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By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: Due to Senate Rules, the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health, has now been “returned” to the Senate for consideration.

President Trump’s nomination of Scott Mugno to head OSHA  was approved by Senate Committee on December 13, 2017, but it was not put to a full senate vote by the end of the year forcing a restart of the whole nomination procedure.  Accordingly, Mugno is back before the Committee on Health, Education and Labor and Pensions for another vote recommending that Mugno’s appointment proceed to a full Senate vote.  No new date for a vote is currently set which will continue to delay the new administration’s safety and health policies.

A copy of Mugno’s December 5, 2017, written statement before the Senate Committee is available for review.

We will continue to monitor the status of this nomination.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2018 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2017 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2018 inflation adjustments which will nudge the penalties even higher.  83 Fed. Reg. 7 (Jan. 2, 2018).

Under the 2018 rule, the maximum OSHA civil penalties will be:

2017 Penalties 2018 Penalties
Other than Serious violations: $12,675 $12,934
Serious violations: $12,675 $12,934
Repeat violations: $126,749 $129,336
Willful violations: $126,749 $129,336
Failure to abate (per day): $12,675 $12,934

The new OSHA penalty amounts are applicable to OSHA citations issued after January 12, 2018, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: In a win for labor, the DC Circuit Court of Appeals orders the remand of the Crystalline Silica Standard for Construction and General Industry (Silica Rule) for OSHA to explain its decision to omit medical removal protections.

In a decision this morning, the U.S. Court of Appeals for the District of Columbia has remanded the Silica Rule to OSHA, holding that “OSHA was arbitrary and capricious in declining to require [medical removal protection] for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate COPD symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination.”  The Court remanded the Rule to OSHA to reconsider or further explain those aspects of the Rule.  North America’s Building Trades Unions v. OSHA, No. 16-1105 (December 22, 2017).

This is a win for labor that had fought to have the measures included in the new Rule.  The Court rejected other challenges to the Rule raised by business and industry groups.

We have previously blogged about crystalline silica and this rulemaking, including OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards, OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction, OSHA Proposes Silica Worker Exposure Hazards Rule, and New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries.

We will continue to keep readers updated as this issue progresses.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, Ilana R. Morady, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA’s has indicated in a news release that it “will continue accepting 2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on December 31, 2017.”

Notably, OSHA will not take enforcement action against those who submit their reports after the December 15, 2017, deadline but before December 31, 2017, final entry date. “Starting January 1, 2018, the ITA will no longer accept the 2016 data.”

We had previously blogged on OSHA’s notice that the deadline for submitting 2016 Form 300A for establishments with 250 or more employees (or with 20-249 employees operating in what OSHA deems to be “high-risk industries”) was delayed to December 15, 2017. Also included in the notice delaying the submission deadline to December 15, 2017 was an indication that OSHA “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions” of the “Improve Tracking of Workplace Injuries and Illnesses” rule, in 2018.

This stated intent has now been formalized through the Agency’s publication of a rulemaking Agency Agenda item, RIN 1218-AD17 (December 18, 2017).  The item notes that:

OSHA proposes to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information form the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). In addition, OSHA seeks comment on the costs and benefits of adding the Employer Identification Number (EIN) to the data collection to increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match OSHA-collected data to BLS Survey of Occupational Injury and Illness (SOII) data and potentially reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS (for SOII).

This may further signal welcome relief from certain requirements strongly opposed by the employer community.

We will continue to monitor OSHA’s activities relating to this rule.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: The Senate Nominations Committee, during a December 13, 2017 meeting, approved the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health,.

Mugno will now move on to the next step, for final approval.

The Congressional website indicates that Mugno has been “placed on Senate Executive Calendar…. Subject to nominee’s commitment to respond to requests to appear and testify before any duly constituted committee of the Senate.”

We will continue to monitor the status of this nomination.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: The Senate Nominations Committee has scheduled a vote on the Trump nomination, Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health.

On December 5, 2017, the Senate held a hearing on Mugno’s nomination.  Interested parties may watch the hearing video through the Senate’s website link.  The Committee is now scheduled to vote on Mugno’s nomination tomorrow, December 13, 2017.  If confirmed, Mugno will serve as the Administrator of the federal Occupational Safety and Health Administration (OSHA).  Mungo would replace Dr. David Michaels, who left the Agency last year.

