Transcript
Feed & Grain: me today though, I really appreciate it.
Eric Conn: Of course.
Aaron Gelb: Yeah.
Eric Conn: A pleasure. Thanks for the invite.
Feed & Grain: Oh, no, happy to have you. Like I said, I'm a big fan of your blog. ah So it's a little bit like I have a celebrity on here.
Aaron Gelb: Okay.
Eric Conn: Well, yeah, we get that all the time.
Feed & Grain: ah So just a quick ah overview of how this all works is we'll record here. ah You can see us recording down there in your timeline. ah But Once this is done, I'll edit it probably sometime next week and then I'll send you guys a copy. You'll be able to listen to it. Make sure it all sounds the way you want it to sound. Make sure you don't misspeak or anything like that or want anything cut. You know you start you go nuts and start talking trash about a bunch of clients. Don't worry, I'll cut that out. And if I miss it,
Feed & Grain: ah you can tell me to cut it out later. So ah point being, you'll be able to hear this before it ever goes live to our audience. And yeah, that's pretty much it. We want to make sure you're happy with the recording itself.
Eric Conn: Excellent.
Feed & Grain: Um, so the way it's going to work, I'll record my intro later. Once I kind of know exactly what we talk about, but to start, I'm just gonna say, you know, thank you for joining me in the podcast. Hi, you guys say hi back. Then we'll go into just kind of like a little, you know, who you are and what you do in the end for the industry. And yeah, then we'll go into the questions. So that sounds good.
Aaron Gelb: Right. Yeah, I had one just as a heads up. So number seven, were you asked about just so the question is is more is is accurate that we just did the webinar this morning.
Feed & Grain: Oh, great.
Aaron Gelb: So instead of asking it, you know, the future tense, you know, just just that way, you know, the answer jives with. But I think people can um I think the recording will be maybe available.
Aaron Gelb: So I'll reference the recording as opposed to people you know being able to sign up.
Feed & Grain: Sounds good. And you have an event you're doing to later in the year.
Aaron Gelb: In January, yes, so I can talk. We don't have a date yet, but but that will be coming soon.
Feed & Grain: Yeah, we'll make sure to bring that up. All right, it sounds good.
Eric Conn: And you go do you go by Stephen or Steve?
Feed & Grain: Steven usually, just because I'm a junior, so my dad is Steve.
Eric Conn: OK.
Feed & Grain: Keeps things easier around the house.
Eric Conn: OK. Very good.
Feed & Grain: ah
Eric Conn: All right.
Feed & Grain: So, hi Eric, hi Aaron. Thanks so much for joining me today.
Eric Conn: Hey, thanks, Stephen. Glad to be here.
Aaron Gelb: yeah Looking forward to the discussion. Thank you.
Feed & Grain: So as we talked about this before we got on the call, I'm a big fan, ah but for anyone who might not know you, Eric, might not know you, Aaron, ah can you tell us a little bit more about yourself and what you do?
Eric Conn: Well, that's great. I love that there's OSHA celebrities now. That's a a good sign for our industry. But my name's Eric Kahn. I'm one of the founding partners at Kahn Massiel Carey, and I chair the firm's National OSHA Workplace Safety Practice Group. I've practiced for 24 years exclusively in the field of workplace safety and health. And for the first decade or so of that, I practiced alongside the first general counsel of the OSH Review Commission. So that's a little on my background here.
Aaron Gelb: And I am based in Chicago. This is Aaron Gelb. I lead the Midwest Ocean practice along with Eric. I'm one of the co -managing partners of the firm. um Starting my 30th year and in practice and being based in Illinois, which has some of the finest soil in the United States. I'd spend a lot of time working with grain handling companies.
Aaron Gelb: primarily in the Peoria area office, but but other area offices as well, both Naperville and Fairview Heights, as well as significant cases across the Midwest, Missouri, Iowa, even some great cases in Michigan, into Kansas, Nebraska, and beyond.
Feed & Grain: Yeah, and I read I know you from your fantastic blog, the OSHA defense blog or the OSHA defense report blog that you put out. And one of your big topics lately has been kind of the OSHA's heat illness prevention rule. What's going on with that? You've been writing a lot about it. I was hoping you could just give me a couple of the key elements for businesses, especially, you know, grain handling, feed manufacturing businesses.
Eric Conn: Sure, yeah. this is It's interesting. We're we're coming down the the the final stretch of the Biden administration and a heat illness prevention rule at OSHA was one of the agency's highest priorities. And they worked really hard on it, actually made a ton of progress on it during the last almost four full years. And we are at what I would call sort of close to the finish line for a rule, but what's going on with it and what's going to be going on with it in ah and a couple of months are two different things.
