WEBINAR RECORDINGS
Bonus Webinar: A Conversation with the Director of NIOSH about COVID-19 in the Workplace

December 21, 2020

Presented by Conn Maciel Carey

Join Kate McMahon, a Partner in Conn Maciel Carey’s national OSHA Practice, and special guest Dr. John Howard, the Director of the National Institute for Occupational Safety and Health (NIOSH), for a one-on-one Q&A event regarding COVID-19 in the workplace.

Cases continue to spike throughout the United States, while employers try to keep pace with ever-shifting guidance from the CDC, OSHA, and state and county health departments, and face several new COVID-19 emergency regulations around the country. NIOSH works closely with the CDC to develop its COVID-19 guidance and to help educate Industry on effective infection control and response strategies. NIOSH also provides support to the White House Coronavirus Taskforce and assists states and local health departments develop effect strategies and policy to address COVID-19 in the workplace.

Through this Q&A session, Dr. John Howard, the Director of NIOSH for 17 years and counting, provides detailed insight and advice on the workplace safety and health implications of COVID-19 and what employers can expect next and how they can protect their workers from this pandemic. Participants in this webinar will learn:

  • CDC developments and guidance about COVID-19

  • Expectations about OSHA and COVID-19 enforcement policy under a Biden Administration

  • The latest updates on the COVID-19 vaccine and more!

Delaying Retirement: Impact of America's Aging Workforce on OSHA and Employment Matters

December 16, 2020

Presented by Lindsay A. DiSalvo and Ashley D. Mitchell

The single biggest factor affecting safety and health in America’s workplaces today is our aging workforce. Older workers offer valuable experience and job knowledge, but with that comes an increased risk of serious workplace injuries due to physiological changes affecting flexibility, strength, vision, hearing, and balance. Although older workers experience fewer total injuries than their junior counterparts, the injuries they do have tend to be more severe and require longer recovery times. With more than 30 million workers 55 years or older expected to be in the U.S. labor force by 2025, and huge numbers of workers remaining in the workforce well past traditional retirement age, employers face unique challenges in keeping employees safe and healthy and complying with a host of state and federal laws.

This webinar will review the realities of our nation’s aging workforce and how employers must carefully address these realities without running afoul of OSHA regulations and federal and state anti-discrimination laws, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act.

Participants in this webinar will learn about:

  • Data and trends driving America’s aging workforce

  • Impact the aging workforce has on workplace safety and health

  • Related OSHA regulatory issues employers must monitor

  • Title VII, and other age and disability discrimination pitfalls

Lessons Learned from the Roll-out of Virginia OSHA's COVID-19 Emergency Standard

December 7, 2020

Presented by Conn Maciel Carey and Safety Resource Associates, with a Special Guest from VOSH

Join us for a webinar regarding “Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard,” presented by Eric Conn, Chair of Conn Maciel Carey’s national OSHA Practice, Susan Wilcox, a CIH and CSP with Safety Resource Associates, and special guest Jennifer Rose, VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry.

Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to:

  • Assess potential exposures to COVID-19 in the workplace

  • Categorize the level of risk of exposure from Low to Very High (each with different mitigation requirements)

  • Develop and implement a written infection control plan

  • Provide employee training on the virus and control measures in the workplace

  • Make certain notifications about infected employees to co-workers, to VOSH, and to the VA Dept. of Health, VOSH’s COVID-19 ETS went to effect on July 27th, with major elements of the rule kicking in in August and September.

Now, several months into implementation of the COVID-19-specific regulation, we check on the status of the rule, challenges employers have faced complying with it, and enforcement issues. Participants in this webinar learned:

  • Background about VOSH’s COVID-19 Standard

  • What to include in your required Infection Control Plan

  • Requirements for training, face masks, sanitation, and notifications about infected employees

  • Compliance challenges employers have faced

  • Enforcement trends and forecasts

Legal Responsibilities & Liabilities for Mine Operators and Contractors at MSHA Facilities
December 1, 2020

Presented by Nicholas W. Scala

The relationship between production operator and independent contractor at a mine site is more critical than ever to the industry. Most operations welcome contractors on site to perform tasks, from routine equipment maintenance, to specialty construction and service. With the increase in contractors in the mining industry, MSHA recently noted a sharp increase in the number of serious and fatal injuries sustained by contractors. Now, independent contractors will be under a microscope when at mine sites. Therefore, it is essential for production operations and their contractors to understand the obligations of each party under MSHA. This webinar will review the delineation of responsibilities for both production and independent contractors. It will also provide strategies for working cooperatively while protecting each company’s interests.

During this webinar, participants learned about:

  • Liability under the Mine Act for all production operators and independent contractors working at a mine;

  • MSHA’s ability to cite both companies for the violations of the one operator;

  • Strategies for independent contractors to improve safety and health programs at MSHA sites; and

  • Best practices for production operators pre-qualifying and monitoring contractors.

Process Safety Update: The Latest on OSHA PSM & EPA RMP

November 17, 2020

Presented by Eric J. Conn, Micah Smith and Beeta Lashkari

Following the tragic West Fertilizer explosion in 2013, then-President Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” the way the government regulates chemical process safety. OSHA and EPA took sweeping actions in response to the Executive Order, from enforcement initiatives (like a new wave of Refinery and Chemical Facility PSM National Emphasis Program inspections) to rulemaking and interpretation letters to an overhaul of OSHA’s PSM and EPA’s RMP regulatory programs. Then President Trump took office with a de-regulatory agenda, leaving the regulated community to wonder what this meant for the latest efforts to regulate process safety.

 

Rather than a unwavering drive toward deregulation, however, the Trump Administration initiatives in this area have been splintered, with some deregulatory initiatives proceeding, others coming to a complete halt, and still others being pared back in a deregulatory-lite fashion. For instance, we saw immediate delays and the beginning of rollbacks of new process safety regulations, yet enforcement initiatives appeared to move forward unhindered. And now, with three years of the Trump Administration in the books and an important Presidential Election looming, it remains unclear where the regulatory landscape will ultimately settle.

 

This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, as well as other major process safety developments from the federal government, state governments, and industry groups.

While many companies are dealing with the more noticeable effects of the COVID-19 pandemic, wage and hour issues continue to be a concern as they could result in significant financial liability. As a result, it is important to be aware of these new pandemic-related wage and hour issues, including:

  • Tricky “off the clock” and other wage payment issues for teleworking employees;

  • Whether teleworking employees need to be paid for “commuting” time;

  • Whether on-site employees should be paid for health screening time and other safety protocols; and

  • Exempt/non-exempt issues resulting from employees performing multiple tasks on emergency bases.

At the same time, there are other important wage and hour issues that have changed significantly in 2020, including the new overtime rule, new classification guidance for independent contractors, and new joint employer guidance under the FLSA. In this webinar, participants will learn about:

  • Specific strategies to deal with unexpected wage & hour challenges stemming from the COVID-19 pandemic;

  • Proactive measures to stave off potential wage & hour claims; and

  • The proper way for employers to implement new wage & hour regulations into their pay practices.

Michigan OSHA's COVID-19 Emergency Rules

October 29, 2020

Presented by Eric J. Conn, Aaron Gelb and Ashley D. Mitchell

When the MI Supreme Court struck down Gov. Whitmer’s COVID-19 Executive Orders, MI OSHA responded quickly to fill the void, and last week issued a series of COVID-19 Emergency Regulations. When Gov. Whitmer signed the “Emergency Rules Order,” Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulations. While many of the requirements set forth in the new rules mirror the Governor’s prior EOs, having a prescriptive rule in place makes it that much easier for MI OSHA to issue citations to employers.

 

Given MI OSHA’s aggressive use of the General Duty Clause to support a series of citations after an inspection blitz over the summer, Michigan employers should expect enforcement to continue in a similar manner, making compliance with these rules all the more important. Participants in this webinar will learn about the requirements of MIOSHA’s COVID-19 emergency rules and steps to take to avoid citations, including:

  • Conducting COVID-19 hazard assessments

  • Developing and implementing a written exposure preparedness and response plan

  • Adopting workplace controls and safe work practices

  • Training for employees

  • Recordkeeping requirements

Election Special: What to Expect from OSHA After the Upcoming Presidential Election

October 22, 2020

 

Presented by Kate M. McMahon and Amanda R. Strainis-Walker

Next month, Americans will cast ballots to elect the next President of the United States – either a second term for President Trump or a new Democratic Administration under former Vice President Biden. As always, the platforms and proposed polices of the candidates are quite divergent, so we will project how the government’s actions on workplace safety will differ under the two candidates. In particular, we will discuss how the OSHA enforcement and rulemaking landscape is likely to change in a second Trump term and what to expect in those areas if Biden takes the reins. This webinar will discuss the public positions taken by both candidates about safety and health enforcement and rulemaking, and the likely impacts depending on which candidate takes control of the Executive Branch in 2021, as well as which party control of the House and Senate.

