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OSHA’s Top Regulatory Priorities… Other than COVID-19


By Eric J. Conn

OSHA has been quite busy the last few months on the rulemaking front, and it does not seem to be slowing down. Despite the fact that COVID-19 still sucks most of the air out of the room, over the last six months, OSHA still managed to:

  1. Publish a new proposed regulation to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule; aka, the Electronic Recordkeeping Rule;
  2. Initiate an enforcement National Emphasis Program (NEP) addressing Outdoor and Indoor Heat Illness Prevention; and
  3. Launch a rulemaking for a Heat Illness Prevention Standard.

Below is an analysis of these major OSHA regulatory developments:

OSHA’s Rulemaking to Expand the E-Recordkeeping Rule

OSHA's E-Recordkeeping Rule has had a long and tortured history. In 2016, former President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to electronically submit injury and illness data to OSHA. In 2019, the Trump Administration amended the rule to remove the most onerous requirement – for very large establishments with 250+ employees to submit detailed injury information from OSHA Forms 300 and 301 Incident Reports.

Fast forward to 2022 and the return of a Democratic Administration, and we are seeing Biden’s OSHA revisit many of the Trump Administration’s policies. In the context of E-Recordkeeping, the new Administration is not content to just rollback the Trump rollbacks, but seems set on over-compensating; i.e., pushing the E-Recordkeeping Rule even further than when it was first issued during the Obama Administration.

Pict Rider / Getty Images

OSHA has been quite busy the last few months on the rulemaking front, and it does not seem to be slowing down.

Specifically, under new proposed amendments to the E-Recordkeeping Rule workplaces with 20+ employees in certain high-hazard industries (listed in new Appendix A) will still be required to electronically submit information only from their OSHA Form 300A Annual Summary, but now, OSHA intends to require workplaces with 100+ employees (rather than the prior 250+ employee threshold) in certain high hazard industries (listed in new Appendix B) to annually electronically submit to OSHA the information from their full panoply of OSHA recordkeeping records – 300 Logs, 301 Incident Reports, and 300A Annual Summaries.

Why Is The E-Recordkeeping Rulemaking Important?

As many as tens of thousands more establishments will be covered by the proposed amended E-Recordkeeping Rule – as one of the major coverage thresholds will be 100+ employees (rather than 250+) – and the scope of the data required to be submitted is significantly greater and more invasive.

300A Annual Summary data is pretty barebones – just the number of recordable cases, total manhours worked, and the total number of cases meeting various recording criteria. Requiring submission of data from 300 Logs and 301 Incident Reports means that OSHA will have custody of the details about individual recordable cases, with employee names, particulars about the parts of their bodies that were injured, information about their medical treatment – an entirely differently kind of look under the hood than the last five years under the E-Recordkeeping Rule.

This has huge implications for employee privacy, as well as great potential for harmful use of the data against employers by plaintiffs’ attorneys, insurance companies, union organizers, competitors, the media, etc. Moreover, OSHA intends to utilize the collected data to target its enforcement resources.

What Happens Next for the E-Recordkeeping Rulemaking?

OSHA has recently extended its public comment on the new proposal to June 30. Conn Maciel Carey’s OSHA Team is organizing a fee-based coalition of employers and trade groups to prepare comments and otherwise advocate for the most reasonable possible E-Recordkeeping Rule. Here are links to a recording and a copy of slides we used during a recent coalition kick-off call. Contact Eric Conn if you have any questions about the rulemaking process, the proposed amendments to the rule, or the plans for the rulemaking coalition.

OSHA’s Initiatives to Address Outdoor and Indoor Heat Illness Prevention

At the end of 2021, OSHA published in the Federal Register an Advanced Notice of Proposed Rulemaking (ANPRM) initiating a new formal rulemaking focused on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.”

The ANPRM announced:

“OSHA is initiating rulemaking to protect indoor and outdoor workers from hazardous heat and is interested in obtaining additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. This ANPRM provides an overview of the problem of heat stress in the workplace and of measures that have been taken to prevent it. This ANPRM also seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required.”

The ANPRM and the many questions OSHA posed to interested stakeholders signals a broad rule covering outdoor and indoor work settings, which likely will include provisions requiring:

  • Written Heat Illness Prevention Programs;
  • Engineering controls (e.g., A/C, shade tents, cooling rooms);
  • Administrative controls (e.g., change workload/schedule work-rest cycles, self-pacing, cool down rest breaks);
  • Potable water (employer as water police);
  • Rigid acclimatization requirements;
  • Training for employees and supervisors;
  • Physiological, medical, and exposure monitoring; and
  • Emergency response plans.

Conn Maciel Carey’s OSHA team is also leading a coalition of employers and trade groups to participate this Heat Illness Rulemaking with a goal of helping to shape any heat standard that OSHA ultimately promulgates in such a way that the rule is palatable to Industry.

OSHA Also Launched a Heat Illness Prevention National Emphasis Program

While we wait the years it will take OSHA to complete the Heat Illness rulemaking, OSHA has also kicked-off an enforcement National Emphasis Program (NEP) addressing that same hazard. Industries covered by OSHA’s latest NEP include general industry, construction, maritime, and agriculture.

This emphasis program is intended to augment OSHA’s current heat illness enforcement, which just involves complaints, referrals, and severe incident reports, by now adding an enforcement program targeting specific high hazard industries or activities in workplaces where the heat hazard is prevalent, such as working outdoors in a local area experiencing a heat wave as announced by the National Weather Service, or working indoors near radiant heat sources, such as iron and steel mills and foundries.

According to the NEP Directive, “each Region is expected to have a fiscal year goal of increasing their heat inspections by 100% above the baseline of the average of fiscal years 2017 through 2021.”

In addition, the NEP focuses on vulnerable workers in outdoor and indoor environments by coordinating efforts with the Department of Labor’s Wage and Hour Division. Specifically, when the weather is hot or a heat alert is issued for an area where the Wage Division is investigating, they are encouraged to make timely referrals to OSHA.

How Does the NEP Work?

The NEP directs CSHOs who are investigating for other purposes to open or refer a heat related inspection for any hazardous heat conditions observed, recorded in the OSHA 300 logs, or where an employee brings a heat related hazard(s) to the attention of the CSHO (such as, employees or temporary workers exposed to high temperature conditions without adequate training, acclimatization, or access to water, rest and shade).

As part of the NEP, OSHA will initiate programmed (pre-planned) inspections in indoor and outdoor work settings in approximately 70 high-risk industries when the National Weather Service has issued a heat warning, alert, or advisory for a local area. To see the full list of covered industries, click here (Appendix A).

The NEP establishes heat priority days when the heat index is expected to be 80 F or higher, when the agency will inquire during inspections regarding the existence of any heat-related hazard prevention programs.

What is OSHA’s Citation Guidance Under the NEP?

No surprise – CSHOs are instructed to determine whether there is sufficient evidence to issue a General Duty Clause citation for heat-related hazards.  Several other specific OSHA standards may also be applicable to address worker protection in hot environments, such as personal protective equipment, sanitation (potable water), medical services and first aid, and recordkeeping.


Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.



Tagged categories: Epstein Becker Green; Health & Safety; Health and safety; Laws and litigation; OSHA; Asia Pacific; EMEA (Europe, Middle East and Africa); Government; Hazards; Heat-related injury; Latin America; North America; Regulations; Safety; Workers; Z-Continents

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