Feed & Grain: Yeah.
Eric Conn: This has been an incredibly active rulemaking. um It was about ah three and a half years ago or so, they they initiated an advance notice of proposed rulemaking, basically put out a request for information about possible directions that OSHA might go for an indoor and outdoor heat illness prevention standard, ah collected a bunch of information and data from that, put together some committees to work on it, ah organized a small business review process, and got to the point
Eric Conn: a couple of months ago where they put out a notice of proposed rulemaking, which is actual regulatory to text, proposed regulatory text for a heat illness standard. We are right smack in the middle of ah of a public comment period for that rule. Employers have until presently, they have until the week between Christmas and New Year's. to submit comments to OSHA's rulemaking docket. We anticipate that that deadline will be extended a little bit, ah but probably not until past January 20th. So the the public has its opportunity to comment on this proposed rule right now, probably until around the middle of January. ah The rule itself is is ah you know a pretty remarkable rule. ah it is um It is broad.
Eric Conn: In its application, it applies to almost every employer in the country because it covers both indoor and outdoor workplaces and any workplace where there is a potential or foreseeable exposure to heat at 80 degrees heat index, indoors or outdoors. um There are a few exceptions to it, but by and large, it applies to essentially everyone.
Eric Conn: And it's also extraordinary in some of the some of the elements of the rule are particularly onerous. there are three that we there's you know There's a lot of elements to this rule that ah will be challenges for employers and that employers have concerns about, but there's three that we've flagged and that we've been talking with our clients and a coalition of employers and trade groups that we work with about.
Eric Conn: One is measuring and monitoring, in particular in indoor workplaces. And for many in the grain industry, we think of you know agriculture as an outdoor um work activity. But a lot of folks in the grain industry have these hybrid indoor outdoor workplaces, right? A grain elevator, a feed mill, um yeah where there's work that happens indoors and outdoors. And a lot of that indoor work is either in a non -climate controlled environment or in an environment where there is equipment and processes that generate its own heat. And so you do have ah these potential high heat environments indoors that will be regulated by the standard if it's ever finalized. And for the measuring and monitoring piece, in particular for indoor work environments,
Eric Conn: employers are going to have to, if the rule is finalized as it's proposed, do a lot of their own measuring and monitoring. And they can eat and and because the standard is not based on an ambient temperature trigger, you're having to calculate or measure a heat index, which means either getting special technology to measure for heat index or measuring for ambient temperature and humidity separately and calculating heat index, or obtaining a wet bulb globe temperature device, which is not readily available on the market right now, to do this measuring and monitoring, as OSHA says,
Eric Conn: ah in enough locations to be representative and frequently enough that you're keeping up with potential changes in heat index over the course of the day. So for you know a work environment like a grain elevator or a feed mill, you might have several to dozens of locations that you would need to separately measure and monitor for.
Eric Conn: And OSHA's expectation is that you would be doing it multiple times a day. So basically turning employers into weathermen ah to calculate and log all of these heat index measures throughout the day. And that's going to be an administrative challenge and very burdensome if the rule is finalized in that way. The second of the third, ah second of the three big concerns we've flagged is acclimatization. And we are you know not opposed to acclimatizing employees to new ah high heat environments. I mean, the data jumps out at you in OSHA's preamble to the proposed rule. ah The number of serious heat injuries and illnesses, or I guess the percentage of serious heat illnesses and injuries that occur in the very first week on a new job tells you that this is a real thing and that it's something, it's a acclimatization is important.
Eric Conn: but way The way that OSHA has addressed this in its proposed rule is very rigid, ah very administratively challenging, and very onerous. There is basically a requirement to ease employees in working only 20 % of their first day on a new job ah where they may be exposed to heat at the initial heat trigger of that 80 degree heat index for only 20 % of the first day, 40 % of their second day, 60 % of the third day,
Eric Conn: and so on until a full week of easing into the workplace where you're having to track who are my new employees, what day into the job are they, what percentage of the day is at the initial heat trigger, and what percentage of the day have they worked in a location where they're exposed to that initial heat trigger. So really challenging requirements built around acclimatization and then they add to that by saying we need to do a similar re -aclimatization for returning employees. Somebody who's been away for a couple of weeks at a time has to come back and be re -aclimatized in a similar approach. And the final particularly concerning element of this proposed rule is a very rigid requirement around cool down rest breaks and again
Eric Conn: um No responsible employers opposed to cool down rest breaks. But the issue with the way the rule is written right now is that you must do um a 15 -minute break every two hours with no flexibility around that. So you can't say, this task is going to take two and a half hours. So we're going to take a 30 -minute cool down rest break after two and a half hours. You have to do 15 minutes every two hours. And that doesn't count time getting to and from the break area.
