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Expert OSHA insights on heat prevention, inspections and new regulations [Podcast]

Discover critical OSHA updates and compliance strategies for grain handling and feed manufacturing professionals.

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Transcript

In this episode of the Feed & Grain Podcast, host Steven Kilger interviews OSHA experts Eric J. Conn and Aaron Gelb from Conn Maciel Carey. The discussion covers crucial topics for grain handling and feed manufacturing professionals, including the proposed heat illness prevention rule, best practices for OSHA inspections, and new regional emphasis programs. Listeners will gain valuable insights on navigating complex OSHA regulations, avoiding common compliance pitfalls, and preparing for potential inspections. This episode provides essential knowledge for industry professionals looking to enhance workplace safety and maintain regulatory compliance in an ever-evolving regulatory landscape.

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Transcript

Steven Kilger - 00:00

Hello, my name is Steven Kilger. I'm the managing editor for Feed & Grain magazine and the host of the Feed & Grain podcast. Thank you so much for joining me today as we dive deep into the issues affecting the feed manufacturing, grain handling and allied industries.

Today’s episode is brought to you by The BinWhip from Pneumat Systems. The powerful Dual Impact BinWhip removes the toughest buildup and blockages in industrial storage silos – without hazardous silo entry. Learn more today at binwhip.com.

Today I have two guests from the firm Conn Maciel Carey, Eric J. Conn, founding partner and chair of the firm's National OSHA and Workplace Safety Practice Group, and Erin Glib, co-managing partner, OSHA. We talk about the heat illness prevention rule, OSHA inspection best practices, OSHA compliance resources, and the new regional emphasis program.

 I hope you enjoy the interview. If you want to help out with the podcast and are listening to this in a podcasting app, please rate us and subscribe. If you're listening online, sign up for the Feed & Grain newsletter Industry Watch to see when new podcasts drop. And of course, stay up to date with all the news from around the industry. And if you're attending IPPE or the GEAPS Exchange this year, please stop by our booth or heck, even stop me in the hall.   

Kilger - 01:13

I'd love to talk to listeners about what they want to hear in the podcast coming up in 2025. Now, on to the show. Hi Eric, hi Aaron, thanks so much for joining me today.  

Aaron Gelb - 01:25

Thanks Steven, glad to be here. Looking forward to the discussion, thank you.  

 Kilger - 01:30

 So, as we talked about this before we got on the call, I'm a big fan, but for anyone who might not know you, Eric, might not know you, Aaron, can you tell us a little bit more about yourself and what you do?  

Eric Conn - 01:43

Well, that's great. I love that there's OSHA celebrities now. That's a good sign for our industry. My name is Eric Conn. I'm one of the founding partners at Conn Maciel 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.  

Gelb - 02:12

And I am based in Chicago. This is Aaron Gelb. I lead the Midwest OSHA practice along with Eric. I'm one of the co-managing partners of the firm. Starting my 30th year in practice and being based in Illinois, which has some of the finest soil in the United States. I spend a lot of time working with grain handling companies. Primarily in the Peoria area office, but other area offices as well, both Naperville and Fairview Heights, as well as significant cases across the Midwest, Missouri, Iowa, even some grain cases in Michigan, into Kansas, Nebraska, and beyond.   

Kilger - 02:57

Yeah, and I know you from your fantastic blog, the OSHA Defense Blog, or the OSHA Defense Report Blog, One of your big topics lately has been the Osha heat 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 grain handling, feed manufacturing businesses.  

Conn - 03:27

Sure, yeah, it's interesting. We're coming down 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 A list of keywords relevant to topics that may occur during the meeting. Three and a half years ago or so, they initiated an advanced 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, collected a bunch of information and data from that, put together some committees to work on it, organized a small business review process and got to the point A couple of months ago, where they put out a notice of proposed rulemaking, which is actual regulatory text, proposed regulatory text for a heat illness standard. We are right smack in the middle 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 deadline will be extended a little bit, but probably not until past January 20th. So the public has its opportunity to comment on this proposed rule right now, probably until around the middle of January. The rule itself is a pretty remarkable rule. It is broad. 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. There are a few exceptions to it, but by and large, it applies to essentially everyone.  