 

Participants in this webinar will learn what to expect from a Trump vs. Biden Administration in terms of:

  • Regulation and enforcement of COVID-19 in the workplace

  • OSHA rulemaking and enforcement priorities and strategies

  • OSHA leadership

  • Other worker safety regulatory and legal issues

Conducting Background Checks: Federal, State, and Local Law Considerations

October 13, 2020

 

Presented by Andrew J. SommerDaniel C. Deacon and Ashley D. Mitchell

Employers must consider an array of federal, state, and local laws when implementing background checks. Notably, the Fair Credit Reporting Act (FCRA) imposes strict disclosure and authorization requirements that employers must follow prior to obtaining any background check on an applicant or employee, as well as procedural requirements before employers may take an adverse employment action based on the results of the background check. Additionally, various states and municipalities impose restrictions on an employer’s ability to conduct background checks, including when employers may ask applicants about their criminal history and what types of convictions may be considered.

In this webinar, participants learned about:

  • Disclosure and authorization requirements under the FCRA

  • Tips to comply with the FCRA when taking an adverse employment action

  • State and local laws regulating background checks, including ban-the-box laws restricting the timing and scope of criminal background inquiries

  • Class actions and other legal trends over background checks, and tips for employers to avoid being targeted in litigation

Attorney-Client Privileged Audits and Investigations and OSHA's Self-Audit Policy

September 22, 2020

 

Presented by Kate McMahonMicah Smith and Nick Scala

Safety and health audits and accident or near-miss investigations are invaluable tools to identify hazards at a workplace and improve safety, but what happens when a government regulator demands copies of the reports and/or recommendations from the audit or investigation? When not done carefully or under attorney-client privilege, audit and investigation reports can serve as admissions and/or a roadmap for OSHA and MSHA investigators or plaintiffs’ attorneys regarding areas of non-compliance. This in turn can create a disincentive for employers to audit their facilities.

This webinar explored the benefits of conducting audits and investigations at the direction of counsel so as to improve safety and compliance while also protecting the company and management from adverse use by 3rd party litigants or regulators. We reviewed audit and investigation and report-writing strategies and best practices. We also reviewed OSHA’s policy on self-audits and the reality of OSHA’s use of voluntary self-audits during inspections. And we reviewed best practices to manage MSHA’s unlimited lookback period for enforcement.

Participants in this webinar learned about:

  • Implementing attorney-client privileged audit programs and investigations

  • Maintaining privilege over results of audits and investigations, while still effectively implementing findings

  • How OSHA, MSHA or 3rd party litigants can use self-audits and inspections against an employer

  • OSHA and MSHA statute of limitations and policies on lookback for audit and incident and/or near miss reports

NLRB Update: Senate Confirmations, Union Organizing, and Election Rules

September 16, 2020

 

Presented by Kara M. Maciel and Mark Trapp

With a solid Republican majority in place for most of the Trump Administration, and new confirmations establishing a quorum, the National Labor Relations Board is methodically establishing or re-establishing many pro-employer precedents. We will discuss the status of the Board and its Members and the impact of its most important rulings. We will also discuss several ongoing NLRB rulemakings including changes to the election rules, as well as union organizing tactics in light of COVID-19. This webinar will address these and other timely issues, equipping employers to understand the potential impact on their employees and workplace.

Technology Solutions for Complying with COVID-19 Requirements

September 8, 2020

 

Co-Presented by Eric J. Conn (Conn Maciel Carey LLP) and Nick Eurek (Maptician)

In July, Virginia became the first state in the nation to promulgate a mandatory rule designed to reduce COVID-19 infections in the workplace. Virginia’s rule memorializes otherwise recognized and enforceable guidance from federal OSHA, the CDC, state and local departments of health, and governors’ offices all across the country, so the policies and controls that must be implemented there are mostly needed everywhere. Specifically, employers are required to:

  • Assess and categorize potential exposures to COVID-19 in the workplace

  • Implement a written infection control and response plan

  • Promptly notify potentially exposed co-workers, VOSH/OSHA, and/or the Depart. of Health about infected workers


The core element of employers’ infection control strategies are the engineering, administrative, and safe work practice controls to enhance physical distancing (e.g., reconfiguring work stations, tracking where/when employees move throughout the workplace, thoughtful scheduling strategies like cohorting, staggering start/end/break times, etc.), conducting pre-work health screenings, and promptly contact tracing to facilitate notifications to potentially exposed employees. As is America’s way, innovators are developing technology solutions to aid in implementing these infection control strategies. A special guest from the innovative technology provider Maptician will identify technology solutions they have developed to assist employers in meeting these new regulatory requirements.

 

Participants in this webinar learned:

 

  • Background about VOSH’s COVID-19 Standard and related OSHA and CDC guidance

  • What to include in an effective Infection Control Plan

  • Technology solution for key infection control strategies

OSHA and Labor & Employment Law Issues Associated with Employee Discipline

August 19, 2020

 

Presented by Conn Maciel Carey and special guest Richard Fairfax, former Deputy Assistant Secretary at the Occupational Safety and Health Administration

Disciplining employees, a critical tool in enforcing workplace rules, has the potential to create problems, especially when relationships deteriorate and emotions run high. Even in situations where an employer is disciplining for the right reason, if it is handled incorrectly, a lawsuit or labor grievance could turn out to be costly. But in circumstances that warrant discipline, employers cannot just sit back. Productivity, employee morale, workplace culture, employee safety and health, and meeting goals are just some of the many considerations impacted by an effective employee discipline program. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA.

This webinar will give you a blueprint to lawfully discipline employee and mitigate the risk of future litigation.

 

Participants in this webinar learned about:

  • The legal implications of disciplining employees

  • Tips for drafting effective discipline policies

  • Effective investigations into performance issues and misconduct

  • Strategies for carrying out effective discipline in a legally sound manner

  • Ways that employee discipline can be used offensively in litigation

Everything You Need to Know About Virginia OSHA's New COVID-19 Standard

August 3, 2020

 

Presented by Eric Conn, Chair of Conn Maciel Carey’s national OSHA Practice, Susan Wilcox, a CIH and CSP with Safety Resource Associates, and special guest Jennifer Rose, VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry

Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to:

  • Assess potential exposures to COVID-19 in the workplace

  • Categorize the level of risk of exposure from Low to Very High (each with different mitigation requirements)

  • Develop and implement a written infection control plan

  • Provide employee training on the virus and control measures in the workplace

  • Make certain notifications about infected employees to co-workers, to VOSH, and to the VA Dept. of Health


VOSH’s COVID-19 ETS will go into effect after it is published in a newspaper of general circulation in Richmond, VA, which is expected to occur the week of July 27th. Virginia companies could face penalties ranging from approx. $13,000 up to $130,000 for each violation of the new rule.

Participants in this webinar learned:

  • Background about VOSH’s COVID-19 Standard

  • What VOSH’s COVID-19 ETS requires

  • What to include in your Infection Control Plan

  • Requirements for training, face masks, sanitation, and notifications about infected employees

  • Timelines and deadlines in VOSH’s new rule

MSHA and FMSHRC Mid-Year Update

July 21, 2020

 

Presented by Nicholas W. Scala

With a full slate of commissioners at the Federal Mine Safety and Health Review Commission (”FMSHRC”), there were a relatively steady stream of MSHA decisions published in the last half of 2019. This trend should continue into the first half of 2020 at least, which means the compliance expectations and standards that mine operators must adhere to will continue to evolve. This hasn’t been much more evident recently than when the federal appellate court mandated that MSHA change its M/NM Workplace Exam Rule. Additionally, this webinar will take stock of what MSHA’s priorities from enforcement and rulemaking have been year-to-date, and how any developments from MSHA or the FMSHRC are directly impacting the compliance responsibilities of operators.

 

During this webinar, participants learned about:

 

  • MSHA enforcement trends and initiatives through mid-2020;

  • FMSHRC decisions impacting mine operators and independent contractors; and

  • Strategies to prepare operations for changing enforcement tactics and standard interpretations.

The State of the Law Regarding Marijuana and Drug Testing

July 15, 2020

 

Presented by Jordan B. Schwartz and Daniel Deacon

For better or for worse, America is going green and its acceptance of marijuana is increasing rapidly. However, new regulatory developments regarding medical and recreational marijuana have created a host of compliance concerns for employers. While marijuana is still illegal under federal law, 33 states and the District of Columbia have passed legislation giving medical marijuana usage the green light. Eleven states and the District of Columbia have legalized recreational marijuana. And, several states have enacted laws making the possession of small amounts of the drug a civil, not criminal, offense.

 

With the potential for more employees to be under the influence of both legal and illegal drugs at the workplace, what can employers do to maintain a safe workplace? What restrictions are there for testing employees for drug use? Can employer really impose a drug-free workplace policy in light of these seemingly pro-marijuana laws?

