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"What's The Hazard" Podcast - Special Guest Eric Conn

What's The Hazard" (April 30, 2021)

Conn Maciel Carey’s Co-Founder and OSHA Practice Chair, Eric J. Conn, made a special guest appearance on the most recent episode of the “What’s The Hazard” safety podcast series hosted by Doug Fletcher, of Fletcher Safety Consulting.

During this interview, Eric shared an OSHA defense counsel’s insight about the highly anticipated Federal OSHA COVID-19 Emergency Temporary Standard, and tips for employers about managing OSHA inspections, including the most important steps to prepare for inspections, common mistakes employers make during inspections, and strategies to achieve successful outcomes at the end of inspections.

Most recently, the employer law firm Conn Maciel Carey urged OSHA to exempt COVID-19 from recordkeeping in its expected emergency temporary standard (ETS), as part of a comment letter setting out employers’ priorities for that rule.

Eric Conn, one of the firm’s founding partners and its OSHA and workplace safety practice group chair, told Inside OSHA doing so would avoid placing an unnecessary burden on employers who should be focused on limiting potential spread of the disease rather than tracing the source of individual cases.

The White House Is A Month Past Its Own Deadline For New COVID-19 Work Protections

Huffpost (April 15, 2021)

Eric Conn, a lawyer who advises employers on OSHA issues, said he believes the Biden administration will move ahead with a rule. While the pace of vaccinations has been promising, Conn said rising cases and the pause in the use of the Johnson & Johnson vaccine “is absolutely going to have an effect on their thinking here.”

“I’m frankly surprised it hasn’t been done yet,” he said. “I think there’s room to both do a rule and recognize that maybe we are coming out of this.”

During a March 16 webinar hosted by the industry-focused law firm Conn Maciel Carey, attorneys including a former CSB investigator said the board increased its “deployments” to chemical release sites in 2020, even as other agencies cut their enforcement actions due to the pandemic, and could ramp up its work on those and other cases even more as COVID-19 becomes less of a threat.

“What [CSB] did in the field was quite a bit different, there were a lot more virtual discussions with employers, gathering documents remotely and planning to meet in the field once vaccination has gotten us past this crisis,” attorney Eric Conn, a founding partner at the firm, said.

He noted that CSB deployed staff to seven incidents in 2020 -- a sharp rise after making only four deployments in each of 2018 and 2019. That is in sharp contrast to other agencies -- especially OSHA, where inspection figures dropped from a relatively steady average of of about 32,000 per year over the prior five years, to 21,000 in 2020.

CSB “actually increased the number of deployments that they responded to during the year, [to] almost as many as they did during Trump's entire term,” he said.

In a Jan. 21 executive order, President Joe Biden directed OSHA to make a decision on whether to craft an ETS, and to issue one if needed, by March 15. But the agency now appears likely to miss that deadline, and Conn said his expectation is that it will instead treat the day as its target to transmit a draft to the White House Office of Management and Budget for review.

“Fed OSHA can, it has the power to, mandate that those standards should be exactly the same,” attorney Eric Conn, a founding partner at the employer law firm Conn Maciel Carey, told Inside OSHA in a recent interview. “Right now, it is a nightmare. . . . Let’s come up with a single consistent requirement that we can all learn and apply everywhere.”

The U.S. Department of Labor (DOL) announced on January 29 that its Occupational Safety and Health Administration (OSHA) had issued stronger worker safety guidance. The new document—Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace—isn’t substantively different from the previous administration’s guidance, but “the tone is different,” Eric J. Conn, chair of law firm Conn Maciel Carey’s OSHA practice group, says.

Conn says guidance language from the Trump administration seemed to be “pretty explicitly nonmandatory,” but the new language has a different tone and seems useful if OSHA wants to use the General Duty Clause of the Occupational Safety and Health Act to cite employers.

The U.S. Department of Labor (DOL) announced on January 29 that its Occupational Safety and Health Administration (OSHA) had issued stronger worker safety guidance. The new document—Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace—isn’t substantively different from the previous administration’s guidance, but “the tone is different,” Eric J. Conn, chair of law firm Conn Maciel Carey’s OSHA practice group, says.

Conn says guidance language from the Trump administration seemed to be “pretty explicitly nonmandatory,” but the new language has a different tone and seems useful if OSHA wants to use the General Duty Clause of the Occupational Safety and Health Act to cite employers.

OSHA, EPA to Share Trade Secrets in Joint New Chemicals Work (1)

Bloomberg Law (January 12, 2021)

The Environmental Protection Agency and Occupational Safety and Health Administration released a memorandum of understanding describing how they would protect chemical manufacturers’ confidential business information from disclosure to the public, including competitors.

"The memorandum is a useful tool for OSHA," said Eric Conn, founding partner of Conn Maciel Carey LLP and chair of the firm’s national OSHA practice group.

"OSHA can share with EPA its worker health concerns about new chemicals and influence EPA’s regulations," he said.

Eric Conn, chair of the national OSHA workplace safety practice group at law firm Conn Maciel Carey, said "OSHA was getting a lot of really bad press about how aggressively they were responding to the virus...and as a show, as maybe for some theater, they have focused on healthcare, because it's easy."

"Healthcare might be seen as 'low-hanging fruit' for OSHA because the complaint data is there and virus risks are greater for workers directly dealing with infected patients," Conn said.

Under the Obama administration, the news releases “tended to be scathing, inflammatory, embarrassing for the company,” said Eric J. Conn, a lawyer who represents employers in OSHA enforcement actions and follows the department’s releases closely. “There was a lot of, ‘This company made employees choose between their lives and a paycheck, that sort of tone.’”

“What was really surprising to us was when the Trump administration started issuing press releases again, they maintained those D.O.L. and OSHA official quotations,” Mr. Conn added. “They were maybe marginally less inflammatory, but they still followed that same pattern.”

Michigan has enacted the second binding set of state-issued workplace standards in the United States for COVID-19 after the state’s high court struck down Gov. Gretchen Whitmer’s (D) executive orders aimed at curbing the pandemic, with the new rule setting broad mandates for employers as well as sector-specific requirements.

In an Oct. 19 blog post, the employer-focused law firm Conn Maciel Carey notes that the new rules could be “all the more important” if Whitmer signs a series of GOP-backed bills that include liability waivers for “employers that comply with MI OSHA guidelines.”

These States Aren't Waiting for the Feds to Create COVID-19 Worker Safety Rules

The Pew Charitable Trusts (August 19, 2020)

"Some aspects of the Virginia standard are already out of date," said Eric Conn, chair of the OSHA Workplace Safety Practice Group at Conn Maciel Carey, a Washington, D.C.-based law firm that represents employers.

For instance, the rules include a former CDC recommendation that employers use either symptoms or test results to judge when an infected employee can safely return to work. The latest CDC guidance advises employers to use only symptoms.  

And business groups worry that new regulations could lead to lawsuits.

“It’s not just a deregulatory agenda. It’s everything that OSHA does,” says Eric Conn, an employer-side attorney.

“We’re already experiencing the longest void in OSHA’s history without an Assistant Secretary of Labor for OSHA. Indeed, for most of the Trump Administration so far the front office has at OSHA has been almost entirely empty… no Career Deputy Assistant Secretary, no Special Assistants, no Chief of Staff until recently,” he says.

“Now, without a Secretary of Labor, it seems unlikely those spots will be filled anytime soon. All of that has a negative effect on OSHA’s ability to staff up, to set and execute clear goals on every front -- regulatory, deregulatory, enforcement, policy, etc."

In a recent blog post, Conn and Micah Smith, another attorney in the Conn, Maciel, Carey law firm, reiterate long-running concern that without key personnel in place, prospects that the administration would be able to repeal Obama-era rules dimmed considerably.

“Much more likely," they write, "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."

As a result, they write, “the ‘midnight’ regulations promulgated at the tail end of the Obama Administration appear likely to remain largely intact.”

 “California is in a lot of ways the experiment for a lot of what you see by federal OSHA,” says Eric Conn, an employer-side attorney with the law firm Conn Maciel Carey, based in Washington, DC.