Mugno was most recently the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground.  Employers are hopeful that Mugno will refocus the Agency away from David Michael’s hard emphasis on enforcement and implement measures designed to improve workplace safety through cooperative compliance programs such as the Voluntary Protection Program (NPP).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, Ilana R. Morady, and Patrick D. Joyce,

Seyfarth Synopsis:  OSHA’s has indicated in a news release that it “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions” of the “Improve Tracking of Workplace Injuries and Illnesses” rule, in 2018.

We recently blogged on OSHA’s notice that the deadline for submitting 2016 Form 300A for establishments with 250 or more employees (or with 20-249 employees operating in what OSHA deems to be “high-risk industries”) was delayed to December 15, 2017.

Also included in the notice delaying the submission deadline to December 15, 2017 was an indication that OSHA “intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions” of the “Improve Tracking of Workplace Injuries and Illnesses” rule, in 2018. This is the first written indication by OSHA of a timeline by which it intends to “reconsider, revise, or remove portions” of the Rule, and may signal welcome relief from certain requirements strongly opposed by the employer community.

We will continue to monitor OSHA’s activities relating to this rule.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: Senate hearing scheduled for the White House pick, Scott A. Mugno, as the new Administrator of  OSHA.

We noted previously that the White House announced on October 27th that it had nominated Scott A. Mugno to be the Assistant Secretary of Labor, Occupational Safety and Health.  If confirmed, Mr. Mugno will serve as the Administrator of the federal Occupational Safety and Health Administration (OSHA).  Mr. Mungo would replace Dr. David Michaels, who left the Agency on January 10, 2017.

The Senate has now scheduled its hearing on the Mugno nomination for next week, Tuesday, December 5, 2017.  Interested parties may watch the hearing live through the Senate’s website link.

Mr. Mugno was most recently the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground.  If he is confirmed, employers are hopeful that Mr. Mugno will refocus the Agency away from David Michael’s hard emphasis on enforcement and implement measures designed to improve workplace safety through cooperative compliance programs such as the Voluntary Protection Program (NPP).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, James L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, Ilana R. Morady, and Patrick D. Joyce

Seyfarth Synopsis:  As most employers probably know by now, OSHA’s revised recordkeeping rule requires certain employers to electronically file injury and illness data with OSHA. Originally the reporting deadline was July 1, 2017. OSHA has again extended the deadline, this time to December 15, 2017.

During the previous extension period, it appeared that OSHA might be reconsidering the rule, with a possibility of modifications or a complete revocation of the rule by December 1, 2017. However with the recent extension to December 15, it appears that the rule will remain unchanged for the time being and that covered employers must report by the new deadline.

As a reminder, establishments with 250 or more employees must submit information electronically from their 2016 Form 300A by December 15, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) beginning in 2018.

Establishments with 20-249 employees operating in what OSHA deems to be “high-risk industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by the December 15, 2017 deadline. These same employers will continue to only submit information from their 300A forms in later years.

Although OSHA’s electronic reporting webpage experienced malfunctions earlier this year, the webpage now appears to be working.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Benjamin Briggs, James L. Curtis, Adam R. Young, Daniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: The White House picks Scott A. Mugno as the new Administrator of federal OSHA.

The White House announced on October 27th that it has nominated Scott A. Mugno to be the Assistant Secretary of Labor, Occupational Safety and Health.  If confirmed, Mr. Mugno will serve as the Administrator of the federal Occupational Safety and Health Administration (OSHA).  Mr. Mungo will replace Dr. David Michaels, who left the Agency on January 10, 2017.

Mr. Mugno currently serves  as the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground in Pittsburgh, Pennsylvania.  Mr. Mugno previously served at FedEx as the Managing Director, Corporate Safety, Health and Fire Protection, and as a Senior Attorney.  Prior to FedEx, Mr. Mugno was a Senior Counsel at Westinghouse Electric Corporation, and a member of the Judge Advocate General’s Corps.  Mr. Mugno is a graduate of Washburn University School of Law, and St. John’s University, Jamaica, New York.

In the past, Mr. Mugno has advocated at the United States Chamber of Commerce for the review and elimination of outdated safety regulations.  If he is confirmed, employers can anticipate that Mr. Mugno will be a strong supporter of  the Trump Administration’s anti-regulatory stance on issues such as post-accident drug testing, incentive programs, and voluntary protection programs (VPP).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.