Eric Conn: Taking off any PPE um and any of that sort of stuff built in there So if you've got somebody for example in a grain elevator who's up in the head house And they're doing a task that's going to take two hours and 15 minutes This rule would require them to come down before they're finished with that task Take a cool down rest break then get all the way back up to the head house and to finish the task.
Eric Conn: So you're climbing or taking one of these elevators or man lifts multiple times um ah without any flexibility built built in there. And there's a lot of other elements.
Eric Conn: I could obviously talk about this for days.
Feed & Grain: Yeah,
Eric Conn: But that's those are the big challenges we're seeing in that heat rule.
Feed & Grain: yeah well well, number one, sorry to make you come on here and talk about regulation that no one knows exactly what. the Trump administration is going to do with any of it. So ah who knows? But also, I had hoped that there would be some kind of variation for you know where you live because here in Wisconsin, like yeah, 80 degrees is pretty warm for us. it's you know only really hits that during the summer months in the later part of the day, but like you go down to the south, 80 degrees, I mean, 24 hours a day.
Eric Conn: Yeah.
Feed & Grain: It doesn't get below that in the summer.
Eric Conn: Yeah, I mean, that that's Merry Christmas, right?
Feed & Grain: Yeah, exactly. So it seems, I don't know, really weird um to not have any kind of variation in that.
Eric Conn: Yeah, you know, I think OSHA was trying hard to, you know, to to not overcomplicate things, but it's a great point.
Feed & Grain: ah
Feed & Grain: Mm.
Eric Conn: And it's a great, ah I think, miss in the way the rule is crafted right now. And we've been trying to come up with a bunch of different solutions for how that might be addressed.
Eric Conn: And one of those is look to you know National Weather Service alerts and warnings and and ah and and those types of messaging coming out of National Weather Service or some other credible um you know weather service like that, because those are geared differently to different climates.
Eric Conn: ah They have different thresholds for when they will
Feed & Grain: Mm hmm.
Eric Conn: put out a ah high hazard high heat alert in the gulf of mexico versus north dakota and so we've suggested either using different thresholds or using something like those alert services as being the triggers for some of the more onerous requirements of the standard but right now it is absolutely One size fits all, and it's one size fits all, not just for different regions of the country, but for indoor and outdoor workplaces.
Feed & Grain: Yeah.
Eric Conn: There are only the slightest variations in requirements based on indoor and outdoor work environments versus different industries versus, you know, work activities that might be extremely physically demanding versus just merely being present and sitting at a desk.
Eric Conn: in a ah in a higher heat context. None of that is accounted for and the science behind heat illness accounts for all of that. So I feel like that is a that is a problem with the proposed rule that we're you know trying to work with the agency to recognize and address, but it's one of the challenges with trying to write a one -size -fits -all rule of any kind is rarely does a safety measure, rarely does a hazard apply equally in in every setting, but you know that's the kind of rulemaking that OSHA is often forced you know to to try to tackle, and certainly what they're doing with this proposed rule.
Feed & Grain: yeah
Feed & Grain: Yeah, especially anyone who's 80 degrees inside a feed mill with machines running and the smell and everything. It's a really different experience than being outside with a slight breeze and working out.
Eric Conn: Yeah, for sure, for sure.
Feed & Grain: um So ah besides the heat illness prevention rule, are what other significant regulations or standards is OSHA working on right now or planning to implement in the near future or change in the near future?
Eric Conn: Yeah, those are those are very different questions. What are they working on now and what are they going to implement in the near future are different things I think because of the the outcome of the election in earlier this or earlier this month.
Feed & Grain: yeah
Eric Conn: ah OSHA has been working really hard on this heat illness rule. They've been working really hard. on an emergency response standard to sort of modernize ah yeah requirements around fire firefighting and other emergency response activities, which will have a serious impact in the grain industry as well, um ah either because of the way it affects companies' internal emergency response programs or their reliance on volunteer fire department departments in
Eric Conn: in rural communities or your professional fire departments in other communities. ah There is the standard as proposed is extremely onerous it sounds like a broken record ah but these are two particularly onerous rules that OSHA is proposing ah so much so in this emergency response rule that there is a a a very broad and and almost unanimous coalition of professional firefighting organizations and fire chiefs associations who have spoken up to say look we're we're all for modernizing ah firefighting protections and protecting our our workers in this very hazardous work activity but this standard goes way too far and in fact will cause you know it it will you know goes well beyond the budgets of most
Eric Conn: community fire departments and would be impossible for volunteer fire departments. So that's a rule that is in a similar stage um as the heat illness rule. A dose of proposed rule making was issued. ah the The comment period for that one has expired already and we are in the middle right now of a public hearing on that rulemaking. there's It's probably going to run for about a month. We've had a few days of the hearing already. So that's been going on. Another really big one.