“Cal/OSHA jumps in first in a lot of instances and demonstrates either the feasibility and efficacy of a regulation, or conversely, the infeasibility or lack of efficacy of a regulatory scheme. And you do often see federal OSHA follow behind Cal/OSHA in areas like this,” Conn told Inside OSHA.

“We do look at what Cal/OSHA does often as a precursor to some action federal OSHA will take sometimes a year or decade later. But it’s usually a bellwether for some action by federal OSHA.”

Eric Conn, of the law firm Conn Maciel Carey, which represents employers, says the likelihood of success of this legislative attempt to undo Trump's repeal of the Volks rule is slim.

“We already know what the president thinks of it,” Conn says of the bill’s attempt to reinstate the Volks rule. “So that’s why I think it has no chance of becoming law.”

Conn also notes that prior versions of the broader bill seeking to strengthen the OSH Act have failed to pass when Democrats controlled the House, Senate and White House during the early years of the Obama administration. “That would have been the time to pass it,” Conn says says, adding the Affordable Care Act was a greater priority for Democrats at the time.

Eric Conn, of the law firm Conn Maciel Carey, which represents employers, says the bill’s attempt to undo Trump’s repeal of the Volks rule are slim.

“We already know what the president thinks of it,” Conn says of the bill’s attempt to reinstate the Volks rule. “So that’s why I think it has no chance of becoming law.”

Conn also notes that prior versions of the broader bill seeking to strengthen the OSH Act have failed to pass when Democrats controlled the House, Senate and White House during the early years of the Obama administration. “That would have been the time to pass it,” Conn says says, adding the Affordable Care Act was a greater priority for Democrats at the time.

During a webinar last month, industry attorneys said OSHA will still need employers' permission to surveil properties using drones though they may be able to use information from drones in public areas to help determine whether to initiate an investigation.

However, Eric Conn, of the same firm, told the webinar that while OSHA needs to get permission from the employer to conduct a drone inspection, Conn added that the agency could observe hazards that are in “plain view” from a drone operating near an outside worksite.

“If they can observe conditions from across the street, he says, “why can't they take a drone in the sky and observe things from up there? I would not be surprised to see them push the limit in seeking consent.”

Conn suggests to his clients, especially those with outdoor worksites, to be cognizant of hazards. “If you have those outdoor workplaces where the conditions can be observed from public place, then you need to be more diligent,” he says.

Safety Agency's Sever Violator Inspections Down Under Trump

Bloomberg Environment (January 23, 2019)

Industry-side attorney Eric Conn, a founding partner at Conn Maciel Carey LLP in Washington, told Bloomberg Law he expects the severe violator program to continue in one form or another under the Trump administration. The program was initiated in 2010 by the Obama administration’s OSHA, replacing the Bush administration’s Enhanced Enforcement Program.

“There is always room for poster child enforcement, no matter who is in the White House,” Conn said.

One issue Conn said has stayed the same through Trump and Obama administrations is OSHA declaring companies to be severe violators while the employer challenges the citations in court.

“The day they issue you a citation, you are dropped into the bad actor bucket,” Conn said.   

“The lack of senior leadership at OSHA has remained a major obstacle in the deregulatory agenda,” says Eric Conn of the firm Conn Maciel Carey, which represents employers. “[Trump's] harsh talk of deregulation is not what we’re seeing,” he told a webinar late last year.

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“The career folks at OSHA, who are not political appointees, are running the show,” Conn says.

Based on OSHA’s increased budget, and continued use of enforcement programs during the last two years of the Trump administration, Conn tells employers to expect the same trend going into the next year.

Conn attributes record-high penalties in 2017 to OSHA implementation of the 2015 law that produced 218 significant cases, which are penalties totaling either $100,000 or more. That’s a 54 percent increase in significant cases from 2016, Conn says, adding that a Trump OSHA made the choice to use the 2015 penalty authority.

Conn, along with attorneys from his firm, reiterated that through the NEP initiatives, OSHA career officials have continued with their enforcement initiatives in the absence of a confirmed OSHA assistant secretary. Either way, Conn says he doesn’t expect OSHA to change course without a confirmed political Trump appointee.

“We have not seen the Trump administration make any changes to this emphasis program,” Eric Conn said of the January 2017 NEP on PSM, blaming OSHA's dearth of political leadership as allowing career staff to continue the Obama enforcement agenda unchecked.

Conn added that, “OSHA is sharing inspection findings with brother and sister [regulators] at EPA with the intent of triggering enforcement action at EPA where potential fines are much greater.”

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The Nov. 13 webinar “Process Safety Update: The Latest with OSHA PSM & EPA RMP” focused on a variety of factors affecting OSHA's PSM oversight at a time when the attorneys say the Trump administration has made good on its deregulatory approach by shifting the PSM update rule to its long-term agenda but failed to significantly curtail enforcement of the existing rule.

During the webinar, Conn said that Lisa Long, director of the office of engineering and safety in OSHA's Directorate of Standards and Guidance, had previously told the firm's Oct. 23 Process Safety Summit in Washington, DC, that while the rule is not currently advancing, staff continues to review public comments received in the summer of 2016 and from a June 2016 Small Business Advocacy Review (SBAR) panel, in advance of a possible future PSM update rule.

The U.S. Chemical Safety and Hazard Investigation Board (CSB) may have violated federal law last week when the agency approved a “major shift” in policy without formally inviting input from interested parties, labor attorney Eric J. Conn told The Daily Caller News Foundation.

“The biggest difference, if you look at [the board order], is how non-union workplaces are handled,” Conn, who chairs the national workplace safety practice of Conn, Maciel and Carey LLC, told TheDCNF Tuesday. “It may violate Administrative Procedure Act,” which governs how executive agencies implement new rules and regulations.

“This new addendum really creates this, almost like, ‘drop your tools and join in the CSB investigation, all are welcome,’ sort of mentality, which is not how other agencies handle this,” Conn continued. “It actually calls for a broader group of employees to participate rather than a representative employee.”

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Board Order 40a also changes how CSB investigators treat confidential business information that companies hand over to the agency while it investigates accidents.

“Ordinarily, that’s a decision that is made by the employer — how to identify documents that should be protected,” Conn said. “If you read this memo, the suggestion here is that those documents that the CSB deems on its own judgment to not be worthy of protection as confidential business information can and will be shared with employees during the investigation process.”

“I view it as a threat,” Conn told TheDCNF. “I mean I think the employers understand employees’ right to participate. Those rights are being expanded by this memo without rule making, and accompanying that expansion is a threat of, you know, retaliation.”

The U.S. Chemical Safety and Hazard Investigation Board (CSB) may have violated federal law last week when the agency approved a “major shift” in policy without formally inviting input from interested parties, labor attorney Eric J. Conn told The Daily Caller News Foundation.

“The biggest difference, if you look at [the board order], is how non-union workplaces are handled,” Conn, who chairs the national workplace safety practice of Conn, Maciel and Carey LLC, told TheDCNF Tuesday. “It may violate Administrative Procedure Act,” which governs how executive agencies implement new rules and regulations.

“This new addendum really creates this, almost like, ‘drop your tools and join in the CSB investigation, all are welcome,’ sort of mentality, which is not how other agencies handle this,” Conn continued. “It actually calls for a broader group of employees to participate rather than a representative employee.”

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Board Order 40a also changes how CSB investigators treat confidential business information that companies hand over to the agency while it investigates accidents.

“Ordinarily, that’s a decision that is made by the employer — how to identify documents that should be protected,” Conn said. “If you read this memo, the suggestion here is that those documents that the CSB deems on its own judgment to not be worthy of protection as confidential business information can and will be shared with employees during the investigation process.”

“I view it as a threat,” Conn told TheDCNF. “I mean I think the employers understand employees’ right to participate. Those rights are being expanded by this memo without rule making, and accompanying that expansion is a threat of, you know, retaliation.”

Eric Conn, whose firm Conn Maciel Carey co-hosted the summit, reiterated that view, telling Inside OSHA that “enforcement has creeped” up because the agency lacks a confirmed Trump nominee.

