"Undue hardship under Title VII of the Civil Rights Act of 1964 has been defined by courts as imposing more than ordinary administrative costs or burdens on the operation of the employer's business," noted Aaron Gelb, an attorney with Conn Maciel Carey in Chicago. 

“There are going to be some long days and nights for the folks who are drafting this rule,” says labor lawyer Aaron Gelb, a partner in the Chicago office of Conn Maciel Carey. “It’s an interesting time to be an OSHA lawyer for sure.”

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“There are going to be legal challenges brought to whatever rule,” attorney Gelb said. “OSHA is going to really devote time and effort to drafting a rule that will survive those legal challenges.” He predicts the rule won’t be published in the Federal Register until November.

The 39-year-old logistics company, headquartered in Woodridge with 500 employees and more than a dozen Chicago-area warehouses, plans to contest the fine at an upcoming OSHA hearing, according to Aaron Gelb, a Chicago-based attorney representing Midwest Warehouse.

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“The company had a very robust pandemic response plan in place,” Gelb said Wednesday. “We don’t believe that the evidence supports the citation.”

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COVID-19 safety protocols at the facility include temperature checks, masks and social distancing “wherever feasible,” Gelb said.

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Employers have welcomed what they see as a trend in recent OSHRC decisions under the current membership that have limited OSHA’s discretion on enforcement action. The recent decisions have taken a narrow view of the agency’s standards for machine guarding and safe storage practices, while also giving employers more leeway to correct errors in the administrative process of appealing penalties to the panel.

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During a recent webinar on the incoming Biden OSHA, Conn Maciel Carey attorney Aaron Gelb urged employers to “push back” against enforcement actions using those and other decisions as precedent.

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“Really consider pushing back, because I think these cases give you an opportunity to do that,” he said.

“OSHA will not be using drones to conduct covert surveillance,” says Aaron Gelb, of Conn Maciel Carey, a firm that represents employers, adding that in order for OSHA to use a drone to help conduct an inspection, the agency must get employers' consent. “They have to get your permission.”

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Gelb says that the agency flying a drone near a worksite and spotting a workplace hazard is a potential outcome, because the agency has done so in the past. “I wouldn't be surprised if they use it in an adjacent area that is public property,” he says. OSHA inspectors can observe an outdoor worksite from across the street if they are in a public space and can cite hazards that are in “plain view.”

Gelb said the employer’s stated reason for the experience limitations in its job posting—that it was worried an attorney with more than seven years’ experience wouldn’t stay in the job for long—also “stood out.” There might be better ways to go about that, he said, including listing a salary range in the ad if another purpose of seeking a more junior attorney was to keep costs down. Gelb is a partner with Conn Maciel Carey in Chicago.

In a session called “OSHA Under Trump,” Aaron Gelb, Conn Maciel Carey and Jim Slaughter of Beveridge & Diamond discussed whether OSHA has changed in the 15 months since President Donald Trump took office after pledging to cut back government’s reach into workplaces. Moderated by Jerry Peters of Rumpke Consolidated Companies, the session also focused on possible agency changes down the road, and the speakers gave tips on getting through OSHA inspections.

“Trump said there would not only be less enforcement but that there would be deregulation. We are not seeing efforts to deregulate or deconstruct at OSHA,” said Gelb.

Aaron Gelb, of the law firm Conn Maciel Carey, says that he doubts the agency will promulgate a standard to address the issue but that “sexual harassment fits in that definition” and “as people look to address this issue OSHA may look into it as a workplace hazard.”

Aaron Gelb, also of Conn Maciel Carey, pointed to the shift in content and tone on OSHA's website and noted that many of the OSHA “Quick Takes” emails have had more of an emphasis on cooperative programs than enforcement.

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He also expects that while OSHA will issue “substantially” fewer press releases than the Obama administration, OSHA will likely be issuing them at a higher frequency than in 2017.

Gelb argued that while “everyone agrees with the objective” of Schumer's plan, that Schumer “misunderstood” the process of receiving OSHA citations and suggested that while Mugno is open to working with lawmakers, that he may approach the issue differently.

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“Any company that has a serious citation will have to share the info,” Gelb said noting that most citations issued by OSHA are “serious,” and that not every citation will involve issues concerning the safety of first responders.