Eric Conn: ah is the worker walk around representative designation process rule.
Feed & Grain: Mm hmm.
Eric Conn: That is a rule that OSHA is no longer working on because it was finalized and issued ah earlier this year. but That is a rule that makes it easier for third parties to get into private employers workplaces as an employee representative during an OSHA inspection.
Eric Conn: And it was a controversial rulemaking. It it it steps on the toes of ah private property owners, private business owners to exclude unwelcome non -governmental third parties.
Eric Conn: And it was controversial because OSHA did not hide its intent with that rule, which was to make it easy for unions to access non -union workplaces.
Eric Conn: That was really the stated intent of this rule.
Feed & Grain: Hmm.
Eric Conn: um And that's, you know, whatever you think about unions, and I'm not anti -union in any way, but whatever you think about unions, using an OSHA rule, a workplace safety agency rule to facilitate union access, feels misplaced, right?
Eric Conn: There's an entire agency, the National Labor Relations Board,
Feed & Grain: Yeah.
Eric Conn: whose job it is to facilitate union organizing, that really should not be the job of OSHA. so So many people are concerned about that rule for that reason. What I'm most concerned about that rule is, even though that's what OSHA has intended, is that this is for unions to get into non -union workplaces, that's not the rule they wrote.
Aaron Gelb: Thank you.
Eric Conn: The rule they wrote opens the door to any variety of unwelcome third parties, plaintiffs' attorneys or their expert witnesses
Feed & Grain: Hmm.
Eric Conn: disgruntled former employees that you've removed from the workplace, um you know media, ah competitors, um ah you know any a variety of different individuals who might be able to now use this rule to wedge their way into your workplace and cause all kinds of problems and challenges for workers. That rule is presently in effect.
Eric Conn: Um, and, uh, it's been, there's been a legal challenge brought to that rule.
Aaron Gelb: Thank you.
Eric Conn: It's in effect now, but that's another rule where, you know, maybe we'll talk in a little bit about what's likely to happen as we transition from a Biden administration to a Trump administration.
Eric Conn: where I think all all of these rules that we're talking about, heat, emergency response, work or walk around, even though it's been finalized, ah their fate is not sealed yet.
Feed & Grain: Yeah.
Eric Conn: And it may be may be on a different course in light of this election.
Feed & Grain: Well, yeah, I mean, and having OSHA visit your facility is already such a stressful experience. And then to have, you know, these third parties walking around too and having to worry about what they're seeing and what they're going to do at the end of this is it's a lot for any business owner to be expected to deal with.
Eric Conn: for sure.
Eric Conn: That's exactly right. that's exactly And and you know you you think about the the likely third parties that would try to try to utilize this role.
Feed & Grain: Mm hmm.
Eric Conn: They're not there to help the employer. They're there to make your life a little bit more difficult.
Feed & Grain: eat
Eric Conn: so
Feed & Grain: are even like, you know, you think activist groups who are going to come in and look at a working feed mill and be like, oh, this is all gross and look at all these things going on.
Eric Conn: sure
Feed & Grain: This is nasty. And then this is why you shouldn't eat animals and all those things. It's just a ah real slippery slope.
Eric Conn: Yep, environmental groups, political groups, there's all all kinds of different scenarios that we could imagine utilizing this this new regulation.
Feed & Grain: it And speaking of, ah you know, having that OSHA visit, it it like I said, it's got to be so stressful for, especially in our industry where a lot of facilities are like still, there's big companies, but a lot of still local, their co -ops or their individual you know, feedmills or grain elevators. It's a lot to deal with ah having a government agency come in and inspect you. What are some of the common mistakes companies make when they're interacting with OSHA and how can these ah be avoided?
Aaron Gelb: i mean it i'll I'll jump on that one.
Eric Conn: Yeah.
Aaron Gelb: um I would say, and there are a lot, I've seen, Eric and I and our colleagues have have seen all manner of of mistakes and missteps.