“These past two years have been a repeat of OSHA under Obama,” Conn says. He also added that OSHA has continued issuing press releases aimed at shaming employers that receive citations.

Conn says the purpose of the summit is to bridge the gap between regulators and industry as a way to limit the need for enforcement. “I hear about all the ways that process safety is evolving,” he says, “I hear about how much time is spent trying to anticipate regulatory backlash when the problem is found with outliers and it leads to industry distrusting regulators and regulators distrusting industry.”

“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,” the Conn say.  “The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission.”

Conn argues that the lack of a Trump-appointed Assistant Secretary of Labor for OSHA nearly two years into the administration has left OSHA staff to operate unchanged, and he adds that “change may not be on the near horizon.”

“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,” the Conn say.  “The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission.”

Conn argues that the lack of a Trump-appointed Assistant Secretary of Labor for OSHA nearly two years into the administration has left OSHA staff to operate unchanged, and he adds that “change may not be on the near horizon.”

In a Sept. 24 Tweet, Eric Conn, of the firm Conn Maciel Carey, notes that given staggered compliance deadlines of the Obama-era rule, the issuance of the court's expedited mandates triggers compliance with only certain provisions.

“Most of the requirements kick in later as designed in the original rule, but an immediate effective date does impact the 3-year Compliance Audit and Emergency Response Coordination,” Conn says.

After the court scrapped the Trump administration's delay of the RMP update last month, Conn wrote on his firm's website that while the pending revision of the RMP rule makes the rule's future unclear, the court's ruling vacating the delay is “of greatest concern” for employers' compliance with the rule requirements in the short run.

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Additionally, Conn said in his Aug. 17 post to his firm's website that EPA has until early October to petition for rehearing of the court's vacatur of the delay rule, and that employers had expected that compliance obligations would not kick in until after that date. He noted that an appeal could have further delayed the rule's effectiveness for several more months.

While the issuance of the mandate, triggers compliance with aspects of the rule, facilities have until March 15, 2021 to comply with other requirements, including controversial provisions calling for certain facilities to conduct third-party audits, analyze safer alternatives, and streamline disclosure of facility data to the public.

Getting Lockout/Tagout Compliance Right

EHS Today (September 12, 2018)

In a Sept. 24 Tweet, Eric Conn, of the firm Conn Maciel Carey, notes that given staggered compliance deadlines of the Obama-era rule, the issuance of the court's expedited mandates triggers compliance with only certain provisions.

“Most of the requirements kick in later as designed in the original rule, but an immediate effective date does impact the 3-year Compliance Audit and Emergency Response Coordination,” Conn says.

After the court scrapped the Trump administration's delay of the RMP update last month, Conn wrote on his firm's website that while the pending revision of the RMP rule makes the rule's future unclear, the court's ruling vacating the delay is “of greatest concern” for employers' compliance with the rule requirements in the short run.

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Additionally, Conn said in his Aug. 17 post to his firm's website that EPA has until early October to petition for rehearing of the court's vacatur of the delay rule, and that employers had expected that compliance obligations would not kick in until after that date. He noted that an appeal could have further delayed the rule's effectiveness for several more months.

While the issuance of the mandate, triggers compliance with aspects of the rule, facilities have until March 15, 2021 to comply with other requirements, including controversial provisions calling for certain facilities to conduct third-party audits, analyze safer alternatives, and streamline disclosure of facility data to the public.

During an Aug. 21 webinar, “Status and Future of OSHA's Policy of Public Shaming,” Eric J. Conn of Conn Maciel Carey discussed OSHA's practice of issuing critical press releases announcing enforcement actions.  Conn argued that the Obama OSHA stepped up use of critical press releases in enforcement, and that the Trump administration has failed to adequately rein in the approach.

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Echoing past criticisms, Conn said an ideal case for a lawsuit challenging OSHA's press release practice would be a company that is heavily criticized in a press release announcing an enforcement action, and where the allegations are later deemed false after the company has had a chance to defend itself. When that has occurred in the past, Conn says, critical press releases remain online.

“I think there is an opportunity to fix a broken, unlawful practice, but it will be expensive with no opportunity for monetary benefit,” Conn said, explaining why he has not yet filed the suit. “No one has stuck their neck out there, but I'm hopeful someone will do it.”

During an Aug. 21 webinar, “Status and Future of OSHA's Policy of Public Shaming,” Eric J. Conn of Conn Maciel Carey discussed OSHA's practice of issuing critical press releases announcing enforcement actions.  Conn argued that the Obama OSHA stepped up use of critical press releases in enforcement, and that the Trump administration has failed to adequately rein in the approach.

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Echoing past criticisms, Conn said an ideal case for a lawsuit challenging OSHA's press release practice would be a company that is heavily criticized in a press release announcing an enforcement action, and where the allegations are later deemed false after the company has had a chance to defend itself. When that has occurred in the past, Conn says, critical press releases remain online.

“I think there is an opportunity to fix a broken, unlawful practice, but it will be expensive with no opportunity for monetary benefit,” Conn said, explaining why he has not yet filed the suit. “No one has stuck their neck out there, but I'm hopeful someone will do it.”

“One primary reason that historically so few criminal cases have been pursued under the Occupational Safety and Health Act is that it is challenging to prove a criminal violation under the Act,” explained Eric Conn, an industry attorney of the firm Conn Maciel Carey, which represents employers, in a previous blog post.

“Combine that with the fact that, even with a conviction, the consequences are less significant than the consequences for many other white collar crimes and you end of with a situation where the criminal provision of the OSH Act is rarely employed.”

“One primary reason that historically so few criminal cases have been pursued under the Occupational Safety and Health Act is that it is challenging to prove a criminal violation under the Act,” explained Eric Conn, an industry attorney of the firm Conn Maciel Carey, which represents employers, in a previous blog post.

“Combine that with the fact that, even with a conviction, the consequences are less significant than the consequences for many other white collar crimes and you end of with a situation where the criminal provision of the OSH Act is rarely employed.”

The amount of time Mugno’s nomination has taken is surprising and disappointing, Eric Conn, a partner at the law firm Conn Maciel Carey LLP in Washington, said in a June 27 email to Bloomberg Environment June 27.

“It would be a real shame for this country to keep OSHA headless, and in particular to deny America’s workers a national safety leader as talented as Scott,” Conn said.

“The more the various agencies talk about this controversy, the more it becomes clear that none of the agencies, including fed OSHA that directed employers to act, and State Plans like Cal/OSHA that have advised their constituents to submit data, believe that fed OSHA’s direction is actually enforceable,” say attorneys Eric J. Conn, Dan Deacon, and Beeta Lashkari, of the firm Conn Maciel Carey, that represents employers, in a May 17 analysis.

“Therefore, we do not recommend employers in those states submit data until it is legally required. OSHA has already announced it is using the data collected to target enforcement resources. No employer would 'report' to OSHA an injury that does not meet the reporting criteria, so why would an employer submit injury data to OSHA when no regulatory requirement exists?”

Eric Conn, an industry attorney of the firm Conn Maciel Carey reacted to the news on Twitter: “This is unexpected news. I have been very impressed with Chairwoman Sutherland’s leadership at the @chemsafetyboard. She really helped heal an environment of distrust between the CSB and employer community. Hopefully the agency continues on that path after she leaves.”

OSHRC does not normally request filings for amicus briefs in cases, says Eric Conn, an industry attorney at the firm Conn Maciel Carey. He says that it seems the Commission “intends to part with the ALJ's decision and that they want more evidence in the record in support of that.”

Conn adds that when the Commission does request filings, it's typically in general duty cases that would have a significant impact on a lot of different industries and that “it's obvious on its face that this case would have a broader impact on other industries.”

Eric Conn, an industry attorney at the firm Conn Maciel Carey, that represents employers, says that because of delays in confirming the Trump administration's nominees, “OSHA is operating at a suboptimal pace.” 

“Mugno does not fall into the Scott Pruitt mold,” Conn added, questioning why nominees to enforcement positions like Mugno, have faced delays in their confirmations.