 

This webinar explored the changing legal landscape concerning marijuana, analyze potential issues related to zero-tolerance policies, review tips for developing effective drug testing policies, and best practices for handling employees who test positive marijuana in states where it has been legalized to some extent. More specifically, participants learned:

 

  • The changing legal landscape regarding medical and recreational marijuana in states around the country and the District of Columbia

  • How state marijuana laws affect your federal compliance obligations under the DOT and other agencies

  • Which state laws provide explicitly for employee non-discrimination protections

  • Whether medical marijuana usage may qualify as a reasonable accommodation under the Americans with Disabilities Act or state disability discrimination laws

  • How to address off-duty use of marijuana in states where it is legal

  • Effective solutions to drug test for marijuana and drafting drug testing policies

Going Through Withdrawal: Avoiding, Minimizing and Fighting Withdrawal Liability

June 24, 2020

 

Presented by Mark M. Trapp

This webinar will address the significant challenges faced by companies participating in multiemployer plans. Specifically, it will help unionized employers understand and analyze what is often the most critical challenge facing their business – multiemployer pension withdrawal liability.

 

Participants will learn about the following:

 

  • Specific strategies to address withdrawal liability and plan for your company’s future

  • The latest developments in litigating withdrawal liability assessments, including determining the highest contribution rate and calculating the credit for a prior partial withdrawal

  • The impact of COVID-19 on the legislative environment for multiemployer pension plans

MSHA Part 50 and Training Recordkeeping Requirements

May 26, 2020

 

Presented by Nicholas W. Scala

MSHA’s Injury and Illness Recordkeeping regulations are contained in 30 C.F.R. §50, more commonly referred to as Part 50. Part 50 includes MSHA’s standards such as what constitutes an immediately reportable incident, a reportable injury or illness, and what investigation records must be maintained in the event of an accident, just to name a few. While, separately, MSHA requires the maintenance of all applicable training records, such as new miner, annual refresher, site specific, and task training in 30 C.F.R. §§46 & 48, record audits by MSHA frequently cover both areas. During this webinar, participants will learn some of the most basic and yet cited recordkeeping requirements under Parts 46, 48, and 50 and how to prevent issuance at your operation.

 

During this webinar, participants will learn about:

 

  • Part 50 reporting and recordkeeping requirements;

  • Determining reportability of injury and illness at a mine site; and

  • Standard governing of the creation, maintenance, and production of training records and programs under MSHA.

Returning to Work Strategies: Employment & Workplace Safety Implications of COVID-19

May 7, 2020

 

Presented by Conn Maciel Carey's COVID-19 Taskforce

As the federal government and states begin to relax shutdown and stay-at-home orders and non-essential businesses begin to resume or ramp-up operations, employers need to plan for the safe and healthy return of their employees, customers, and guests back into the workplace.  During this webinar, participants heard from members of Conn Maciel Carey’s COVID-19 Task Force as they discussed how to develop and implement a Return-to-Work Plan.

Participants learned about the following:
 

  • How to recall furloughed employees to qualify for loan forgiveness under the Paycheck Protection Program

  • New federal paid leave laws and their application to employees returning from furlough

  • Navigating the FLSA requirements for exempt employees who may be performing non-exempt work as work ramps up

  • Preventing third-party interference from labor unions and organizing attempts

  • COVID-19 Infection/Exposure Control Plans

  • Pre-shift Health Screening Protocols and best practices (e.g., temperature checks and health/symptom questionnaires)

  • Effective engineering and administrative controls to mitigate potential exposures to COVID-19 in the workplace

  • Decisions about Personal Protective Equipment, Respirators, Face Masks, and Face Coverings

  • Recording and Reporting to OSHA and workforce about confirmed employee COVID-19 infections

  • “Lessons learned” from the first wave of COVID-19 furloughs and how to prepare for the potential second wave in the Fall

Impact of the #MeToo Movement: Changes in Enforcement and State Law

April 22, 2020

 

Presented by Kara M. Maciel and Lindsay A. DiSalvo

Over the past three years, we have seen the continued momentum of the #MeToo Movement and its impacts – beyond the immediate and direct effects of the specific allegations – have taken shape. Back in 2017, the #MeToo Movement was invigorated by a slew of high-profile allegations of sexual harassment and assault and tens of thousands of people, largely women, voicing their own experiences on social media using the hashtag “Metoo.” In the wake of the prominence of the Movement and its influence on the discourse surrounding issues of harassment, the states and the federal government have taken action to tackle what they see as the underlying issues that foster harassment. And one of the main areas of focus has been preventing and addressing sexual harassment in the work environment.

 

Indeed, several states, such as New York and Illinois, have passed laws requiring employers to implement such things as sexual harassment prevention policies and training at their facilities – some of the laws even specifically describe what those policies and/or trainings must contain. Other states have also implemented such restrictions as bans on including sexual harassment claims in mandatory arbitration agreements. Simultaneously, we have seen an uptick in the number of sexual harassment charges filed and pursued by the Equal Employment Opportunity Commission (“EEOC”). Thus, it is essential for employers to understand the legal requirements and restrictions surrounding this issue to ensure compliance with federal and state law.

 

Participants learned about the following:

 

  • The legal standards for sexual harassment and their nuances

  • New state law requirements for sexual harassment prevention policies and training

  • General recommendations for anti-harassment policies, complaint procedures, and training 

  • Best practices for investigating and addressing complaints of sexual harassment

Cal/OSHA Developments that California Employers Must Track

April 16, 2020

 

Presented by Andrew SommerEric J. Conn and Megan Shaked

California's Division of Occupational Safety and Health, aka Cal/OSHA, is perhaps the most aggressive and enforcement-heavy state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and Appeal process creates several unique landmines for California employers. 

During this webinar, participants will learn about:

  • Cal/OSHA requirements for addressing COVID-19 in the workplace, including its Aerosol Transmissible Diseases rule and Interim Guidelines for General Industry

  • Data and trends in Cal/OSHA enforcement

  • Top legal developments including related to protective footwear

  • Amended serious injury reporting requirements

  • New rules regarding wildfire smoke and training on Valley Fever

  • Proposed rulemaking including the Indoor Heat Illness Rule, and Workplace Violence in General Industry Rule

Employment Law and Workplace Safety Implications of COVID-19 for Breweries, Distilleries and Wineries

March 30, 2020

 

Presented by Eric J. ConnKara M. Maciel and Daniel C. Deacon

There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” The World Health Organization declared a global pandemic, President Trump initiated a National Emergency Order, and state and local officials have been ordering shutdowns of non-essential businesses and mandatory shelter-in-place orders. Furthermore, Congress passed emergency legislation that temporarily requires employers to provide paid sick and family leave and the Department of Labor has issued guidance on how employers should comply with employment and workplace safety laws.

Local craft breweries, distilleries, and wineries have been deemed essential businesses under current federal and state directives, such as Governor Hogan’s March 23, 2020 order, but the traditional way of doing business has changed considerably. These changes have raised numerous questions regarding how small businesses can successfully operate while complying with these new requirements.

Participants in this webinar learned about recent developments, new federal legislation, EEOC, CDC and OSHA guidance, including:

  • Federally required Paid Family Leave and Paid Sick Leave;

  • Strategies for employers to prevent workplace exposures while complying with Federal and State labor and employment laws;

  • OSHA's guidance about preventing workers from exposure to COVID-19 and related regulatory risks;

  • FAQs for employers about managing the Coronavirus crisis in the workplace;

  • Federal and state orders concerning essential businesses and financial assistance; and

  • Tips to maintain a thriving brewery, distillery, or winery while shifting business models.

Preparing for and Managing MSHA Inspections

March 26, 2020

 

Presented by Nicholas W. Scala

Knowing how to conduct yourself while engaging with MSHA during inspections or investigations can serve to make the process more efficient, and also help operators avoid misunderstandings with MSHA personnel, which can make visits from the Agency spiral. This webinar will serve to give operators, and their representatives, a set of guidelines for how to conduct themselves when MSHA is on site. It will discuss best practices for preparing for personnel and mine site MSHA’s imminent arrival. This webinar will cover miner and company rights during visits from MSHA, and how to best position the company to avoid the issuance of harmful citations and orders.

During this webinar, participants learned about:

  • Strategies for interacting with MSHA while inspectors are on site;

  • Tips for preparing for MSHA to arrive at your facility; and

  • Best practices to train miners to accompany and manage MSHA inspections and investigations.