Eric Conn: yeah
Aaron Gelb: I think first and foremost, I would say but probably two things. One is is failing to prepare for the inspection, you know, the old adage fail, you know,
Aaron Gelb: failing to plan as planning to fail. And I think that that truly applies here um you know from any number of steps that you can and should take, including figuring out you know who's going to be part of the inspection team, um making sure those people understand their roles and what they are to do and not to do, um that they understand the the rights and the responsibilities that that they have, that the company has, but that also you what are What are OSHA's rights? What are the rights of your employees? I think far too often, our clients, the ones that come to us you know after the inspection is underway or even after the citations have been issued or contested, um is that is they just they didn't understand
Aaron Gelb: you how to get ready, ah where to take the compliance officer, where to hold the opening conference. ah Didn't understand what their rights were as far as as limiting the scope of the inspection. um Didn't understand about taking photographs, asking questions, taking notes, how to produce documents. There are a lot of things that if you know what your rights are upfront,
Aaron Gelb: and you're comfortable and confident in exercising them, inspection can go a lot better. um Second, I would say, is going it alone.
Aaron Gelb: you know It's one thing if if they're coming out to, ah you know is someone tripped in the parking lot and and suffered a fracture and for whatever reason they come out to inspect that or you know maybe it's a ah ah
Feed & Grain: Mm.
Aaron Gelb: forklift inspection at ah at a warehousing facility. and And that's all they're there to look at. And they take a few pictures of the forklift and they leave. But that's pretty rare.
Feed & Grain: Mm.
Aaron Gelb: go When you go it alone, and particularly if you're not prepared and you don't understand your rights, ah that that can lead to a whole a whole host of of negative outcomes, right?
Aaron Gelb: you You allow them to go where they're not entitled to go. You allow them to talk to people that Particularly, I would say one of the biggest mistakes is allowing managers, superintendents, particularly senior leadership to be interviewed by OSHA without being prepared, without somebody sitting in on that interview. I've seen cases that should have probably been $16 ,000, $30 ,000 citations turn out to be $300 ,000 citation packages because
Aaron Gelb: you words are are twisted, misinterpreted, put put in somebody's mouth and work their way into a statement that then is signed, which should never have been signed in the first place. And then that is used to establish knowledge and in some cases used to establish the basis for a willful citation. um So particularly, again, you know we we have clients that do different do it differently, some that have us involved you know via telephone for the opening conference and and help them understand what that what happens when the walk around begins. But we're remote. There are others that will, particularly when there are serious incidents. We may be there before OSHA, right? So we're ready to to to participate live and in person the whole time. There are others that call us you know while OSHA is waiting in a conference room. And you know we we get our go bag and and we hit the road to get there. Relatedly, I think a lot of people don't understand that you can ask OSHA to wait. you know They'll wait for at least an hour to an hour and a half.
Aaron Gelb: in In some extenuating circumstances, you can ask them to come back or at least figure out a way to to you know limit what they do before your your consultant, your expert, or your your attorney shows up. But it's it's going it alone and and and not understanding what your rights are that lead to a lot of negative outcomes.
Feed & Grain: Yeah, I would imagine as as someone who's like sat in a lot of ocean prep conference talks and things like that at trade shows, you get this kind of false sense of like, I can handle this, right? I'll have my plan written down and it'll walk through and it'll be fine. But in reality, it's a lot to there's a lot of money to put on the line thinking that you have done enough research and you know what you're talking about.
Aaron Gelb: Yeah, and and in I think on a related point, like we we work on a lot of significant incident cases, right fatalities, engulfments, entrapments, and particularly in some cases where the employer may have a history, or or in this in this industry, obviously, it's ah it's a particular focus in parts of the country for OSHA.
Feed & Grain: ah
Feed & Grain: Mm hmm.
Aaron Gelb: So they're they're kind of coming in at a heightened you know level of of alert. right you know The threat threat assessment level is orange right just from just from the jump.
Feed & Grain: Yeah.