And it's also extraordinary in some of the elements of the rule A list of keywords relevant to topics that may occur during the meeting. One is measuring and monitoring, in particular in indoor workplaces, and for many in the grain industry we think of agriculture as an outdoor work activity, but a lot of folks in the grain industry have these hybrid indoor outdoor workplaces, right? A grain elevator, a feed mill, 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 an environment where there is equipment and processes that generate its own heat and so you do have these potential high heat environments indoors that will be regulated by this standard if it's ever finalized. And for the measuring and monitoring piece, in particular for indoor work environments, 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 because this 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 in 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, 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. And OSHA's expectation is that you would be doing it multiple times a day. So basically turning employers into weathermen 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 three big concerns we've flagged is acclimatization. We are not opposed to acclimatizing employees to new high heat environments.  

I mean, the data jumps out at you in OSHA's preamble to the proposed rule. 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, it tells you that this is a real thing and that acclimatization is important. The way that OSHA has addressed this in its proposed rule is very rigid, very administratively challenging and very onerous. There is basically a requirement to ease employees in working only 20% of the meeting. 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-acclimatization for returning employees, somebody who's been away For a couple of weeks at a time has to come back and be re-acclimatized in a similar approach. And the final particularly concerning element of this proposed rule is a very rigid requirement around cooldown rest breaks. And again, no responsible employers opposed to cooldown rest breaks. But the issue with the way the rule is written right now is that you must do 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, taking off any PPE, 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 to finish the task. So you're climbing or taking one of these elevators or man lifts multiple times Without any flexibility built in there. And there's a lot of other elements. I could obviously talk about this. But those are the big challenges we're seeing in that heat rule.   

Kilger - 11:16

Yeah. 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 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 doesn't get below that in the summer.  

Conn - 11:58

That's Merry Christmas, right?

 Multiple speakers - 11:59 Yeah, exactly.   

Kilger - 12:00 So it seems, I don't know, really weird To not have any kind of variation in that.  

Conn - 12:08 Yeah, you know, I think OSHA was trying hard to, you know, to not overcomplicate things, but it's a great point and it's a great, 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. And one of those is look to, you know, National Weather Service Alerts and warnings and those types of messaging coming out of National Weather Service or some other credible weather service like that, because those are geared differently to different climates. They have different thresholds for when they will put out a 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. There are only the slightest variations.  

in requirements based on indoor and outdoor work environments versus different industries versus work activities that might be extremely physically demanding versus just merely being present and sitting at a desk 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 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 every setting. But that's the kind of rulemaking that OSHA is often forced to try to tackle. And certainly what they're doing with this proposed rule.   

Kilger - 14:18 Yeah, well especially anyone who's, you know, 80 degrees inside a feed mill with machines running and the smell and everything. It's a really different experience than, you know, being outside with a slight breeze and working that way.  

Conn - 14:31 Yeah, for sure, for sure.   

Kilger - 14:35 So, besides the heat illness prevention rule, 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?  

Conn - 14:47 Yeah, 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 outcome of the election in earlier this month, 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 requirements around firefighting and other emergency response activities, which will have a serious impact in the grain industry as well, either because of the way it affects Companies internal emergency response programs or their reliance on volunteer fire departments in rural communities or professional fire departments in other communities. The standard as proposed is extremely onerous. It sounds like a broken record, but these are two particularly onerous rules that OSHA is proposing. So much so in this emergency response role that there is a very Broad and almost unanimous coalition of professional firefighting organization, fire chiefs associations who have spoken up to say, look, we're all for modernizing firefighting protections and protecting our workers in this very hazardous work activity.