He adds that “Scott is the wrong guy and OSHA is the wrong agency for Democrats to play this game with,” pointing to Mugno's tenure as a FedEx safety executive and the need for agency leadership to implement policy priorities.

Eric Conn, an attorney with the firm Conn Maciel Carey, which represents employers, says that the working group's focus on notifying first responders of “serious” OSHA violations would be the “wrong trigger” because such violations do not necessarily reflect greater facility risks.

“My reaction is that tying it to any 'serious' violation will result in misplaced energy, it's extremely ubiquitous. A serious violation does not characterize a bad actor, nearly everything is characterized as serious,” Conn says, adding that what citations may mean for workplace safety is often misunderstood.

Eric Conn, an attorney with the firm Conn Maciel Carey, which represents employers, says that the working group's focus on notifying first responders of “serious” OSHA violations would be the “wrong trigger” because such violations do not necessarily reflect greater facility risks.

“My reaction is that tying it to any 'serious' violation will result in misplaced energy, it's extremely ubiquitous. A serious violation does not characterize a bad actor, nearly everything is characterized as serious,” Conn says, adding that what citations may mean for workplace safety is often misunderstood.

“The law has always been clear that there is no statutory limitation on the length of time that a prior citation may serve as the basis for a repeat violation,” Eric Conn, a safety and health attorney at Conn Maciel Carey LLP in Washington, told Bloomberg Environment. But the Obama administration was more aggressive in seeking repeat citations and the higher penalties they carry, he said.

In a two-part blog series, we sat down with Eric J. Conn, Chair of the OSHA ● Workplace Safety Practice Group at Conn Maciel Carey LLP, to talk about significant OSHA issues employers should watch in 2018.

Here’s what we learned employers should be following from OSHA in the coming months:

One of the biggest things employers are watching is how the enforcement philosophy of OSHA will change. “I’m going to be paying a lot of attention this year to what OSHA does on the enforcement front and on the compliance assistance front,” says Conn.

Firms Urged to Await Rule Changes Before Filing New OSHA Reports

Inside OSHA (January 29, 2018)

“Although the web portal is now accepting 2017 data, we encourage employers to wait until close to the July deadline to submit data, because the rule itself may change and the deadline may be pushed to allow more time for OSHA to change the rule,” Eric Conn, an industry attorney at the firm, Conn Maciel Carey, which represents employers, wrote in a Jan. 23 post to the firm's blog, the OSHA Defense Report.

“If we were all expecting big changes at OSHA, this might not be the case,” said Eric Conn, an industry attorney at the firm Conn Maciel Carey, which represents employers, during a Jan. 16 webinar. “While this could be reflective of the career officials currently running OSHA, it also indicates OSHA won't shift from enforcement regardless of what administration is running the White House.”

“If we were all expecting big changes at OSHA, this might not be the case,” said Eric Conn, an industry attorney at the firm Conn Maciel Carey, which represents employers, during a Jan. 16 webinar. “While this could be reflective of the career officials currently running OSHA, it also indicates OSHA won't shift from enforcement regardless of what administration is running the White House.”

“If we were all expecting big changes at OSHA, this might not be the case,” said Eric Conn, an industry attorney at the firm Conn Maciel Carey, which represents employers, during a Jan. 16 webinar. “While this could be reflective of the career officials currently running OSHA, it also indicates OSHA won't shift from enforcement regardless of what administration is running the White House.”

The Occupational Safety and Health Administration (OSHA) also does not usually impose maximum penalties, according to Eric Conn, an attorney with Conn Maciel Carey in Washington, D.C.

The largest increases in OSHA penalties were for violations that already had the highest fines, such as for willful and repeat violations.

“My sense is, at this moment in time, the most vulnerable elements [of RMP] are all of them,” Eric Conn, of Conn Maciel Carey told a Dec. 12 webinar. The proposed revision to the rule “is likely to be a complete withdrawal, rescinding the amendments that were advanced.”

“There is a lower level of staff at OSHA since the last three years, but the interesting thing is that fiscal year 2017 saw an increase in inspections,” said Eric Conn, of the law firm Conn Maciel Carey, which represents employers. “There is a strain of resources at the agency, but we saw an uptick of inspections, and because of the new penalty authorization, the results of the inspections are leading to bigger cases.”

“There’s a lot employers should know about the changes to the E-Recordkeeping Rule, and there are steps they can take now,” says Eric J. Conn, Chair of the OSHA Workplace Safety Practice Group at Conn Maciel Carey.

We sat down with Conn to talk about the basics of OSHA’s new Electronic Injury and Illness Recordkeeping Rule and what employers should know going forward.

Eric Conn of the firm Conn Maciel Carey, which represents industry clients, said that OSHA's “moving target of a deadline” and “confusion with staffing agencies about who is required to submit information on temporary employees,” have created an unfair environment for employers who “are trying to learn this technology for the first time.”

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Micah Smith, an attorney with Conn Maciel Carey, tells Inside OSHA that the language indicates OSHA is “moving in the direction that they will change their plans to publish the information in the future.”

Eric Conn, of the firm Conn Maciel Carey, which represents industry clients, said in response to Barab's comments that “it's irresponsible to paint” all of the administration's nominees “with such a broad brush,” and that President Donald Trump's appointments to the Labor Department (DOL) have been distinctly more qualified than some of the more controversial nominees brought before other agencies.

“There seems to be a clear distinction with the appointees at the Labor Department than we've seen at other agencies, such as EPA. The appointees seem to be experienced, knowledgeable, government servants or professionals in their industry,” Conn told Inside OSHA in a Dec. 14 interview. “Mugno exemplifies the unique nature of the appointees we've seen at DOL. He's not a part of this revolving door of conservatives we've seen, he's been a safety professional his entire career. He's not doing it to serve Donald Trump, but to serve his country.”

During a webinar last month, “OSHA's Fatality, Hospitalization & Amputation Reporting Rule: Lessons Learned,” Eric Conn, of the firm Conn Maciel Carey, which represents industry clients, cautioned employers that it would be a “mistake” to report incidents via the online portal created by OSHA after the 2015 update.

“What you put in writing may be used against you in OSHA enforcement action or a personal injury lawsuit,” industry lawyers explained during the webinar. “It's too soon to know enough to commit in writing an incident description.” Conn recommended to instead call the agency when making a severe injury report, because it usually requires reporting fewer details about the incident.

In Clearing Delay Rule, White House Upholds OSHA Reporting Deadline

Inside OSHA (November 21, 2017)

Eric Conn, of the law firm Conn Maciel Carey, which represents employers, told Inside OSHA Nov. 16 that he expects the Trump OSHA, in a future proposed rule, will seek to limit the rule's reporting requirements, by scaling back the types of injury forms required for submission and to further limit reporting by narrowing the definition of high-hazard industries.

Industry Attorney Expects Trump OSHA To Limit Reporting Of Injury Data

Inside OSHA (November 20, 2017)

Eric Conn, of the law firm Conn Maciel Carey, which represents employers, tells Inside OSHA in a Nov. 16 interview that the Trump administration will likely seek to reduce the types of injury forms required for submission under the Obama-era rule and further limit reporting by narrowing the definition of high-hazard industries.

He said the Trump OSHA will most likely weaken the rule's requirement that establishments with 250 or more employees submit data from OSHA 300 Logs, 301 Incident Reports and 300A annual summaries, to require those companies to submit only the 300A annual summaries.

The case is a marker for the agency’s increased emphasis on holding employers with multiple locations responsible for repeat violations when it cites similar violations at related workplaces, Eric Conn, a safety and health attorney with Conn Maciel Carey LLP in Washington, told Bloomberg Environment.

Combined with the agency’s new civil penalty authority, the policy has increased the number of repeat citations and bumped up their price tag to a $126,749 maximum per violation, he said.

Before 2008, Conn said, the agency treated each workplace as an individual establishment, limited its review of past violations to three years, and was less likely to revisit a workplace within a few years. But now the look-back period is five years and covers multiple locations, and the agency selects inspection targets with past violations to find more repeat violations, he said.

