain an effective workplace violence prevention plan
    • Perform a workplace violence-specific hazard assessment of your workplace and operations
    • Conduct an investigation of every incident of workplace violence (broadly defined)
    • Generate investigation reports of every incident of workplace violence
    • Create and maintain Violent Incident Logs
    • Provide annual interactive employee and supervisor training
    • Maintain (and produce upon request) program-related records for various periods

These requirements may seem straightforward; however, compliance pitfalls await employers who fail to delve into them deeply, and responses to workplace violence incidents may expose employers to legal claims in other areas of the law. To that end, Conn Maciel Carey’s California Practice has created several options to assist employers with compliance.

A Full Turnkey Workplace Violence Prevention Program Solution

We are pleased to offer a flat fee turnkey Workplace Violence Prevention Program which will include the following materials and services: Continue reading →

Update About OSHA’s Worker Walkaround Designation Process Rulemaking

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

Back in Q1 of 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule, and we have been tracking the rulemaking on the OSHA Defense Report blog since that time.  Specifically, the Worker Walkaround Representative Designation Process rulemaking proposes to amend the existing regulation at 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of the existing regulation:

  1. Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer being inspected, to now allow non-employee third parties to act as representatives; and
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation allows a non-employee “such as an industrial hygienist or a safety engineer” to accompany an OSHA compliance officer during an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The specific reference in the regulation to these technical credential has meant that only representatives with relevant technical expertise, credentials, or unique language skills have been permitted to accompany OSHA.  The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
  3. The proposed rule may also expand the role these third party representatives can play during the inspection. The OSH Act and the existing regulation speak in terms of the employee representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA, etc.

Conn Maciel Carey’s national OSHA and Labor & Employment Practice Groups formed the Employers Walkaround Representative Rulemaking Coalition, composed of a broad and diverse group of employers and trade associations representing many industries, including retail, manufacturing, petroleum refining, construction, food manufacturing and distribution, agricultural, and more, with millions of employees across thousands of workplaces in every state in the US. On behalf of that rulemaking coalition, we recently submitted a comprehensive set of written comments to OSHA’s rulemaking docket.  In this post, we provide you with a summary of our comments that detailed:

  1. The concerning ways the proposed rule would impact employers;
  2. How the proposed rule conflicts with the OSH Act, the National Labor Relations Act, and the US Constitution; and
  3. How the rulemaking process has violated the Administrative Procedure Act and Executive Order 12866

The written comments submitted on behalf of the Employers Walkaround Representative Rulemaking Coalition, available here (https://www.regulations.gov/comment/OSHA-2023-0008-1976), present our concerns that the Proposal would open a flood gate to a multitude of workplace disruptions.  Specifically, we explained how: Continue reading →

Happy Thanksgiving from Everyone at CMC!

Theresa Jordan Leave a comment

 

With Gratitude

From Your Friends at Conn Maciel Carey

As we reflect on all that we are thankful for this Thanksgiving, we want to express our genuine appreciation for your continued support. It is clients like you who make it all worthwhile. Thank you for being a part of our CMC family! Wishing you a joyous and peaceful holiday.

New Memorandum of Understanding Between OSHA and the NLRB Will Drive Coordinated Enforcement Efforts

Eric J. Conn Leave a comment

By Kimberly Richardson and Eric J. Conn

On October 31, 2023, the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) signed a new Memorandum of Understanding (MOU) to coordinate investigations and other enforcement activities. The agencies’ coordinated enforcement applies not only to protections afforded to employees under the Occupational Safety and Health Act (OSH Act) and the National Labor Relations Act (NLRA), but it also applies to the 20 plus whistleblower laws that OSHA is charged with enforcing. The OSH Act and the NLRA both include protections for workers who complain to management about unsafe or unhealthy working conditions.

The purpose of the MOU is to:

“facilitate interagency
cooperation and coordination between the [NLRB] and [OSHA] by
establishing a process for information sharing and referrals, training, and outreach between
the agencies concerning the [NLRA], 29 U.S.C. 151 et seq., the
[OSH Act], including, but not limited to, its
anti-retaliation provision, section 11(c), 29 U.S.C. 660(c), and any current and future
statutory protections which OSHA is charged with enforcing, including various
whistleblower provisions.”