 But this standard goes way too far. And in fact, will cause, you know, it will goes well beyond the budgets of most Community fire departments and would be impossible for volunteer fire departments. So that's a rule that is in a similar stage as the heat illness rule. A notice of proposed rule making was issued. The comment period for that one has expired already and we are in the middle right now of a public hearing on that rule making. 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 is the worker walk around representative designation process rule. That is a rule that OSHA is no longer working on because it was finalized and issued earlier this year. 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. It was a controversial rulemaking. It steps on the toes of private property owners, private business owners to exclude unwelcome non-governmental third parties. 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. That was really the stated intent of this rule.  

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? There's an entire agency, the National Labor Relations Board, whose job it is to facilitate union organizing. That really should not be the job of OSHA, 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 is intended, is that this is for unions to get into non-union workplaces, that's not the rule they wrote. The rule they wrote Opens the door to any variety of unwelcome third parties, plaintiff's attorneys or their expert witnesses, disgruntled former employees that you've removed from the workplace, media competitors, 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 and there's been a legal challenge brought to that rule.

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, right? All of these rules that we're talking about, heat, emergency response, worker walk around, even though it's been finalized, their fate is not sealed yet. And it may be on a different course in light of this election.   

Kilger - 19:32

 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.

 Conn - 19:52

That's exactly right. And you know, you think about the likely third parties that would try to utilize this role, right? They're not there to help the employer. They're there to make your life a little bit more difficult.   

Kilger - 20:05

 Or 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. This is nasty. And then this is why you shouldn't eat animals and all those things. It's just a real slippery slope.  

Conn - 20:20

Yep, environmental groups, political groups, there's all kinds of different scenarios that we could imagine utilizing this new regulation.   

Kilger - 20:31 And speaking of having that OSHA visit, 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, feed mills or grain elevators. It's a lot to deal with 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 be avoided?  

Gelb - 21:08

 I'll jump on that one. I would say, and there are a lot, Eric and I and our colleagues have seen all manner of mistakes and missteps. I think first and foremost, I would say probably two things. One is failing to prepare for the inspection, you know, the old adage, you know, Failing to plan is planning to fail. And I think that truly applies here, 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, making sure those people understand their roles and what they are to do and not to do, that they understand the rights and the responsibilities that they have, that the company has, but that also 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 after the inspection is underway or even after the citations have been issued or contested, they didn't understand How to get ready, where to take the compliance officer, where to hold the opening conference. Didn't understand what their rights were as far as limiting the scope of the inspection. 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, And you're comfortable and confident in exercising them, inspection can go a lot better. Second, I would say is going it alone. You know, it's one thing if they're coming out to, you know, someone tripped in the parking lot and suffered a fracture and for whatever reason they come out to inspect that, or, you know, maybe it's a Forklift inspection at a warehousing facility 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. When you go it alone, and particularly if you're not prepared and you don't understand your rights, that can lead to a whole host of negative outcomes, right? 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, 30, $30,000 citations turn out to be $300,000 citation packages because words are Twisted, misinterpreted, put in somebody's mouth and work their way into a statement that 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.  

So particularly again, we have clients that do it differently, some that have us involved via telephone for the opening conference and Help them understand 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 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 get our go bag 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. They'll wait for at least an hour to an hour and a half. In some extenuating circumstances, you can ask them to come back or at least figure out a way to limit what they do before your consultant, your expert or your attorney shows up.  

 But it's going it alone and not understanding what your rights are that lead to a lot of negative outcomes.  