The policy change “hasn’t been touched” by the new OSHA leadership under President Donald Trump, Conn said.

In Oct. 30 blog post, Eric Conn, of the firm Conn Maciel Carey, which represents employers, says Mugno's experience overseeing safety efforts at hundreds of Fedex Ground facilities with thousands of employees brings unique perspective to the job.

“Moving into the regulator’s seat with a real understanding of the practical side and challenges of managing a safety program, managing employees’ participation in safety, and managing the business side of safety, can only improve OSHA’s relationship with the regulated community and its ability to effectively carry out its safety mission,” Conn says.

Trump to Tap FedEx Safety Chief to Lead OSHA

Bloomberg BNA (October 27, 2017)

Eric Conn, chairman of the workplace safety group at the law firm Conn Maciel Carey LLP, told Bloomberg Environment that Mugno would bring an important perspective as a corporate safety official and former regulatory lawyer to OSHA if confirmed.

According to Conn, who said he’s known Mugno professionally for more than 10 years, Mugno would focus on ways to reduce burdens to employers without compromising safety.

“I’ve heard him say about this opportunity, that should he be so fortunate to get the opportunity, that he views this job essentially as America’s safety director—all of America’s workers,” Conn said. “He would have the same commitment to them that he’s had to the employees of FedEx.”

In a Sept. 19 blog post attorneys Eric Conn and Dan Deacon, of the firm Conn Maciel Carey, which advises employers, advise that the Obama-era OSHA Electronic Injury Recordkeeping Rule still faces numerous obstacles to full implementation.

“The rule and/or the deadline to submit data could be further impacted by another rulemaking OSHA is expected to initiate to revisit the rule, by the legal challenges already filed against the rule, or by the Congressional Appropriations process,” the attorneys say.

Previously, employers had been required to prepare their OSHA logs, post them at the workplace for employees and unions to examine, and keep them in HR files for five years. The only time they shared the information with OSHA was if there was an active inspection or if they were asked by the Bureau of Labor Statistics or OSHA to participate in annual injury surveys, noted Eric Conn, an attorney with Conn Maciel Carey in Washington, D.C. A randomly selected, rotating set of employers participated in the surveys. He said that even if employers had to participate, historically they were sharing only their 300A forms. Now under the electronic rule, employers will have to show their data every year, unless the requirements are rescinded. Conn thinks they may be scaled back with just the 300A summary information being required and not the full 300 or 301.

Eric Conn, founding partner, Conn Maciel Carey L.L.P. based in Washington, predicted the agency would at least shift away from requiring the submission of these forms.

“I think this is not a new concern, everybody has been concerned about the protection of that data, but the fact now that literally two weeks after the database goes live, there is a real security breach issue slapping the agency in the face, I think that is going to only heighten that concern and make it more likely that they change to basically say ‘no matter the size of the employer, no matter the year, all we want from you is 300A data,’” he said.

However, eventually the rule mandates the sharing of more detailed employee records, which include names and sensitive health information, Eric J. Conn, chair of the OSHA practice at Conn Maciel Carey in Washington, told Bloomberg BNA.

“OSHA has stated repeatedly that their intent is to scrub personal identifying information from what they intended to publicize, but stakeholders have expressed concerns about what has now happened,” Conn said, referring to the potentially compromised data. His practice represents industry clients subject to OSHA enforcement actions.

When the federal agencies released their regulatory agendas on July 20, stakeholders ostensibly got their first peek into the new administration’s plans for regulation — and deregulation.

 

But the to-do list from the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) may not tell the full story. The inclusion of some items (and exclusion of others) may be little more than an oversight, says Eric J. Conn, a founding partner at Conn Maciel Carey and chair of the firm’s OSHA workplace safety group.

Attorneys with the firm Conn Maciel Carey, LLP, which represents employers, said in a Sept. 7, 2016 blog post, that Obama OSHA efforts under the agency's Temporary Worker Initiative were based largely on a theory of joint responsibility between a staffing agency and the host employer.

The Trump administration will “not have much of an appetite” for promulgating new rules, as demonstrated by the executive order and comments made in February by White House Chief Strategist Stephen Bannon about the deconstruction of the administrative state, said Eric Conn, chair of the OSHA workplace safety group for law firm Conn Maciel Carey L.L.P.

“The focus of this new administration is on deconstruction, not construction, so I would be terribly surprised to see any of these rules advance from where they are now,” he said.

Industry attorneys are detailing a strategy for securing new interpretations of OSHA rules that are favorable to employers and suggesting a slew of policies as possible targets, arguing that President Donald Trump's deregulatory orders and a recent court ruling create a favorable environment for such requests.


“It's a new administration, and it's a new world order,” employers' attorney Eric Conn told a June 6 webinar, noting early Trump administration deregulatory steps. “Now is a unique environment, and perhaps a more receptive audience at agencies like OSHA to employers' views about how regulations ought to be interpreted.”


During the webinar, “OSHA Interpretations and Variances: Regulatory Strategies Resurrected in a Trump Administration,” Conn and Kate McMahon, both of Conn Maciel Carey, outlined approaches for persuading OSHA to issue favorable interpretations of agency rules and to grant exceptions, or variances, through a rarely-used procedure authorized under the Occupational Safety and Health (OSH) Act.

Industry Eyes Acosta's Confirmation As Chance To Begin OSHA Rollback

Inside OSHA (June 2, 2017)

Employers' attorney Eric Conn told a May 24 Comply Ethic's “Masters of Disaster Podcast re: Managing OSHA Compliance in the Trump Administration,” that Acosta's April 28 swearing-in as head of the department that oversees OSHA gives employers a window for addressing their grievances, even though a new OSHA chief has not been appointed.

“This is an opportunity for employers to look at OSHA compliance from an offensive standpoint rather than the defensive posture we've been in in the last eight years,” Conn, of the firm Conn Maciel Carey, told the podcast. “If there's an interpretation on the books that we don't think is right, and we think there is a more reasonable interpretation, let's pursue it.”

Eric Conn, of the firm Conn Maciel Carey, says that the plaintiffs' lawsuit seeking to force disclosure validates industry and Trump administration concerns that the Obama administration failed to adequately protect facility data.

“The last iteration of the RMP rule did not do enough to balance the interest in protecting information” that could pose a security risk if released, Conn said. The lawsuit “highlights the need to take a harder look at the rule.”

What happens to the petition?

“If review is granted, we can expect it to sit in abyss until there is a quorum,” Eric Conn, chair of the OSHA workplace safety group at Conn Maciel Carey LLP, told Bloomberg BNA. “Once there is a quorum, the commission can return to issuing opinions if both agree.”

Industry Expects Trump To Launch Broad Deregulatory Attack On OSHA

Inside OSHA (March 29, 2017)

Attorneys with the firm Conn Maciel Carey, who advise industry, told a March 28 webinar that administration officials' recent statements and court filings suggest they are planning to significantly scale back OSHA rules and authority once a Labor Department nominee is confirmed, and political leadership is appointed to run OSHA.

“Since the campaign the administration has focused on decreasing regulation and keeping government out of the workplace,” Dan Deacon said, adding that states could take on a greater role for enforcing workplace safety violations.

 

Eric Conn, another lawyer at the firm, added that Trump's recently-issued budget blueprint, which calls for slashing DOL's budget by $2.5 billion, a 21 percent cut, includes $2 billion in unspecified cuts that DOL could potentially use to dock OSHA enforcement, rulemaking, or whistleblower protection efforts.

In a March 27 blog post, Andrew J. Sommer and Eric J. Conn of the firm Conn Maciel Carey, which advises employers, say the new California rule will create significant new burdens on healthcare employers.

“The myriad, intricate requirements under these regulations present a significant compliance burden for health care employers,” the lawyers says. “[T]his regulation provides DOSH ample opportunity to barrage employers with citations for violations related to a failure to establish, implement and/or maintain Plan requirements, or to provide the necessary training, and of course, to second guess judgments made by employers after incidents occur.”