Strategies for Responding to Whistleblower Complaints

March 25, 2020

 

Presented by Kara M. Maciel and Lindsay A. DiSalvo

Over the past few years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot past 50% as of 2018. Employers have likewise seen a similar increase in the number of whistleblower claims filed with OSHA – a 74% increase in the number of complaints filed with OSHA from 2012 to 2018, the vast majority of which were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a whistleblower complaint is received, employers have a chance to explain why the complaints lacks merit. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file, whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the charge of discrimination. These responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar learned about: 

  • Applicable federal whistleblower and anti-retaliation laws

  • How the EEOC and OSHA evaluate whistleblower and retaliation claims

  • Strategies employers can use to effectively respond to retaliation complaints

  • Proactive measures employers can take to avoid employee complaints

Bonus Webinar: How Employers Can Respond to COVID-19 and Frequently Asked Questions

March 17, 2020

 

Presented by Eric J. ConnKara M. MacielAmanda R. Strainis-Walker and Lindsay A. DiSalvo

There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.”  Today, the world health organization declared a global pandemic and there are over 1000 confirmed cases in the United States.  Participants in this webinar learned about recent developments and federal legal guidance including:

  • ​Strategies for employers to prevent workplace exposures while complying with Federal and State level labor employment laws

  • OSHA's guidance about preventing workers from exposure to COVID-19 and related regulatory risks

  • FAQs for employers with guidance from the CDC

Post-Citation OSHA Settlement Tips and Strategies

February 25, 2020

 

Presented by Aaron R.Gelb and Amanda R. Strainis-Walker

You just received a set of OSHA citations in the mail. Now what? Should we accept the citations and pay the penalty? Should we participate in an Informal Settlement Conference with the OSHA Area Office? Should we contest the citations? If we contest, does that mean we’re heading to a trial? What does a good settlement look like and how can we achieve our settlement goals?

This webinar will explain the post-citation process and provide tips and strategies for resolving OSHA citations in a manner that prevents future “Repeat” violations, reduces the penalty, mitigates the impact of the citations on potential criminal prosecutions and/or personal injury or wrongful death suits, and helps you avoid the Severe Violator Enforcement Program.


Participants in this webinar learned:

 

  • Post-Citation options and processes

  • How to assess the potential future impact of OSHA citations

  • Settlement goals

  • Tips and strategies to achieve settlement goals

Bonus Webinar: Everything You Need to Know About CSB's New Accidental Release Reporting Rule

February 24, 2020

 

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

The U.S. Chemical Safety and Hazard Investigation Board (the CSB) has, for the first time, established a chemical release reporting rule that creates broad new requirements for employers to report accidental releases to the CSB within 8 hours if certain thresholds are met. The CSB promulgated this new Accidental Release Reporting Rule because of a 2018 federal district court decision mandating that the CSB issue the rule pursuant to the 1990 Clean Air Act Amendments. The court had set an expedited schedule, giving the CSB only 12 months to develop and finalize the rule.

Conn Maciel Carey’s national OSHA • Workplace Safety Practice Group coordinated an ad hoc Coalition of employers and trade associations to prepare rulemaking comments about the proposed rule. While CSB revised the final rule in a few important ways to address the concerns our Coalition raised in our comments, the final rule still includes several problematic requirements that will create major compliance headaches for employers across the country. The rule will take effect in March, 30 days after publication in the Federal Register.


Participants in this webinar learned:

 

  • History of the CSB’s efforts to promulgate a reporting rule

  • What was in the Proposed Rule

  • Comments about the proposed rule submitted by Conn Maciel Carey and our Coalition

  • Details of the Final Rule, including coverage, contents of the reports, reporting deadlines, etc.

  • What employers must do now to comply

  • Potential legal challenges to the rule

Illinois and DC Area State Law Update

February 20, 2020

 

Presented by Aaron R. Gelb and Dan C. Deacon

The New Year brings a host of changes and challenges for Illinois employers as the legislature passed and Governor Pritzker signed, in 2019, a variety of new labor and employment laws that go into effect in 2020. These new laws promise to keep employers busy as they revise and update employee handbooks, develop new training programs, reevaluate their arbitration agreements and deal with the decriminalization of marijuana. Beginning in January 2020, employers will be faced with an expanded Illinois Human Rights Act that applies beyond the physical workplace, covers non-employee contractors and protects against discrimination based on perceived (in addition to actual) protected status. There are also special new rules that apply to restaurants, bars and coffee shops as well as disclosure requirements that will necessitate notifying the Department of Human Rights of adverse judgments in employment discrimination or harassment matters. The Victims’ Economic Security and Safety Act has also been amended and a recently signed “trailer bill” has clarified what employers should do if they wish to prohibit the use of marijuana as part of their workplace drug and alcohol policy.

 

Likewise, the District of Columbia has enacted or is considering a host of changes that employers need to keep track of in 2020.  D.C.’s Tipped Wage Workers Fairness Amendment Act of 2018 imposes certain training and notice requirements on all employers of tipped employees.  The deadline to implement that training and to provide the requisite notice, however, has not yet been determined, as a majority of the Act’s requirements have not been approved through budget funding, including those related to mandatory sexual harassment training. The only provisions of the Act that are currently in effect, besides the repeal of the Minimum Wage Amendment Act of 2018 / Ballot Initiative 77, are related to employee and manager training on D.C.’s Minimum Wage Act Revision Act and third-party payroll and wage reporting requirements.  Furthermore, under D.C.’s Paid Leave Act, private sector employers began paying a .62% tax on July 1, 2019 to fund paid-leave benefits.  Beginning on July 1, 2020, eligible employees will be eligible for paid leave benefits under the law, which provides up to eight weeks of paid parental leave to bond with a new child, six weeks of paid family leave to care for an ill family member with a serious health condition, and two weeks of paid medical leave to care for one's own serious health condition.  July 1, 2020 also marks the date that the D.C. Minimum Wage will increase to $15.00 per hour.  Finally, the D.C. City Council is considering two bills that would eliminate marijuana testing of employees at work.

Participants in this webinar learned:

 

  • What type of harassment training must be provided to employees and when;

  • Which policies and procedures should be reviewed and/or revised;

  • What steps Illinois employers should take if they wish to continue drug testing for cannabis;

  • What they can and cannot do with respect salary inquiries and employee discussions about wages;

  • Potential changes to D.C. drug testing laws

  • Tips to comply with D.C.’s Tipped Wage Workers Fairness Amendment Act of 2018, the Paid Leave Act, and the increased minimum wage

MSHA's 2019 in Review and 2020 Forecast

February 11, 2020

 

Presented by Nicholas W. Scala

As we move into 2020, the last year of the Trump Administration’s first term, a new MSHA is taking form. The Agency has undergone, and continues to undergo, significant changes with its personnel, structure, and priorities. In this webinar, we will examine MSHA’s 2019 with respect to enforcement, rulemaking, and the One MSHA “blurring” of the Coal and Metal/Nonmetal divisions. We will also explore the potential areas of emphasis for the upcoming year and outline several items mine operators and independent contractors should monitor during 2020.

 

During this webinar, participants learned about:

  • 2019 MSHA enforcement trends and statistics;

  • The status of existing and new MSAH enforcement initiatives;

  • Review of One MSHA Blurring of the Coal and Metal/Nonmetal enforcement divisions; and

  • Status of M/NM Workplace Exam, Powered Haulage, and Respirable Quartz rulemaking.

OSHA's 2019 in Review and 2020 Forecast

January 23, 2020

 

Presented by the Partners in the OSHA Practice Group at Conn Maciel Carey

The ball has dropped, the confetti has been swept out of Times Square, and 2019 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, it is time to look ahead and assess what to expect from OSHA during this Presidential election year. In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement, rulemaking, and personnel developments from 2019, and will discuss the top OSHA issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned the following:

  • 2019 OSHA enforcement data and important case decisions

  • OSHA organizational developments

  • The future of OSHA enforcement

  • Rulemaking and deregulatory developments and predictions

  • Significant OSHA policy issues to watch out for in the New Year

California Employment Law Update for 2020: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know

January 15, 2020

 

Presented by Andrew J. Sommer & Megan S. Shaked

2020 brings significant changes for California employers, from a new test for determining independent contractor status to a ban on no rehire agreements and revamped reporting standard for serious workplace injuries. This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and best practices for avoiding potential employment-related claims.

Participants learned about the following:

  • New ABC test used in determining whether a worker is an employee or independent contractor for purposes of the wage and hour violations and unemployment claims

  • Legislation prohibiting an employer from requiring, in settling an employment dispute, that an employee agree not to obtain future employment with that employer

  • Ban on mandatory arbitration agreements covering discrimination claims under the Fair Employment and Housing Act and Labor Code

  • Extension of the deadline for filing complaints with the Department of Fair Employment and Housing from one to three years

  • Ban on workplace dress code and grooming policies that prohibit natural hair, including afros and braids, that have a disparate impact based on race

  • New law clarification the requirements for lactation accommodations in the workplace

  • Increase in Paid Family Leave benefits, from six to eight weeks

  • Wage and hour and industry specific employment developments

  • Workplace safety developments, including the amended standard for reporting serious injuries and illnesses in the workplace

  • Current minimum wage requirements both statewide and on local level


The webinar also addressed steps employers can take to achieve compliance including evaluating current personnel practices and updating employee handbooks, employment agreements and training protocol.

