During CONVEY ’18 this summer, Eric Conn, a founding partner of Conn Maciel Carey in Washington, D.C., and chair of the firm’s national OSHA Workplace Safety Practice Group, will provide a thorough overview of the most important aspects of an Occupational Safety and Health Administration (OSHA) inspection.
CONVEY ’18, hosted by the NGFA and Grain Journal Magazine, is to be conducted July 25-26 at the Hilton Omaha hotel in Omaha, Neb., where speakers and attendees will focus on operations, compliance and grain quality issues facing the grain, feed and processing industry, including the interactive workshop that walks attendees through best practices during an inspection.
Conn will join Tom Bielema, regional director of Safety Controls Technology in Chicago and former OSHA area director, to inform attendees on how to prepare for an OSHA inspection from both an attorney’s and former OSHA inspector’s perspective. They’ll cover how to best conduct the opening conference and document review aspect of the inspection, as well as how to deal with citations and informal conferences with OSHA.
Conn answered a few common questions about the agency’s enforcement practices:
Q: How do you work with grain industry members in your role?
Conn: “My OSHA practice at Conn Maciel Carey has enjoyed a great partnership with NGFA for years now. We have spoken on OSHA issues at many NGFA and state grain association conferences and safety meetings, helped develop safety guidance for NGFA, and advocated to federal OSHA for policy and enforcement changes for the grain industry. Through these opportunities, our OSHA team has been fortunate to forge relationships with many individual leaders at NGFA-member companies, and subsequently to represent them in their dealings with federal OSHA and approved State OSH Plans. This includes helping to manage inspections under the various Grain Handling Local Emphasis Programs, inspections and investigations involving explosions, engulfments, entanglements, falls from the tops of railcars, etc., and, unfortunately, OSH Act criminal investigations and prosecutions. For example, we negotiated the settlement with OSHA that became the basis for OSHA’s new Sweep Auger Safety Policy, which restored the right to work inside grain bins with energized sweep augers.
“In other significant enforcement matters, we have negotiated to eliminate Willful violations and to extricate numerous grain handlers from OSHA’s dreaded Severe Violator Enforcement Program. We also have provided OSHA-related compliance counseling to help grain industry employers develop compliant safety and health programs, audit their programs, and deliver effective safety and health training. In short, we have been privileged to work with great employers in the grain industry across the country to provide the full range of workplace safety and health regulatory counsel.”
Q: Under the Trump administration, is OSHA more likely to focus on compliance assistance rather than enforcement until the new Assistant Secretary of Occupational Safety and Health is confirmed? Will OSHA enforce current national, regional and local emphasis programs?
Conn: “There’s no mistaking that OSHA during the Obama administration was heavily focused on enforcement, almost to the exclusion of compliance assistance and cooperative programs. We saw significant increases in the number of inspections conducted, the average penalty per violation, the number of cases with cumulative penalties of $100,000-plus, the percentage of citations characterized as Repeat or Willful, nasty enforcement press releases, and criminal prosecutions.
“Certainly, the expectation after President Trump was elected was that enforcement across all executive agencies, including OSHA, would contract. Indeed, in all prior Republican administrations, OSHA has operated with more of a balanced approach between enforcement and compliance assistance, although never abandoning its enforcement mission. The tone of President Trump’s campaign, with repeated references to deregulation, suggested OSHA might move further from its enforcement mission than even prior Republican administrations.
“However, the present reality is that OSHA is operating like this is year 10 of the Obama administration. We still do not have a Trump-appointed OSHA administrator and OSHA appears to be fairly low on the priority list for this administration. With the career folks still essentially running the show, we have not seen any contraction in enforcement. In fact, last year, OSHA increased the number of inspections it conducted for the first time in several years and it issued more $100,000-plus citation packages than in the entire history of the agency.
“However, we have seen some encouraging signs of support for compliance assistance and cooperative programs, including, in particular the new Alliance between OSHA and the grain -industry through NGFA, as well as efforts to improve the VPP Program. But it still remains to be seen if the seismic shift in OSHA enforcement that many expected is ever realized. The Senate confirming President Trump’s choice for Assistant Secretary of Labor for OSHA would go a long way.”
Q: Can OSHA still enforce the safety incentive and drug-testing sections of the revised recordkeeping standard?
Conn: “Not only can OSHA enforce the new anti-retaliation elements of the Electronic Recordkeeping Rule, it is actively doing so right now. OSHA has promised to revisit this rule and just sent to OMB for approval a notice of proposed rulemaking to do so. Unless or until that new rule is proposed and finalized, and that rulemaking changes the anti-retaliation provisions, OSHA will continue to enforce those elements.
“However, OSHA has softened its interpretation around the two most controversial issues in those provisions – safety incentives and drug testing. Specifically, OSHA no longer outright prohibits safety incentives tied to lagging indicators, like injury rates. Such incentives are permissible now so long as they are coupled with program elements that promote and enforce the requirement to report all workplace injuries.
“As for drug testing, most work-related drug testing is unaffected by the rule (e.g., pre-employment and random drug testing), and now, OSHA also accepts post-injury drug testing so long as there is an investigative purpose for the test; i.e., drug use is a possible cause of the type of incident that occurred, such as crashing a forklift.”