Since 2010, commercial operators have gotten the message that they need to comply and most have done so, attorney Eric Conn told Bloomberg BNA March 23. Conn, a partner at Conn Maciel Carey LLP in Washington, has represented silo operators and speaks often at grain industry gatherings.

While recommending that OSHA retire its Grain Handling Regional Emphasis Enforcement Programs, Conn pointed out that most of the incidents reported by Purdue over several years occurred at small farms and other sites that aren't covered by OSHA. Federal law exempts most farms with 10 or fewer employees from having to comply with agency rules.

A more effective safety program would stress educating farmers and other OSHA-exempt grain facility managers and workers, Conn said.

Conn Maciel Carey Named Top Author in JD Supra Readers' Choice Awards 2017

JD Supra - Top 10 in Food & Beverage Industry (March 24, 2017)

JD Supra’s annual Readers' Choice awards recognize firms and authors who achieved the highest visibility and engagement for their written analysis and commentary on our site.

Many top Republican appropriators have signaled the administration's proposal is not likely to be enacted in anything close to what the administration is requesting. And one observer says the more drastic cuts than many expected are likely designed to ensure that any final budget includes significant reductions for OSHA, EPA and other agencies.

“This is an opening gambit and pretty extreme,” said Eric J. Conn of the firm Conn Maciel Carey, which represents employers. “It is very likely that this was intended to create such an extreme starting point that any compromise still results in significant cuts.”

Higher Manslaughter Penalties Sought Against Employers

Engineering News-Record (March 8, 2017)

While advocates for increased state manslaughter fines argue that they deter employers from committing violations, Eric Conn says reforming U.S. Occupational Safety and Health Administration penalties is a better way to check bad safety cultures. A Washington, D.C.-based lawyer who has defended companies against OSHA allegations, Conn says manslaughter charges are not designed to regulate workplace safety and OSHA is better equipped to investigate jobsite deaths.

“Adding 50 criminal enforcement models state by state has the opportunity for inconsistent application and non-experts trying to enforce legal requirements that are outside their expertise,” Conn says. 

Eric Conn, an attorney with Conn Maciel Carey in Washington, D.C., told SHRM Online that OSHA's rule is an express effort by the agency to circumvent a court ruling that limited the citation period to six months.

Eric Conn of Conn Maciel Carey describes OSHA’s controversial “Volks Rule” as unsustainable and suggests that the policy could be overturned due to several “obvious flaws.”  He also explains why the CRA resolutions efforts are not likely to succeed.

“It may be an uphill battle to get [the CRA] done in time because Senate Republicans are likely to be very cautious in using the CRA to undermine any labor-related rules while they are still fighting the Senate Democrats to get a Secretary of Labor confirmed,” he says.

In the waning days of the Obama Administration, the Occupational Safety and Health Administration (OSHA) promulgated a new rule purportedly “clarifying” employers’ continuing duty to correct injury and illness recordkeeping logsfor the entire five-year period that logs must be kept. See 81 Fed. Reg. 91,792 (Dec. 19, 2016). The final rule, dubbed the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” amended OSHA’s existing recordkeeping regulations in order to circumvent a 2012 decision of the United States Court of Appeals for the District of Columbia in AKM LLC v. Secretary of Labor (Volks II), 675 F.3d 752 (DC Cir. 2012). This “clarifying” rule should be repudiated.

Business groups contend that federal regulations are weighing down the economy. According to Eric J. Conn, a Washington D.C. attorney who specializes in defending OSHA cases, government rules “when taken collectively, can stifle job growth.”

It is significant given that the agency has used press releases – and the fear of negative publicity – as a major cudgel against companies, said Eric Conn, a Washington, D.C.-based lawyer who has defended companies against OSHA allegations.

 “They (OSHA) see the press releases as being more impactful than the final outcome of these cases,” Conn said. “Employers are very afraid of being blasted by OSHA in the media.”

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) probably will continue to lean on guidance documents to enforce violence prevention requirements, as it has in the past, according to Eric Conn, a founding partner of Conn Maciel Carey and chair of the firm’s national OSHA Workplace Safety Practice Group.

Eric Conn, of the law firm, said Trump's OSHA also will likely delay the rule's initial July compliance deadline for reporting of worker injury and illness data, and could scrap plans for posting the data online.

“The idea that this data will be published is in question,” Conn said. “If I had to guess, I think they will maintain this rule, and the data collection but not publish it online” because of widespread industry opposition.

Significant changes to Obama-era rules are unlikely to occur while Trump's nominee to head the Department of Labor, Andrew Puzder, head of burger chains Hardee's and Carl's Jr., is awaiting Senate confirmation. The Senate Committee on Health, Education, Labor and Pensions is scheduled to hold a hearing Feb. 7.

Once in place, Trump appointees to lead OSHA could quickly rescind the agency's 2013 memo interpreting federal law as allowing union officials to accompany agency compliance officers on inspections of non-unionized work sites.

Eric Conn, of the law firm Conn Maciel Carey, says several major OSHA rules that have already taken effect have initial compliance dates that have yet to occur. He raised the prospect that such rules could either be delayed by the recent memo or other future Trump administration actions.

OSHA Under Trump: A Closer Look

Safety + Health Magazine (January 20, 2017)

“Typically, OSHA is not the highest priority agency or one of the agencies that gets a lot of attention early in an administration,” said Eric J. Conn, a founding partner of Washington-based Conn Maciel Carey LLP and chair of the firm’s OSHA Workplace Safety Practice Group. “I think this could be a unique new administration that does pay some amount of attention to OSHA in the early days because he’s familiar with it.”

“You are dumped into SVEP essentially the day that the citations are issued and a citation is nothing more than an allegation,” said Eric J. Conn, a Washington, D.C.-based attorney who specializes in OSHA defense cases. “Having the federal agency that is responsible for safety and health branding that employer as a bad actor … absolutely has significant consequences to the employer’s business.”

Eric J. Conn, of the firm Conn Maciel Carey, which advises employers, said that companies have no way of challenging CSB findings when they are incorrect, which can complicate a subsequent DOJ criminal investigation. “They are now essentially operating under one umbrella,” Conn said referring to any federal investigator. “Treat one investigation with the same care you would as if was DOJ sitting across the table from you.”

Several industry attorneys say President-elect Donald Trump will likely seek to roll back many OSHA rules issued under the Obama administration, though it is unclear when Trump's administration will start that effort and which of the wide range of tools it will employ, given Trump's lack of specific statements on OSHA during the campaign, and other priorities. Trump's campaign promise to drastically cut federal regulation puts his administration on a collision course with the Obama OSHA.

President-elect Donald Trump's experience as a real estate developer makes OSHA a likely early target for the new administration's efforts to roll back regulation, including a possible moratorium on new rules, efforts to repeal recently-issued ones, and return to a Bush-era focus on workplace safety compliance assistance over increased regulation, according to an industry attorney.

Eric Conn, a founding partner of Washington D.C. law firm Conn Maciel Carey, PLLC, says the hospitality industry needs to be on particularly high alert about this issue because the very first attempt by OSHA and organized labor to capitalize on OSHA’s new interpretation involved the Service Employees International Union, which accompanied OSHA inspectors to an inspection at three facilities under contract with a non-union janitorial services employer.

 

“Since union representatives have now started accompanying OSHA agents to inspections, employers need to make their managers aware of this possibility and prepare them how to respond,” he says. “It is very important for employers to take control of the situation before the inspection begins.”

Listen to Your Audience. This is the single principle that virtually all of our experts mentioned. Eric Conn, of Conn Maciel Carey LLP, is an attorney and head of the firm’s OHSA/Workplace Safety Group. His advice? “Listen to your clients.  Selecting webinar topics based on questions from your clients serves multiple purposes. One, it shows your existing clients that you are listening to them. It also validates to them that their questions are valuable. Speaking on a subject that you have just researched in order to answer your client’s questions allows you to leverage that knowledge for broader impact. Finally, and most importantly, if your clients are asking questions about a particular topic, then there are countless other potential clients in that same space with the same questions.”