Workplace Violence & Sexual Harassment: OSHA & Employment Law Issues

December 17, 2019

 

Presented by Aaron R. GelbLindsay A. DiSalvo and Megan Shaked

Nearly 2 million American workers report being victims of workplace violence each year, and many cases go unreported. At the same time, the #MeToo movement has brought renewed focus on sexual harassment in the workplace. While there are no OSHA standards for workplace violence or sexual harassment, the General Duty Clause requires employers to provide employees a place of employment free from recognized serious hazards. Over the years, OSHA has issued General Duty Clause citations to employers after incidents of workplace violence or harassment. ​

 

Recently, one OSHA Regional office initiated an inspection after a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  The EEOC, meanwhile, continues to focus on sexual harassment, having recovered nearly $70 million for employees claiming sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.  The question remains, however, whether OSHA will expand efforts to investigate and/or address sexual harassment, particularly in those workplaces where it is foreseeable or preventable.

 

Participants will learn about the following:

 

  • Enforcement priorities relative to sexual harassment and workplace violence at the EEOC and OSHA - Best practices related for designing effective anti-harassment policies, developing manager & employee harassment training programs, and implementing compliant investigation procedures

  • Tips for creating an organizational culture in which harassment is not tolerated and ensuring employees are held accountable

  • Steps that employers can take to develop and implement an effective workplace violence prevention program

Requirements and Limitations of MSHA Citations and Orders

December 12, 2019

 

Presented by Nicholas W. Scala

While most operators know how to respond to an inspector issuing 104(A) citations, what happens when the inspector issues a 104(B) or 107(A) or 104(D)? Each citation and order issued by MSHA either requires or prohibits some action from an operator, whether the production operator or independent contractor. Sometimes, a single order mandates action or inaction by both parties.

 

This webinar will review MSHA’s available citations and orders, with an emphasis on the appropriate reaction by operators to prevent further enforcement and safeguard contest rights.

 

During this webinar, participants will learn about:

  • Available citations and orders that can be issued by MSHA inspectors;

  • How to identify what action should be taken, or what action is prohibited, depending on the citation/order issued; and

  • How to preserve an operator’s contest rights while complying with MSHA issuances.

Process Safety Update: The Latest with OSHA PSM & EPA RMP

November 19, 2019

 

Presented by Eric J. ConnAmanda Strainis-Walker, and Micah Smith

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

 

Then President Trump took office with a de-regulatory agenda, leaving the regulated community to wonder what this meant for these changes to process safety regulations. But rather than a continued wave of action, the momentum splintered, with some initiatives proceeding, others coming to a halt, and others still being pared back. We saw immediate delays and the beginning of rollbacks of new process safety regulations, yet enforcement initiatives appeared to move forward unhindered. And now, with two years of the Trump Administration in the books, it is still unclear where the regulatory landscape will settle. ​

 

This webinar will review the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, as well as other major process safety developments from the federal government, state governments, and industry groups.

Marijuana and Drug Testing Update

October 24, 2019

 

Presented by Aaron R. Gelb and Daniel C. Deacon

Recent state regulatory developments regarding medical and recreational marijuana have created a host of compliance concerns for employers. While marijuana is still illegal under federal law, 33 states and the District of Columbia have passed legislation giving medical marijuana usage the green light. Ten states and the District of Columbia have legalized recreational marijuana. And, several states have enacted laws making the possession of small amounts of the drug a civil, not criminal, offense.

The web of varying state laws regarding when and how an employer can drug test an employee and what drugs an employer may test for further compounds these challenges, requiring that employers maintain a delicate balance between business objectives, employee rights, and state and federal laws.  Given the growing social acceptance of marijuana use, employers are struggling to develop and effectively implement workplace policies that address employee drug use without lessening the pool of talented employees.  What may be permissible under law may not necessarily be good for the business. 

This webinar explored the changing legal landscape concerning marijuana, review tips for developing effective drug testing policies, and tips for handling employees who test positive marijuana in states where it has been legalized to some extent.   More specifically, participants learned:

  • The changing legal landscape regarding medical and recreational marijuana in states around the country and the District of Columbia

  • How state marijuana laws affect your federal compliance obligations under the DOT and other agencies

  • Which state laws provide explicitly for employee non-discrimination protections

  • Whether medical marijuana usage may qualify as a reasonable accommodation under the Americans with Disabilities Act

  • How to address off-duty use of marijuana

  • When and how to drug test an employee

  • How to develop and manage workplace drug testing policies

What You Need to Know About OSHA's Health and Chemical Exposure Standards

October 22, 2019

 

Presented by Kate M. McMahonAmanda R. Strainis-Walker, and Beeta Lashkari

In addition to OSHA’s myriad Safety regulations, the agency has also promulgated approx. 30 comprehensive Health standards, and established air exposure limitations for an additional 500 common chemicals present in U.S. workplaces, such as asbestos, lead, and silica.  Knowing when and how to conduct monitoring is complex, and the chemical sampling data collected can be a double-edged sword.  This webinar will help keep you clear about the requirements of OSHA’s occupational health standards, provide useful guidance and tips on the types and frequency of air monitoring or other chemical sampling that may be required or warranted at your facilities, and the programs to implement if you do experience exposure levels above the minimum regulatory thresholds (or other industry consensus thresholds).

​During this webinar, participants learned about:

  • The basics about OSHA’s Chemical Health Standards

  • How long chemical sampling data must be retained

  • When and how to share monitoring data with employees and regulators

  • Prudent actions and policies to ensure your employees are protected from chemical exposures in the workplace without creating OSHA enforcement pitfalls    

Responding to MSHA Document Requests During Inspections, Investigations and Litigation

October 10, 2019

 

Presented by Nicholas W. Scala

MSHA regulations require that mine operators and independent contractors maintain certain records on-site and internally. There is no question that when an inspector requests these records, for the period they are required to be maintained, employers must comply. But what happens when MSHA inspectors, or special investigators, request documents outside these required records? What are the ramifications for turning non-required records over to MSHA, or not doing so?

This webinar will evaluate the document retention and production obligations of operators, and how to deal with document requests and production throughout different types of investigations or litigation.

   

​During this webinar, participants learned about:

  • Recordkeeping requirements at MSHA sites;

  • How to respond to MSHA document requests during inspection, investigations or litigation; and

  • Resolutions for document production demands outside the scope of required records.

Electrical Safety - Top 5 Reasons It's Important to Get It Right and Top 10 Employer Mistakes

September 24, 2019

 

Presented by Micah SmithAaron Gelb and Dan Deacon

Electrical safety has long been an enforcement priority for OSHA. OSHA's electrical standards are designed to protect employees against hazards of electric shock, electrocution, flash fires, and explosions.  Too often, workers and/or their employers are unaware of the potential electrical hazards present in their work environment, or more often, they are unfamiliar with the nuances of OSHA's regulatory requirements in this area.

This webinar highlighted the top 5 reasons why it is critical to get compliance with OSHA's electrical safety standards right, review the 10 most misunderstood and misapplied provisions of the applicable OSHA standards, and discuss strategies to limit exposure to the most common electrical safety violations.

   

​During this webinar, participants learned about:

  • The top 5 reasons to prioritize compliance with OSHA's electrical safety standards

  • Employer's 10 most common electrical safety mistakes

  • Steps employers can take to minimize exposure to electrical safety hazards and related OSHA violations

Strategies for Success in Collective Bargaining

September 18, 2019

 

Presented by Kara M. Maciel and Mark M. Trapp

This webinar will focus on strategies for success in your company’s next contract negotiations. Specifically, we will discuss how to effectively prepare for collective bargaining, as well as successful execution of the company’s strategy at the table, with particular emphasis on “big ticket” items such as withdrawal liability and ongoing participation in a multiemployer fund, maximizing savings on wages and benefits and regaining flexibility in the workforce.

   

​During this webinar, participants learned about:

  • Keys to effectively prepare for bargaining

  • How to prioritize and formulate strategies on difficult economic and operational issues

  • How to utilize appropriate tactics and techniques to reach a solid agreement incorporating the company’s desired changes

Mid-Year MSHA and FMSHRC Update

August 8, 2019

 

Presented by Nicholas W. Scala

An end of year review is always helpful, but with the ever-changing regulatory landscape, and a steady stream of Federal Mine Safety and Health Review Commission decisions, it is equally important to take stock of the landscape during each summer. We are in the thick of MSHA’s enforcement season and rounding out the last few months of the Agency’s fiscal year. What has changed since summer 2018 and how are the changes affecting the county’s mine operators and contractors?

 

This webinar will explore year-to-date enforcement trends and updates, while diving into relevant FMSHRC decisions that are directly impacting MSHA and the compliance responsibilities of operators.