Aaron Gelb: And so if you don't know how to speak OSHA and and and listen and and understand what's being said to you, I've had You know, too many clients that come to me with really significant inspection pack or citation packages where I i say, oh gosh, if you know, only you had, you you and I had talked six months ago, you know, either when the inspection started or even better, you know, before there's, they even, there was even an incident. So maybe we could have helped you avoid it, but at least, you know, talking to us at the start of the inspection um and, and
Aaron Gelb: There are things that that the compliance officers either questions they're asking or statements that they're making That some some less sophisticated employers and that's not not I'm not saying they're unsophisticated people right just not sophisticated or experienced dealing with OSHA where You know, we know that they're asking this question because they're really concerned about you know The lack of you know, you fill in the blank your your been entry program your housekeeping program ah whatever it is and you don't If you fix that in during the inspection, you're not you're not admitting wrongdoing, you're not admitting to a violation, you're showing them that you're serious but and committed to safety. So we've had but a number of really tragic cases where working with our clients, you know they
Aaron Gelb: hopped on immediately into fixing these things. and And in some cases, you know, we'll even share some of the the things that we're doing in the middle of the inspection. So OSHA can can relax and recognize, okay, this employer gets it because I've seen employers that go it alone. They don't have our help. No one's interpreting things for them. And it's like,
Aaron Gelb: We don't understand why yeah know we thought we were going to get a few serious citations and we got five willful violations and a $500 ,000 fine. and it's and Then you look at the inspection file and you see the compliance officer kept asking for ah respiratory but fit testing records and training records and medical evaluations and Hazcom training. and and comments are made and and misinterpreted. And then suddenly somewhere along the lines in that area office, they say, well, this company doesn't get it. We need to you know send a message. So here's here's a bunch of willful citations.
Feed & Grain: Yeah. Well, there's an art in the way to talk to them. Right. And ah I love our industry. I do. There's some of the nicest people in the world. But we tend to be straightforward and honest. And that's not the best way to go when you're talking to one of these inspectors. um So I think I know you're going to know your answer to this. But um When do you think it is the best time to bring on some kind of legal representation when dealing with an OSHA inspection or OSHA citations or with just the organization overall?
Aaron Gelb: Uh, so, so addressing the last point, you always have to be honest, right? And I'm not, so I know you weren't, I got a few of those cases and those don't go well.
Feed & Grain: Oh yeah, don't lie to OSHA. That's clear. No no one's given that advice.
Aaron Gelb: And when I find out that they think that that somebody was was dishonest before I got involved, um, you know I think, again, a lot of it is going to depend on on what brings them there. right or So so yeah if there's an engulfment, someone loses their life, or multiple employees fall into a bin, or a traumatic leg amputation. A lot of our clients are calling us before, like I said, before OSHA shows up, so we can even help them manage and direct that investigation.
Aaron Gelb: Uh, you know, some of that will then be be covered by the attorney client privilege. Um it but but certainly My recommendation is to always call council ah you while while you're waiting to begin the opening conference, because I think Eric and I both believe that that opening conference is absolutely essential too, because that's where you're going to talk about the scope of the inspection. That's where you're going to talk about how interviews are going to be handled, documents are going to be produced. And a lot of times, I think when compliance officers are talking to people,
Aaron Gelb: Again, and that really don't understand their rights and how to exercise them, um you know a way to cooperate with without giving away the farm, so to speak. um that that we can be, even if we're you know even if it's a client of mine in Kansas and I'm in Chicago, I can join that opening conference and and be effective remotely by phone. And and you know maybe we delay the interviews until I can fly out there or one of our people can be there. um But so I think i think the the time is is either right after the incident or certainly before you begin. begin the inspection before you say anything to OSHA in that opening conference that Canon will be used against you. um Certainly before you sit down for an interview and
Aaron Gelb: I would say before you sign a statement, but my advice is to always not to sign a statement period, but so just so people understand, Hey, I'm not going to sign this. I'm not going to review this. You know, i'llll I'll, I'll, I'll, I'll, I'll sit down for this interview, you know, but only after I've been propped or, you know, met with my attorney. Um, and, and for management interviews, right? We're sitting in on those interviews to make sure that everything goes, uh, I would say in a, in a fair, uh, direction.
Feed & Grain: Yeah.
Eric Conn: You know, in addition to the those sort of those incident inspections, this is Eric now, I would say that there are circumstances where either because of your history, your company's history with OSHA, or because of the purpose of the inspection, that even in the absence of ah of ah of an incident, the stakes may be high enough that it makes sense to get counsel involved. And I say that because one of the trends we've been tracking for the last decade or so has been a pretty steady increase in the percentage of citations OSHA issues that are characterized as repeat violations. And repeat violations carry penalties that are 10 times higher than a serious or other than serious violation. And so if OSHA is out there to do an inspection, say under one of the grain emphasis programs,
Eric Conn: And you've got a few citations on your record involving bin entry or work with an energized sweep auger or, you know, housekeeping um violations in the green elevator. Those are prime topics, prime targets for a repeat violation in one of these programmed inspections.
Eric Conn: And if it's you know something that's in the sort of your core business area and the and the stakes are high, it makes sense to at least contact counsel. It may not be that we're going to be you know on a plane out to the facility. It may not be that we're on a call identified.