The federal court ruling blocking OSHA and other agencies from implementing an executive order requiring consideration of safety and other labor law violations in federal procurement decisions could boost lawmakers' efforts to gut the policy, but also suggests the rule is on shaky legal footing and so congressional action may be unnecessary, industry lawyers and other observers say.

“[The ruling] certainly calls into question the legitimacy of the rulemaking process that was followed, so it would give some additional cover to those in Congress that are trying to scale back the rule,” Eric Conn, a lawyer who represents employers in OSHA matters, told an Oct. 25 webinar.


But Conn noted that plaintiff's successful bid for a preliminary injunction also suggests that lawmakers' efforts to shield defense contractors from the policy's provisions may not be necessary, because an industry victory in the suit, which an injunction suggests is likely, would protect all sectors.

No More Pizza Party Rewards for Safe Work

HR Daily Advisor (October 12, 2016)

The Occupational Safety and Health Administration’s (OSHA) new e-record-keeping rule, formally titled “Improve Tracking of Workplace Injuries and Illnesses,” has created quite a stir for employers. The rule requires employers to electronically submit their injury and illness data, which the agency will then publish online for all the world to dissect. That’s a dramatic change from the historic internal-only use of OSHA 300 logs. It turns out, however, that the electronic records requirements may not be the most controversial provisions of the new rule.

An attorney who advises employers on OSHA policies says the pending industry challenge to the agency's new injury and illness reporting regulation is sufficient “to the kill rule,” though the attorney is still urging companies to comply with the rule's controversial provisions aimed at deterring retaliation against employees who report injuries.


“[E]mployers should understand how this new Rule will affect their programs, and begin to prepare to make changes if a preliminary or permanent injunction is not forthcoming before November 1st or otherwise,” Eric Conn, of the firm Conn Maciel Carey, says in an Aug. 29 blog.


His comments come as several industry trade associations are challenging the so-called anti-retaliation provisions of OSHA's recently-issued worker injury reporting rule, and have requested preliminary injunction against enforcement of those provisions.

During an Aug. 16 webinar, Eric Conn, of the firm Conn Maciel Carey PLLC, said OSHA has stepped up enforcement at multi-employer work sites in recent years under its initiative to improve protections for temporary workers, and that the effort will likely inform more targeted enforcement against certain industries in the near future.


“Generally OSHA learns and gathers data about an issue, and then after they have learned enough, they launch a national emphasis program or regional emphasis program,” Conn said. “Look for that in the next year or two.”

As the concern about Zika and other mosquito-borne diseases increases, so too has the use of chemicals, whether it be for personal use or with treatments to entire work areas, said Eric Conn, chair of Conn Maciel Carey PLLC's OSHA and workplace safety practice.

In some cases, this can create additional obligations for employers under OSHA.

For example, employers who use a large amount of hazardous chemicals might be required to establish a respiratory protection program. For those that haven’t already done so, this can be a burdensome process that involves medical evaluations and additional training for employees.

“If mosquitoes are a real issue for your employees, then it’s probably a good practice,” Conn said. “But along with that practice comes a handful of other OSHA obligations.”

Staggering Hike in OSHA Civil Penalties Is Here

Fortney & Scott (August 8, 2016)

On June 30, 2016, the U.S. Department of Labor (DOL) issued an interim final rule to implement the Federal Civil Penalties Inflation Adjustment Improvements Act, passed last fall as part of the highly publicized bipartisan budget deal negotiated between the Republican-controlled Congress and the White House. Employers have a short window—until August 15—to submit comments on the penalty increase rule.  In an Aug. 3 blog, attorneys Eric Conn, Amanda Strainis-Walker and Bryan Carey, of Conn Maciel Carey, a firm that represents employers, note that the three OSHA memos followed the Supreme Court's ruling.

The D.C. Circuit is expected to rule shortly on agricultural retailers' challenge to the third memo, narrowing a PSM exemption for retailers. The ruling could set a precedent indicating how appellate courts will interpret the Supreme Court's March 2015 ruling in Perez v. Mortgage Bankers, which eased procedural requirements for administrative agencies. The ruling held that agency's “interpretive rules” or “administrative interpretations” do not require formal rulemaking, overturning long-standing D.C. Circuit doctrine.

In an Aug. 3 blog, attorneys Eric Conn, Amanda Strainis-Walker and Bryan Carey, of Conn Maciel Carey, a firm that represents employers, note that the three OSHA memos followed the Supreme Court's ruling.

OSHA Civil and Criminal Penalties on the Rise

Feed & Grain Magazine (June 29, 2016)

For the first time in a quarter century, monetary fines for violations of federal Occupational Safety and Health Administration’s (OSHA) workplace safety and health standards are set to increase.

With the increased focus on holding employers accountable criminally and the fact that OSHA is already scrutinizing the grain industry (declaring all grain related hazards to be “high emphasis hazards”), OSHA will likely be on the lookout for opportunities to pursue criminal charges in grain industry fatality cases.

All Sticks and No Carrots In Sight, OSHA's New Injury Tracking Rule, Eric Conn Explains

Comply Ethic's Masters of Disaster Podcast (June 21, 2016)

Eric J. Conn explains on the Masters of Disaster podcast last month’s breaking news, OSHA issued a new final rule to “Improve Tracking of Workplace Injuries and Illnesses,” which requires hundreds of thousands of employers to submit electronically to OSHA their injury and illness record keeping logs (and in many instances, their detailed incident reports). More importantly, for no apparent safety reason, OSHA intends to publish employers’ injury data and incident reports online.  We discuss the possible consequences for employers and compliance difficulties.

An industry attorney is casting doubt on the prospects that expected legal challenges will succeed in blocking OSHA's new electronic record-keeping and reporting rule for worker injuries, noting the agency has broad authority to require record-keeping.


During a June 7 webinar on OSHA's May 12 rule revising its “Recording and Reporting Occupational Injuries and Illnesses” regulation, attorney Eric Conn said he expects the rule will impose unnecessary new burdens and obligations on employers and will lead to increased use of company records in enforcement actions.


But he suggested that lawsuits, expected to be filed in the coming weeks to overturn the rule, are unlikely to succeed.

Whistleblower - SVEP OSHA Program to Shame Employers Accused of Retaliation

Bloomberg BNA (June 2, 2016)

Employers accused of retaliating against workers who report health and safety violations will be named and shamed under a new pilot whistle-blower-Severe Violator Enforcement Program being rolled out in the Occupational Safety and Health Administration's Kansas City Region, the agency said May 31.  The program, which is modeled on OSHA's Severe Violator Enforcement Program, is aimed at employers that “continually and willfully disregard the rights of whistle-blowers” who report unsafe working conditions and violations of the law, OSHA said in a statement.

​“This is a terrible program, not unlike its predecessor, the Severe Violator Enforcement Program in OSHA's main regulatory area,” said Eric J. Conn, chairman of the OSHA Practice Group with Conn Maciel Carey PLLC in Washington, D.C. “The new program appears to have the same due process deficiencies and unfair provisions that I have complained about in the old one, provisions that are, if not unlawful or unconstitutional, certainly bad policy.”

The U.S. Occupational Safety and Health Administration (OSHA) will now require about 750,000 employers to submit detailed annual reports of workplace injuries and illnesses for publication online. The rule, announced May 11, takes effect Aug. 10, with initial reports due to be filed electronically in 2017.

 

Critics have said the publication of injury and illness reports would lead to public shaming of businesses for incidents that in some cases are outside of their control. This is information that employers already collect and is typically revealed to OSHA only during inspections or surveys. OSHA said it will cleanse the data of personal identification before posting it on the Internet.

 

Firms that are covered by OSHA’s record-keeping regulations and that have more than 250 employees—and businesses with at least 20 employees in certain high-risk industries—will be required to file the reports. States with their own occupational safety and health laws must adopt “substantially identical” provisions within six months, OSHA said.