   

​During this webinar, participants learned about:

  • MSHA enforcement trends and initiatives through mid-2019;

  • Impacts on mine operator compliance due to FMSHRC decisions; and

  • Strategies to prepare operations for changing enforcement tactics and standard interpretations.

Prepare For and Manage OSHA Inspections and Citations

July 23, 2019

 

Presented by Aaron R. GelbAmanda R. Walker and Lindsay A. DiSalvo

Confounding expectations, OSHA under Pres. Trump has continued the same aggressive enforcement model as we saw during the Obama Administration.  We are seeing more inspections, higher penalties, record numbers of $100K+ citation packages, and a continuing rise in willful and repeat citations and worker safety criminal prosecutions.  OSHA has also continued its aggressive inspection strategies that create a minefield for employers.  In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during an inspection, are more dire now than ever.

This webinar provided employers with the knowledge and tools they need to prepare in advance for an OSHA inspection, and once an OSHA inspection begins, to manage it to a successful outcome, and then make smart strategic decisions about handling citations that may result from the inspection. 

   

​During this webinar, participants learned about:

  • Employers’ Goals for managing an OSHA inspection

  • Steps employers can take now to prepare in advance for an OSHA inspection

  • Employers’, employees’, and OSHA’s rights during OSHA inspections

  • Stages of OSHA inspections, with tips and strategies to manage each stage

  • Post-Citation options and strategies

Best Practices for Protecting your Company's Primary Assets: Its Workforce, Trade Secrets and Customer Relationships

July 17, 2019

 

Presented by Jordan B. Schwartz and Daniel C. Deacon

The protection of trade secrets and confidential and proprietary Information are essential for companies.  As a result, employers must be vigilant against the continued threat of such information being compromised.  Proprietary and confidential information is at particular risk during times of significant employee movement.  Proactive companies should address this risk and appropriately protect and preserve data, as well as develop proactive policies for employee separations, such as requiring confidentiality agreements and non-compete and/or non-solicitation agreements.

   

​During this webinar, participants learned about:

  • How to identify trade secrets and determine who has/should have access

  • How to understand where data resides, how it is being used and accessed, and how your company can best protect it

  • Best practices for requiring employees to enter into non-compete/non-solicit agreements upon hire

  • Practices for safeguarding your company’s information upon an employee’s termination

  • Tips for hiring employees who may be subject to restrictive covenants with their former employer

Fate of Midnight Obama-Era OSHA Rules

June 18, 2019

 

Presented by Kate McMahon, Micah Smith, Dan Deacon and Beeta Lashkari

OSHA made several significant changes to its standards during the late stages of the Obama Administration.  After a several decades long effort, it updated the Walking Working Surfaces Standard (the regulation covering slips, trips and falls).  It published its controversial E-Recordkeeping Rule for injury and illness data submissions.  It also promulgated two new occupational health exposure standards for silica and beryllium after years of rulemaking.  And, it brought its Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals.  To name a few.

But, as midnight fell on the Obama Administration, so too did it fall on the fates of these rules.  Or did it?  While some executive agency regulations have been subject to additional rulemaking (or, more accurately, rule-rescinding) as expected given the Trump Administration’s promise for deregulation, others have remained untouched.  So, what is the fate of these, and other, midnight Obama-era OSHA rules?  In this webinar, we will make our predictions as to where the Rules may be headed, and offer our advice for how employers should prepare for OSHA enforcement in these areas.   

During this webinar, participants learned about:

  • Changes made to the Walking Working Surfaces Standard, E-Recordkeeping Rule, Silica and Beryllium Standards, Hazard Communication Standard, and other rules during the Obama Administration

  • How these Obama-era OSHA Rules have already changed (if at all) under the Trump Admin., and what future changes we may expect

  • What to do as an employer to avoid OSHA citations during a time of flux

Summer Loving - Managing Relationships in the Workplace, Nepotism and Other Interpersonal Issues

June 12, 2019

 

Presented by Andrew J. Sommer and Megan S. Shaked

Is love in the air?  Even in the age of dating apps, romantic relationships still often blossom at work.  How does an employer navigate these waters while protecting company productivity and morale and managing potential risk associated with such relationships? 

 

​Participants will learn about the following:​

  • Best practices for managing romantic relationships in the workplace

  • The do’s and dont’s of handling familial relationships within an organization

  • How to best manage interpersonal issues when they arise

  • The pros and cons of “love contracts” and other common policies

  • Tips for recognizing and avoiding potential risk of inappropriate relationships

  • Guidance on responding to related complaints of favoritism, harassment, and other related issues

Preventing and Defending MSHA Whistleblower Claims

June 4, 2019

 

Presented by Nicholas W. Scala

A priority under the Obama Administration across workplaces nationwide, the mining industry was not immune to the spike in discrimination cases brought forward by MSHA. While these cases may not receive the attention they once did, discrimination cases under Section 105(c) of the Mine Act remain an active area of MSHA investigation and prosecution, and perhaps one of the most costly and difficult allegations for operators to defend.

 

This webinar will provide an overview of those protected by Section 105(c), best practices for preventing such claims and how to defend your operation if a claim is brought forward.

 

During this webinar, participants learned about:

  • Protected activities and potentially adverse actions against miners;

  • How to survive an MSHA whistleblower investigation; and

  • Ways to defend a discrimination claim brought by MSHA or by a miner.

Key Cal/OSHA Issues that California Employers Must Track

May 28, 2019

 

Presented by Andrew J. Sommer, Eric J. Conn and Megan S. Shaked

The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation.  California employers face a host of requirements that other employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.  Of particular significance in the coming year, California employers should be on the lookout for a new permanent E-Recordkeeping injury data submission rule, a new focus on finding Repeat violations, and the roll-out of several new California-unique rules. 


​Participants in this webinar learned about:

  • Trends in Cal/OSHA Enforcement

  • New E-Recordkeeping electronic injury data submission requirements

  • The impact of Cal/OSHA’s Repeat Violation Rule

  • Cal/OSHA’s Expanded Statute of Limitations for Recordkeeping Violations 

  • Proposed Rules for Indoor Heat Illness, Workplace Violence in General Industry,
    and Protection from Wildfire Smoke

Hot Topics Involving Disability Access Laws - Websites, Animals & Allergies

May 15, 2019

 

Presented by Jordan B. Schwartz and Megan S. Shaked

In the past few years, plaintiffs have filed hundreds of lawsuits across the country alleging that owners and operators of hotels, restaurants, stores, and other places of public accommodation have been using websites that are inaccessible under the Americans with Disabilities Act (“ADA”).  This is on top of the hundreds of other “brick and mortar” lawsuits brought by plaintiffs alleging that certain physical components of hotels, restaurants and stores violate the ADA.  As if this were not enough, places of accommodation also continue to be faced with tricky and complex issues regarding service animals and customer allergies, both of which also often result in contentious lawsuits.  This webinar will present practical tips and tricks for managing the risk of litigation in this ever-evolving area of the law.


​Participants in this webinar learned about:

  • The broad scope of disability access laws and how employers are most often affected

  • Practical tips on website accessibility

  • Guidance on accommodating service and emotional support animals

  • Best practices when dealing with customers with severe allergies and autoimmune conditions such as celiac

Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards/Employee Safety Complaints

April 16, 2019

 

Presented by Kate M. McMahon and Lindsay A. DiSalvo

When OSHA receives a complaint related to employee safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to provide sufficient information to avoid an inspection or litigation of a retaliation claim.  A strong response could appease OSHA’s concerns and resolve the complaint or report in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.  Thus, employers must be strategic about the information they share at this early stage and should ensure there is a procedure in place for managing and developing these responses.

​Participants in this webinar learned about:

  • The types of complaints and incidents that lead OSHA to request information from the employer;

  • Specific prohibitions of Section 11(c) (OSHA’s anti-retaliation law) and how retaliation complaints are evaluated;

  • Strategies employers can use to effectively respond to Section 11(c) complaints, Notices of Alleged Hazards, and RRI requests; and

  • Proactive measures employers can take to avoid employee complaints.

What to Do During MSHA Accident and Injury Investigations

April 10, 2019

 

Presented by Nicholas W. Scala

The hours, days and weeks following an on-site accident are stressful and at times chaotic environments for employees and managers alike. While the well-being of any injured party is the priority, operators must also ensure appropriate action is taken to comply with MSHA regulations and assess the incident while taking steps toward preventing a similar occurrence.These concerns are enough to manage without the likely visit from MSHA to investigate, at which time inspectors will conduct employee interviews and issue citations and orders in the event of alleged noncompliance.

 

This webinar reviewed immediate compliance requirements following an accident, as well as strategies to limit exposure and protect company interests while allowing MSHA to complete its investigation.

 

During this webinar, participants learned about:

  • Responsibilities of mine operators and independent contractors in the event of an accident;

  • Miner and mine management rights during a subsequent MSHA investigation; and

  • Best practices for conducting internal accident investigations.