Eric Conn: as being, you know, present and representing you during the inspection. But we can advise in the background to avoid stepping in it and to avoid setting yourself up for these costly repeat violations or getting dumped into the dreaded severe violator enforcement program or being victim to OSHA's new newest tool, the instance by instance citations.
Feed & Grain: Yeah.
Eric Conn: So if you're, you know, you've got something on your record, or they're inspecting you on something that is core to your business, lockout, tag out at a you know in your machine shop, um it probably makes sense to to contact us. And one of the reasons why you know Aaron and I are both at Kanmasi Alkeri instead of the giant 3 ,000 lawyer law firms that we left years ago is that we wanted to be at a place where you didn't have to be worried so much to pick up the phone and call your lawyer because the rates are way too high. you know we've We've started our own boutique OSHA practice um so that we would be ah you know we could right size our rates to take those calls even in the absence of some terribly tragic event.
Eric Conn: ah you know, get get us early before the small thing becomes a big thing.
Feed & Grain: Yeah, it seems like it's always at least worth having some kind of counsel on on on call on file ready to call ah if you haven't if they haven't already figured something like that out because ah it can happen quick. um And speaking of your work at ah CMC,
Feed & Grain: You guys produce ah one of the best OSHA blogs I read. I've already gushed over it. ah You also have online training courses, some other information right there on the site. ah Could you highlight some of the most relevant courses for grain handling feed manufacturing professionals? ah What should people be, you know, educating themselves on?
Eric Conn: I'll tell you one one thing that we've been doing a lot um really in the wake of that worker walk around rule, but also just as the Biden administration has been ah you know an aggressive enforcement heavy um administration at OSHA with lots of um you know national and local and regional emphasis programs getting sort of inspection numbers back to pre pandemic levels has been our OSHA inspection masterclass.
Eric Conn: And that is a ah program that we put together to help you know that your team, employer's team, boots on the ground folks that would have any role in an OSHA inspection from the folks that might greet OSHA at the front door to the you know safety manager who would escort OSHA during the walk -around inspection to folks that might be involved in producing or organizing documents to produce the OSHA or participating in OSHA interviews or organizing OSHA interviews um to really learn tips and strategies for every phase of the OSHA inspection ah and to to get access to a bunch of tools that we've developed to help and help employers successfully manage OSHA inspections. So that's a good one for the grain industry, really a good one for any employer.
Eric Conn: And another is our record keeping master class to help employers master OSHA injury and illness record keeping and reporting when you have to you know put injuries or illnesses on your 300 log, a create your 300A annual summary, ah pick up the phone to call OSHA after certain types of incidents.
Eric Conn: Those are low -hanging fruit, easy mistakes that employers make, extremely high -frequency citations, ah and you can get it wrong both ways, right?
Eric Conn: I mean, everybody thinks about, well, did I get it wrong and leave something off my log that shouldn't have been there?
Feed & Grain: Mm hmm.
Eric Conn: Well, in the these days, it may be just as problematic to put something on your log that didn't need to be there because that data is now being handed over to OSHA proactively under the electronic record keeping rule, and OSHA's using that data, whether from e -record keeping, the BLS annual injury survey, or just collecting that data during inspections, to develop emphasis programs, to target individual employers, and and to use that data against you in a lot of different ways. So getting record keeping right has never been more important, and so we've got those two programs we've put together that
Eric Conn: ah We're getting rave rave reviews about them and we really enjoy spending that kind of time with employers, you know educating and and really just talking through even scenarios that they've experienced during OSHA inspections or challenging record keeping.
Eric Conn: So those are two programs that I'm very fond of, that I'm involved in both of those trainings personally and and would would encourage any employer, especially employers in the grain industry, to to reach out and and get signed up for those.
Feed & Grain: Yeah, I definitely do. um Especially since I'm guessing like stuff like record keeping is, I mean, it's a lot to do, especially when you're running a business full time.
Feed & Grain: So easy thing to mess up. Aaron, you led a webinar today today as we record, ah but should be available by the time that this goes out, hopefully for the Missouri Agribusiness Association.
Aaron Gelb: Yeah.
Feed & Grain: You also have an event coming up in January, all things that you know are our listeners might want to go to to learn a little bit more about OSHA and OSHA regulations and OSHA compliance.