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

Bloomberg BNA (May 9, 2016)

Chemical manufacturers, petroleum refiners and others are closely tracking coming changes to the Environmental Protection Agency’s Risk Management Program Rule. Expected changes include increased frequency and scope of compliance audits, a narrowed pool of eligible auditors, and requirements for employers to evaluate the existence and feasibility of adopting ‘‘inherently safer technologies’’ as part of process hazard analyses. Eric J. Conn of Conn Maciel Carey PLLC discusses the development of the revisions to the rule, their impact on employers and the pressure on the EPA to finalize the changes by July 2016 to avoid invocation of the Congressional Review Act.

OSHA's New Recordkeeping Rule to Publicly Shame Employers

Safety First Consulting (May 9, 2016)

In a highly controversial move that arguably has nothing to do with enhancing workplace safety, OSHA amended its recordkeeping regulation that requires employers with 250 or more employees to submit OSHA 300 Logs, OSHA 301 forms, and OSHA 300A summaries electronically. Select employers in high hazard industries with 20 – 249 employees must submit OSHA 300A summaries electronically as well under the amended regulation.

Eric Conn, founder of Conn, Maciel, Carey, a law firm specializing in OSHA law, says, “OSHA does not have the capacity to do anything productive with this data. Such volume for such a small-budget agency could not possibly be useful in helping OSHA develop policy, target enforcement resources, or implement any program that advances safety and health. The sole purpose of this data collection has to be, therefore, to publicly shame employers based on injury data that was never intended to be a performance metric. Specifically, OSHA intends for the data to harm employers by:

  • Discouraging consumers from doing business with them

  • Thwarting contracting opportunities with customers

  • Providing ammunition to organized labor for organizing campaigns or at the bargaining table
  • Scaring off current and prospective employees
  • Eliminating access to business loans
  • Negatively impacting insurance coverage and rates

OSHA appears poised to issue its controversial electronic recordkeeping and reporting rule, one of only two rules the agency is expected to issue before the end of the Obama administration, after the White House Office of Management & Budget (OMB) approved the measure April 29.

The rule's expected issuance in the coming days appears likely to prevent critics in the next Congress from seeking a Congressional Review Act resolution to overturn the regulation. Many observers agree that the law's provisions will likely only allow lawmakers to use its privileged procedures in the Senate to challenge rules promulgated after May 16.

But the regulation will almost certainly draw legal challenges from industry and other critics, who charge OSHA lacks legal authority for the rule's burdensome and overly broad requirements that they expect will result in public submission of data that could unfairly tarnish companies' reputations.

OSHA appears poised to issue its controversial electronic recordkeeping and reporting rule, one of only two rules the agency is expected to issue before the end of the Obama administration, after the White House Office of Management & Budget (OMB) approved the measure April 29.


The rule's expected issuance in the coming days appears likely to prevent critics in the next Congress from seeking a Congressional Review Act resolution to overturn the regulation. Many observers agree that the law's provisions will likely only allow lawmakers to use its privileged procedures in the Senate to challenge rules promulgated after May 16.


But the regulation will almost certainly draw legal challenges from industry and other critics, who charge OSHA lacks legal authority for the rule's burdensome and overly broad requirements that they expect will result in public submission of data that could unfairly tarnish companies' reputations.

OSHA has created new resources for hospitals to put stringent measures in place to prevent workplace violence, the latest step in federal efforts as state plans including California's OSHA program continue to either look at enacting regulations or leveraging existing requirements to reduce violent incidents.

 

Industry representatives question OSHA's growing involvement in the issue, both because it lacks a specific regulation and also because the health sector has always considered violence to be a law enforcement issue.


Eric Conn, OSHA chair at the workplace safety group of Conn Maciel Carey, contends that OSHA's continued issuance of guidance and related materials keyed to workplace violence signals an increased intent to issue general-duty citations regarding the issue.

OSHA Penalties Set to Skyrocket this Summer

Federal Employment Law Insider (April 1, 2016)

For as long as I have been practicing law focused on occupational safety and health (more than 15 years now), three things have remained constant:


(1) The maximum per-violation penalty authorized by the Occupational Safety and Health Act (OSH Act) has been $7,000 for “serious” violations and $70,000 for “repeat” or “willful” violations.


(2) The assistant secretary of labor for the Occupational Safety and Health  dministration (OSHA) makes an annual pilgrimage to Capitol Hill, where he or she pounds on the table and demands that Congress enact reform legislation
to increase the maximum penalties that OSHA can assign (reciting common refrains like: “Employers can be fined more for mistreating cattle on federal lands than for allowing an employee fatality!”).


(3) There has been one iteration or another of such reform legislation
(usually dubbed “Protecting America’s Workers Act”) floating around Congress and stalling before it even gets out of committee. Yet last fall, the Republican-controlled House and Senate notwithstanding, through the back door came a congressionally mandated increase in OSHA civil penalties of nearly 80%. It
was a bizarre parting gift from former Speaker of the House John Boehner, perhaps part of his effort to “clear the barn” for his successor.

Eric Conn, founder of Conn, Maciel, Carey, a law firm specializing in OSHA law, says, “OSHA does not have the capacity to do anything productive with this data. Such volume for such a small-budget agency could not possibly be useful in helping OSHA develop policy, target enforcement resources, or implement any program that advances safety and health. The sole purpose of this data collection has to be, therefore, to publicly shame employers based on injury data that was never intended to be a performance metric. Specifically, OSHA intends for the data to harm employers by: • Discouraging consumers from doing business with them; • Thwarting contracting opportunities with customers; • Providing ammunition to organized labor for organizing campaigns or at the bargaining table; • Scaring off current and prospective employees; • Eliminating access to business loans; and • Negatively impacting insurance coverage and rates.”

Work Injury Reporting Rules Raise Concerns

Business Insurance (February 28, 2016)

Some workplace safety lawyers are discouraging employers from using the Occupational Safety and Health Administration's website to report severe injuries and fatalities in the workplace for fear the information will be used against them.


OSHA's revised reporting requirements that went into effect last year require all workplace fatalities be reported within eight hours and that certain severe injuries be reported within 24 hours of management learning of the incidents.
The agency's reporting website went live in December, giving employers another option to report fatalities and severe injuries other than calling their local OSHA office or the agency's 24-hour hotline.

 

Eric Conn, a Washington-based founding partner at Conn Maciel Carey P.L.L.C., also discourages his clients from using the website.

“I don't know a single employer who completes an effective and thoughtful incident investigation in eight hours or 24 hours, so I think it's premature to commit in writing to some version of the incident,” Mr. Conn said. “When you make the phone call, you're not committing in writing to any version. Your own written words are your words, and you're married to them throughout the process.”

Work Injury Reporting Rules Raise Concerns

Inside OSHA (December 1, 2015)

OSHA has created new resources for hospitals to put stringent measures in place to prevent workplace violence, the latest step in federal efforts as state plans including California's OSHA program continue to either look at enacting regulations or leveraging existing requirements to reduce violent incidents.

 

Industry representatives question OSHA's growing involvement in the issue, both because it lacks a specific regulation and also because the health sector has always considered violence to be a law enforcement issue.


Eric Conn, OSHA chair at the workplace safety group of Conn Maciel Carey, contends that OSHA's continued issuance of guidance and related materials keyed to workplace violence signals an increased intent to issue general-duty citations regarding the issue.

The Occupational Safety and Health Act authorizes a ‘‘representative of the employer and a representative authorized by [the employer’s] employees’’ to accompany the OSHA agent during an inspection of the workplace (29 U.S.C. § 657(e)). The OSH Act specifies that the purpose of including these representatives
is to help OSHA conduct an effective workplace safety inspection.

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

OSHA Announces New Injury Reporting Rules

SHRM (September 15, 2014)

The Occupational Safety and Health Administration (OSHA) announced a final rule Sept. 11, 2014, revising the requirements for reporting work-related fatality, injury and illness information. The rule also updates the list of employers partially exempt from OSHA record-keeping requirements.

"The new rule will dramatically increase the number of incidents that employers have to report directly to OSHA, and will also dramatically increase the number of incident inspections that OSHA conducts,” remarked Eric Conn, founding partner and chair of the OSHA Workplace Safety Group at the law firm Conn Maciel Carey PLLC, based in Washington, D.C. “Experience also tells us that OSHA does not leave incident inspections without citing something.”