OSHA's New Site-Specific Targeting Enforcement Program

March 19, 2019

 

Presented by Amanda R. Strainis-WalkerAaron Gelb, and Dan C. Deacon

More than two years after OSHA published the E-Recordkeeping Rule, the agency finally revealed some of its plans for how it will utilize employers' 300A injury data collected under the new Rule. In late October 2018, OSHA launched its new Site-Specific Targeting Enforcement Program, which outlines how the agency will select non-construction establishments for programmed inspection. OSHA will create targeted inspection lists based on employers' higher than average Days Way, Restricted or Transfer (“DART”) injury rates.OSHA will also include a random sample of establishments with lower than expected injury rates for quality control. Thus, all employers covered by OSHA’s E-Recordkeeping Rule may be subject to an SST inspection.

Participants in this webinar learned:

  • Overview of data submission requirements of E-Recordkeeping

  • How OSHA selects establishments for inspection

  • Scope of inspections under the SST Program

  • Applicable exceptions to the SST inspections

  • Tips for Employers to Prepare for an SST inspection

Withdrawal Liability & Pensions

March 13, 2019

 

Presented by Mark M. Trapp

This webinar addressed the significant challenges faced by companies participating in multiemployer plans. Specifically, it will help unionized employers understand and analyze what is often the most critical challenge facing their business – multiemployer pension withdrawal liability. 

 

Participants learned about the following:

  • Specific strategies to analyze and potentially minimize withdrawal liability 

  • The latest developments in litigating withdrawal liability assessments, including the proper interest rate and the calculation of the credit for a prior partial withdrawal

  • Recently-proposed regulations by the PBGC that could have a huge impact on the amount employers pay for withdrawal liability

#MeToo Movement Update: Practical Strategies for Training, Investigations, and Discipline

February 20, 2019

 

Presented by Kara M. Maciel and Lindsay A. DiSalvo

In 2017, we saw the proliferation of the #MeToo Movement with a slew of high-profile allegations of sexual harassment and assault and tens of thousands of people, mostly women, voicing their own experiences on social media using the hashtag “Metoo”.  Its momentum continued into 2018, with more people coming forward to make allegations of sexual assault and harassment and the Movement’s purpose becoming an even more prominent and influential topic of discourse.  Its significance and impact has not slowed and its influence and impact is likely to be felt into 2019 and beyond.  So, what does this mean for employers?

In the wake of the #MeToo Movement, the amount of sexual harassment claims filed with the EEOC increased by almost 14% in FY 2018 versus FY 2017.  In addition, the EEOC filed 66 harassment lawsuits against employers in FY 2018, which is more than a 50% increase in EEOC suits challenging sexual harassment compared to FY 2017.  Thus, it is more important than ever for employers to ensure they are effectively preventing and addressing sexual harassment in the work environment through their policies, training, and investigative procedures.

Participants learned about the following:

  • The legal standards for sexual harassment and their nuances

  • Elements of an anti-harassment policy and complaint procedure

  • Elements of a sexual harassment training program

  • Best Practices for investigating complaints of sexual harassment 

  • Recommendations for how to respond to sexually harassing conduct

Updates About OSHA's E-Recordkeeping and Significant Injury Reporting Rules

February 12, 2019

 

Presented by Eric J. ConnLindsay A. DiSalvo, and Dan C. Deacon

OSHA’s controversial E-Recordkeeping and Anti-Retaliation Rule has been challenged and criticized by stakeholders since its inception, with expectations that OSHA under a Trump Administration would revise or rescind the Rule.  Despite all that, multiple enforcement deferrals, and two legal challenges that were Stayed pending the Trump Administration’s re-evaluation of the Rule, all elements of the rule are currently in effect, including injury data submission requirements and limits to post-injury drug testing and safety incentives.  Indeed, the Trump Administration has done very little to narrow the Rule.  On July 30, 2018, OSHA issued a notice of proposed rulemaking to eliminate only the requirement for very large establishments to submit 300 and 301 data, but did nothing to alleviate the data submission burdens on smaller employers, and did not address the controversial anti-retaliation provisions at all. Also, the delinquent State OSH Programs are catching up with Fed OSHA’s E-Recordkeeping requirements.

Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule, has created significant new interactions between employers and OSHA since it went into effect in January 2015.  Many employers still wrestle with the nuances of when and how to report significant injuries, hospitalizations, amputations, and fatalities to OSHA.  In particular, employers are frequently over-reporting hospitalization events and struggling to determine what constitutes a reportable amputation. 

During this webinar, participants learned about:

  • Data submission and Anti-Retaliation elements of the E-Recordkeeping Rule

  • OSHA enforcement of E-Recordkeeping and Anti-Retaliation Rule

  • State Plan implementation of E-Recordkeeping requirements

  • When and how to report significant injuries and fatalities

  • Nuances of determining whether a trip to the hospital is reportable

MSHA 2018 in Review and 2019 Predictions

February 7, 2019

 

Presented by Nicholas W. Scala

To prepare for the future of MSHA enforcement, it is essential to review the past. A review of 2018’s trends, initiatives and statistics will set the table for a discussion of what to expect from the Agency moving forward. Specifically, this webinar will look at potential rulemaking topics as we enter the second year with Assistant Secretary Zatezalo at the helm, and how the “One MSHA” merger of the Coal and Metal/Nonmetal divisions could affect operators.

 

During this webinar, participants learned about:

  • 2018 MSHA enforcement statistics and trends;

  • Potential 2019 rulemaking targets and MSHA initiatives; and

  • Effects of current enforcement focus areas and the “One MSHA” reconfiguration.

California Employment Law Update for 2019

January 22, 2019

 

Presented by Andrew J. Sommer & Beeta B. Lashkari

In the final days of California’s 2018 legislative session, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new laws addressing the #MeToo movement and increased efforts to address harassment and discrimination in the workplace.  While many of the new laws impose additional requirements on employers, a few clarify the reach of existing employment laws or carve out exceptions to wage and hour requirements for certain industries.  This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and recent court decisions and best practices for avoiding potential employment-related claims.

Participants learned about the following:

 

  • Expanded anti-harassment training requirements covering both supervisory and nonsupervisory employees

  • Limits on confidentiality of settlement agreements involving certain types of claims for sexual assault, harassment and discrimination

  • Limits on releasing claims of discrimination and harassment as a condition of employment, continued employment or in exchange for a raise or bonus

  • Expansion of privilege protections to cover communications with prospective employers about sexual harassment

  • New training requirements for hotels regarding human trafficking

  • Clarification of the existing prohibition against considering an applicant’s salary history

  • Clarification of existing lawmaking construction contractors liable for their subcontractors’ wage violations

  • New exceptions to meal period requirements for certain motor carriers and rest period requirements for certain employees in the petroleum industry

  • Temporary carve-out from PAGA liability for construction employees covered by collective bargaining agreements

  • New requirements concerning lactation accommodations

  • Significant new court decisions concerning the independent contractor relationship, wage and hour requirements and the enforceability of existing California law prohibiting employers from volunteering personnel information to immigration authorities 

  • Current minimum wage requirements both statewide and on local level

 

The webinar also addresses steps employers can take to achieve compliance including evaluating current personnel practices and updating employee handbooks, employment agreements and training protocol.

Top 5 OSHA Issues to Track in 2019

January 15, 2019

 

Presented by the Partners in the OSHA Practice Group at Conn Maciel Carey

The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, it is time to look at what we can expect from OSHA as we transition to the out years of President Trump’s first term.  In this webinar event, the Partners in the OSHA Practice Group at Conn Maciel Carey reviewed OSHA enforcement, rulemaking, and other developments from 2018, and  discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

Participants in this webinar learned the following:

  • 2018 OSHA enforcement data and trends

  • The future of OSHA enforcement

  • Rulemaking and deregulatory developments and predictions

  • Significant OSHA policy issues to watch out for in the New Year

  • Significant OSHA cases decided in 2018 and to be decided in 2019

The Intersection of OSHA and the ADA: How Two Labor Laws Align and Diverge

December 4, 2018

 

Presented by Jordan B. Schwartz and Lindsay A. DiSalvo

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.” Although OSHA portrays this policy as straightforward, in practice, it can be difficult to determine when and how to accommodate a disability under the Americans with Disabilities Act, while also protecting the safety of the disabled employee and his or her co-workers.  This assessment can be further complicated when the employer is unaware a disability may cause or contribute to a workplace safety issue.  The importance of understanding the laws at play in this context has increased, and will continue to increase significantly, due to the aging workforce, and the unique challenges these types of workers may face.