Under the new MOU, OSHA and the NLRB agreed to the following:

  • Information Sharing. OSHA and the NLRB and OSHA may, either upon request or upon one of the agency’s own initiative, share information or data that supports enforcement mandates regardless of whether the information or data was obtained through investigations or from other sources.
  • Coordinated Investigations and Inspections. Where OSHA or NLRB suspects there are overlapping statutory violations at issue, they will coordinate investigations and inspections with the other “in appropriate cases and to the extent allowable under law.”
  • Informing Employees About Their Rights. The MOU provides guidance for OSHA and NLRB staff on how to inform complainants and charging parties of their rights under the NLRA and any act enforced by OSHA, and how to contact the appropriate agency for further assistance. Continue reading →

OSHA Nears the End of the SBREFA Phase of its Outdoor and Indoor Heat Illness Prevention Rulemaking

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

For the better part of 2023, OSHA has been working through the Small Business Regulatory Enforcement Fairness Act (SBREFA) phase of its rulemaking to produce an Outdoor and Indoor Heat Illness Prevention Standard.

The SBREFA process is conducted by a Small Business Advocacy Review (SBAR) Panel composed of representatives from OSHA, the Office of Information and Regulatory Affairs (OIRA) within the White House’s Office of Management and Budget (OMB), and the Office of Advocacy (Advocacy) of the Small Business Administration (SBA).  The SBAR Panel’s primary role is to collect input from Small Entity Representatives (SERs) and report and on the comments of SERs and the Panel’s findings as to issues related to small entity impacts and significant alternatives that accomplish the agency’s objectives while minimizing the impact on small entities.  After the SBAR Panel meetings conclude, the panel writes and issues a report, which is delivered to the Head of OSHA for consideration.  The report typically includes the panel’s findings and recommendations, as well as the list of SERs, the SERs’ written comments, results of any polling questions asked during the meetings, and the documents provided to the SERs.

SBAR Panel Reports contain recommendations for OSHA on the Panel’s analysis and on possible approaches to regulatory action that may minimize impacts on small entities. Of course, while focused on small entities, the report has significant implications for industry as a whole.

The SBREFA process for OSHA’s Outdoor and Indoor Heat Illness Prevention rulemaking is nearing its conclusion.  The SBAR Panel convened numerous meetings SERs, received significant written comments from those SERs, and last week issued its SBAR Panel Report, formally transmitting it to Doug Parker, Assistant Secretary of Labor for OSHA on November 3, 2023.  The 332-page report is linked here and on OSHA’s Heat Injury and Illness SBREFA webpage (see the red banner at the top of the page). Continue reading →

Announcing Conn Maciel Carey LLP’s 2024 Cal/OSHA Webinar Series!

Theresa Jordan Leave a comment

Announcing CMC’s Cal/OSHA Webinar Series!

California’s Division of Occupational Safety and Health (Cal/OSHA) is the most aggressive and enforcement-heavy approved State OSH Program in the nation, and as a result, California employers face a host of requirements that other employers around the country do not. Given that Governor Newsom signed a slew of new bills – including SB 553 Workplace Violence Prevention – most employers stand to be impacted by at least one new standard. In addition, California continues to experience regular changes in the employment law landscape through new legislation and decisions from the California courts. Accordingly, employers should do their due diligence to understand and adhere to their new compliance obligations.

Conn Maciel Carey LLP’s complimentary 2024 Cal/OSHA Webinar Series, which includes at least quarterly programs put on by the Cal/OSHA attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into what you can expect in the coming year from the latest legislative and rulemaking developments at Cal/OSHA.

To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2024 series, click here to send us an email request, and we will get you registered.  Please note, that registration for the In-Person Cal/OSHA and California Employment Law Summit is separate from the webinar series. See the description below for more details.

If you missed any of our programs from the past eight years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings.  If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in the Cal/OSHA webinar series or any other important Cal/OSHA-related topic, please do not hesitate to contact us.

California’s New WVP Law

Thursday, November 9, 2023

 Cal/OSHA Mid-Year Update

Wednesday, May 22, 2024

Enforcement and Regulatory Update

Tuesday, December 12, 2023

Preparing for and Managing Inspections

Wednesday, August 21, 2024

Top Cal/OSHA Violations

Wednesday, February 21, 2024

Cal/OSHA and Employment Law Summit

October 2024 – Date(s) TBD

Annual Cal/OSHA Enforcement and Regulatory Update: Are You Ready for 2025?

Thursday, December 5, 2024

See below for full program descriptions.

Continue reading →