Aaron Gelb: Sure. It's been a busy year speaking about
Feed & Grain: um Can you give us a little more information about those? so
Aaron Gelb: sure yeah it's been ah it's been a busy year speaking about ah to the grain industry. I think it started in February at the Grain and Feed Association of Illinois' annual meeting. Did a presentation focused on bid entry. today's Today's webinar, as you mentioned with Missouri Agribusiness, was focused on a new regional emphasis program out of the Kansas City region, which goes online in Missouri uh it's gone into effect enforcement will not be there's a 90 day outreach period so enforcement begins january 1st in missouri um there previously had been local emphasis programs in kansas and nebraska but missouri for whatever reason did not have have any any grain focused emphasis program illinois does uh as well so they were kind of sandwiched in there and and and uh kind of skating by so to speak so osha rescinded the
Aaron Gelb: Kansas and Nebraska LEPs and have replaced it now with a Kansas City regional emphasis program that focuses on ah that includes Missouri and those other two states. and And what that means essentially is that that employers now in those three states, along with all the other states that are already subject to the green handling emphasis programs.
Aaron Gelb: that employers in those industries can and will be inspected randomly. ah so So based off a list that's randomly generated at each area office based on an organization's NAICS code, so your industry classification gets you on this list for random inspections. And we always like to point out that that means you could have a year without an injury on your log, without anything reported to OSHA, without any complaints, but your number literally is comes up on this random list. And then they come out to do an inspection, the scope of which is determined by the emphasis program directive. And in this case,
Aaron Gelb: ah that That includes housekeeping, preventive maintenance, and bin entry programs, along with a number of others other issues, whether it's falls, electrical safety, confined spaces, that they're going to be looking for, machine guarding, when they're when they're doing the walk around portion of the inspection.
Feed & Grain: Mm hmm.
Aaron Gelb: um And in addition, they if they come out for um another reason, because this emphasis program applies to to folks ah in the industry, they can expand into these areas from that inspection opened.
Aaron Gelb: for another reason and it's important to understand that OSHA creates emphasis programs based off of data and experience so they believe that there are unique and persistent hazards in this industry hence they create this program to get into these workplaces proactively to try to find and address these things so i think consistent with you know what eric's talking about about preparing is ideally, we we love to work with companies in this space and a number of other spaces, but because we know the issues and because we we have a network of consultants who are, you know we we have vetted and tested and approved ah based on our experiences with them who are green safety experts, um you know we often are engaged to come in, do assessments of operations before anything happened.
Aaron Gelb: i improve the programs, improve the training, help help roll out an auditing program. So that way, if OSHA does show up, you know the the likelihood of an outcome is far better. And and I think kind of as an addendum of what I was saying before, another mistake that folks often make is is hiring counsel who is not experienced OSHA counsel. It'd be like going to your general practitioner doctor for a you know a specialty, you know, if you have ah a kidney issue or a cardiac issue or liver, you know, and you just go to your general doctor like, yeah, they know, they know medicine, you know, lawyer, other lawyers know the law, but, you know, if they haven't handled
Aaron Gelb: an engulfment. if they If they are not a known commodity at the area office where the area office knows, trusts them to be straight shooters, um they don't they're not used to being on site. It's going to go a lot differently than dealing with with counsel that knows what they're doing. And so I think that's kind of, it's it's failing to retain counsel, but it's also failing to retain the right counsel at the right time.
Feed & Grain: Yeah, you wouldn't go to you with your for your divorce reason or lawyer purposes, would you?
Aaron Gelb: No, yeah I would definitely not want to work on that either.
Feed & Grain: Well, thank you guys for joining me today. If people want to know more information or reach out to you, ah how can they do that?
Eric Conn: ah Well, we're easy to find. Check out konmasiel .com is our website. Check out the OSHA practice page there. You can find Aaron and me. All of our contact is available there. Or you could, you know, shoot me an e email directly econ at konmasiel .com. um But like I said, I'm easy to find and I'm i'm OSHA guy on Twitter.
Eric Conn: I'm all over the place. So like you said, that OSHA celebrity status now. You can find us that way.
Feed & Grain: Awesome. And, uh, everything that we mentioned, including hopefully that, uh, webinar Aaron had recorded earlier today will be linked in the show description. So you'll be able to find it right down there. Well, thank you guys. I really appreciate you coming on and talking, especially about regulations that, you know, might completely change in a few months here. We'll have to have you on again, once, uh, Trump takes office and we can have a little bit of a better understanding about exactly what might be coming down the pipe with his administration.
Aaron Gelb: Sounds good.
Eric Conn: Wonderful. Thanks, Stephen.
Feed & Grain: Thank you and thank everyone out there for listening. Till next time. Bye.
Feed & Grain: And that's it.