​The ADA also requires that medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided when recording injuries and illnesses for OSHA Recordkeeping.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA regulations impact an employer’s ability to drug test employees and what it can do with information from a drug test.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

During this webinar participants learned:

  • Requirements related to ADA disability accommodation, and how to evaluate an accommodation in the context of legitimate safety concerns

  • How to address unsafe conditions or performance related to an employee disability

  • Best practices to foster safety in the context of an aging workforce

  • ADA and OSHA compliant responses to suspected employee drug or alcohol use

  • Injury and illness recordkeeping practices related to employee disabilities

Managing the Workplace Environment in the U.S. and China

November 14, 2018

 

Presented by Kara M. Maciel and Micah Smith of Conn Maciel Carey and Vivian Mao of Dezan Shira & Associates

The webinar covered how to effectively manage your workforce and reduce the risk when opening new businesses in China or the U.S., as well as an overview of the relevant laws in both countries, introducing regulations on wages/hours, discrimination, and work safety requirements with practical advice and real case studies to be shared throughout. We also compared workplace regulations in the two countries, explaining differences from regulatory, regional and cultural aspects, and potential pitfalls, opportunities and best practices.

The webinar covered the below key topics:

Conn Maciel Carey LLP:

  • Top workplace challenges to consider when opening a business;

  • Overview of the wage/hour laws and best practices for the implementation;

  • Discrimination laws in the U.S. and how they may affect your business;

  • Introduction to the workplace safety requirements in the U.S.

 

Dezan Shira & Associates :

  • Utilizing the different methods of hiring methods for the manufacturing industry in China; A comparison between Direct Hire, Dispatch, Outsourcing and utilizing Independent Contractors in China. Practical advice on the best practices;

  • Introduction to the standard working hour/wage system as well as special piecework system applicable in manufacturing sector in China;

  • An overview of China laws against hiring method, sexual, disabled, epidemical, religious and racial discrimination;

  • What are work safety liabilities in China and what it means for US businesses managing operations in China.

Strategies for Employee Retention/Combatting Unconscious Bias in the Workplace

November 14, 2018

 

Presented by Aaron R. Gelb and Daniel C. Deacon

The cost of worker attrition weakens a company’s bottom-line profits.  Between lost productivity, recruitment costs, and training costs, employee turnover ends up costing companies millions of dollars annually.  This webinar will discuss various strategies to help companies recruit, retain and advance highly performing employees to alleviate the burden of dealing with never-ending employee turnover and create stability in your workforce.  This webinar will also address unconscious bias at work, and show how your company can promote self-aware decision making, designed to further improve your ability to recruit and retain highly successful employees.

Process Safety Update: The Latest with OSHA PSM & EPA RMP

November 13, 2018

 

Presented by Eric J. ConnMicah Smith, and Beeta B. Lashkari

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

Then President Trump took office with a de-regulatory agenda.  Just days into office, key safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined. So where does that leave OSHA’s and EPA’s efforts to change the structure of process safety management?  This webinar reviewed the status and likely future of OSHA’s PSM Standard and EPA’s RMP Rule, and other major safety and health related developments rolling out in the early stages of the Trump Administration.

Unwarrantable Failures: Evaluating the Causes and Effects

November 7, 2018

 

Presented by Nicholas W. Scala

Whether having received one, been threatened with one by an inspector, or heard of an issuance to another company, most operators have at least heard the terms 104(D) or Unwarrantable Failure. These are some of MSHA’s most powerful enforcement tools, and the stakes for additional enforcement and liability significantly increase after the issuance, in addition to the penalties. This webinar will review the definition of Unwarrantable Failures, both through MSHA regulation and guidance and the cases that govern them.

 

During this webinar, participants learned about:

 

  • What is an unwarrantable failure, and how and why these are issued by MSHA;

  • The criteria that must be evaluated when determining whether or not to classify a violation as an unwarrantable failure; and

  • Potential effects of receiving an unwarrantable failure, including explanation of the “D-Chain” and agent liability concerns under Section 110.

A Business Primer on Disability Access Laws: Preventive Tools and Defense Strategies

October 25, 2018

 

Presented by Kara M. Maciel and Andrew J. Sommer 

Businesses continue to be plagued by litigation under the Americans with Disabilities, Title III (ADA) over alleged access barriers.  Lawsuits against hotels and retailers, among other public accommodations, appear to be on the rise with a disproportionate share in California.  This webinar provides an overview of ADA, Title III standards as they apply to construction existing before the enactment of the ADA in 1992 as well as to subsequent new construction and alterations.  The webinar also addresses measures that can be taken to prevent ADA lawsuits and strategies for successfully defending these lawsuits when they arise.  Special focus will be place on trends including the recent proliferation of lawsuits over website accessibility and auxiliary aids for hearing impaired.

Everything You Never Wanted to Know about OSHA Repeat, Willful and Egregious Violations

October 16, 2018

 

Presented by Eric J. Conn and Amanda R. Strainis-Walker

In 2016, OSHA sharpened its teeth considerably, when Congress ordered OSHA to increase its maximum civil penalty authority by 80%.  Now, OSHA violations characterized as Repeat or Willful carry penalties up to $126,000 each.  So what are Repeat and Willful violations?  And what are these “Egregious” violations OSHA has been using more and more often to generate multi-million dollar enforcement actions?

This webinar explains the legal standard for Repeat, Willful and Egregious violations, the potential consequences for receiving them, and how OSHA’s enforcement policies have resulted in a significant increase in the frequency with which we see these aggravated characterizations.

 

Participants in this webinar learned the following:

  • The legal standards OSHA must meet to establish Repeat and Willful violations

  • Background and details about OSHA's Egregious / Per-Instance Enforcement Policy

  • Policy changes that have resulted in more Repeat and Egregious violations

  • Impacts of these aggravated characterizations, including qualifying into the Severe Violator Enforcement Program, facing criminal charges, etc.

  • What employers should do to avoid Repeat and Willful citations

Responsibilities and Regulations with Independent Contractors

September 26, 2018

 

Presented by Nicholas W. Scala

Independent contractors continue to be an integral part of the mining industry. While contractors work at mines across the country each day without issue, production operators and contractors must be aware of the delineation of liability and responsibility when working together. Not only are there concerns of enforcement liability with MSHA for the actions of each company upon the other, but civil litigation exposure in the event of accidents or injuries. This webinar will review the delineation of responsibilities for each operator on a site, both production and independent contractor, and provide strategies for working cooperatively while protecting each company’s interests.

 

During this webinar, participants will learn about:

 

  • Liability under the Mine Act for all operators working at a mine;

  • MSHA’s ability to cite both companies for the violations of the one operator; and

  • Best practices for working together and allocation of responsibilities on site.

Lessons Learned from OSHA's Updated Walking/Working Surfaces Rule

September 18, 2018

 

Presented by Micah Smith and Dan Deacon

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

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

  • The new requirements for managing slip, trip and fall hazards in general industry

  • Criteria for fall protection equipment and ladder safety 

  • Updates to the General Industry Scaffold Requirements

  • Effective dates for various aspects of the new Walking / Working Surfaces Standard

Tips for Handling Workplace Substance Abuse under the ADA, Marijuana and Drug Testing

September 12, 2018

 

Presented by Jordan B. Schwartz and Lindsay A. DiSalvo

Substance abuse - of both legal and illegal drugs - can be an expensive problem for businesses.  There are several issues that employers may face due to drug addiction, including lost productivity, injuries, theft, absenteeism, and legal liability.  To ensure that employers are protecting their business, employers must ensure that they have a clear drug testing policy that is applied consistently.  In drafting this policy and enforcing it, employers must carefully navigate the Americans with Disabilities Act (ADA), the Occupational Safety and Health Act (OSHA), and applicable state discrimination laws to ensure that it does not face legal trouble.    

 

Although existing substance abuse is not protected by the ADA, it does protect recovering and recovered alcoholics and drug addicts from discrimination, which presents difficulties in enforcing a drug testing policy.  Employers must also be careful about what drugs it tests for, and when.  Additionally, pursuant to the anti-retaliation provisions in OSHA’s Electronic Injury and Illness Recordkeeping Rule, employers are not allowed to conduct blanket post-incident drug tests.  Finally, employers must take into consideration the issues raised by state discrimination laws, especially in light of the passage of state laws permitting medicinal use of marijuana – a substance that is still banned under the Controlled Substances Act.  This webinar will discuss the legal factors that employers must consider when drafting and enforcing drug testing and zero-tolerance policies, and how employers can simultaneously protect their business and respect their employee’s privacy.

Status and Future of OSHA's Policy of Public Shaming

August 21, 2018

 

Presented by Eric J. Conn and Aaron R. Gelb

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

During this webinar, participants learned about:

  • Details of OSHA's current Enforcement Press Release policy

  • OSHA's use of public shaming in the Severe Violator Enforcement Program

  • Status of OSHA's intent to publish injury data collected through the E-Recordkeeping Rule

  • OSHA's policy for publishing fatality information

  • PR strategies to consider if you are the target of one of OSHA's shaming campaigns

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