 Kilger - 25:21

Yeah, I would imagine 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. It's a lot of money to put on the line. Thinking that you have done enough research  Gelb - 25:59 Engulfments, entrapments, and particularly in some cases where the employer may have a history or in this industry obviously it's a particular focus in parts of the country for OSHA. So they're kind of coming in at a heightened level of alert. The threat assessment level is orange just from the jump. If you don't know how to speak OSHA and listen and understand what's being said to you, I've had too many clients that come to me with really significant inspection pack or citation packages where I say, oh gosh, if only you had You and I had talked six months ago, either when the inspection started or even better, before there was even an incident, so maybe we could have helped you avoid it, but at least talking to us at the start of the inspection and There are things that the compliance officers either questions they're asking or statements that they're making that some less sophisticated employers and that's not I'm not saying they're unsophisticated people right just not sophisticated or experienced dealing with OSHA where We know that they're asking this question because they're really concerned about the lack of you fill in the blank, your bin entry program, your housekeeping program, whatever it is.  Gelb - 27:22 And if you fix that during the inspection, you're not admitting wrongdoing, you're not admitting to a violation, you're showing them that you're serious and committed to safety. So we've had a number of really tragic cases where working with our clients, We will share some of the things that we are doing in the middle of the inspection so Osha can relax and recognize that this employer gets it because I have seen employers that go it alone. They don't have our help. No one's interpreting things for them. And it's like, we don't understand why 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 respiratory testing records and training records and medical evaluations and has come training and Comments are made 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 a bunch of willful citations.   

Kilger - 28:34 Yeah, well, there's an art in the way to talk to them, right? And I love our industry, I do. They're some of the nicest people in the world, but we tend to be straightforward and honest. And that's not always the best way to go when you're talking to one of these inspectors. So I think I know you're going to know your answer to this, but 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?  

Gelb - 29:08 So, so addressing the last point, you always have to be honest, right? And I'm not saying, I know you don't lie to OSHA.  

 Kilger - 29:15 No one's given that advice.  

Gelb - 29:16 I've had a few of those cases and those don't go well. And when I find out that they think that somebody was dishonest before I got involved. You know, I think again, a lot of it is going to depend on, on what brings them there. Right. Or so, so. 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

Some of that will then be covered by the attorney-client privilege. But certainly, My recommendation is to always call counsel while you're waiting to begin the opening conference because I think Eric and I both believe 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, Again, they really don't understand their rights and how to exercise them. A way to cooperate without giving away the farm, so to speak. 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 be effective remotely by phone. 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 can and will be used against you.

Certainly before you sit down for an interview and I would say before you sign a statement, but my advice is to always not to sign a statement period. So just so people understand, Hey, I'm not going to sign this. I'm not going to review this. You know, I'll, I'll interview you. I'll, I'll sit down for this interview, you know, but only after I've been prepped or, you know, met with my attorney. And for management interviews, right, we're sitting in on those interviews to make sure that everything goes, I would say, in a fair direction.  

In addition to 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 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 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 and you've got a few citations on your record involving bin entry or work with an energized sweep auger or you know housekeeping violations in the grain elevator those are prime topics prime targets for a repeat violation in one of these programmed inspections and if it's something that's in your core business area and the stakes are high, it makes sense to at least contact council. It may not be that we're going to be on a plane out to the facility. It may not be that we're on a call identified.  

As being 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 newest tool, the instance by instance citations. So if you've got something on your record, One of the reasons why Aaron and I Are both at Khan Masi al-Kheri instead of the giant 3000 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 started our own boutique OSHA practice so that we would be, you know, we could right size our rates to take those calls even in the absence of some terribly tragic event. Get us early before the small thing becomes a big thing.   

Kilger - 34:19

Yeah, it seems like it's always at least worth having some kind of counsel on file, ready to call if they haven't already figured something like that out, because it can happen quick. And speaking of your work at CMC, You guys produce one of the best OSHA blogs I read. I've already gushed over it. You also have online training courses, some other information right there on the site. Could you highlight some of the most relevant courses for grain handling, feed manufacturing professionals? What should people be educating themselves on?  

Conn - 35:04

Well, I'll tell you one thing that we've been doing a lot really in the wake of that worker walk around rule, but also just as the Biden administration has been, you know, an aggressive enforcement heavy administration at OSHA with lots of, 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. And that is a program that we put together to help 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 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. are participating in OSHA interviews or organizing OSHA interviews to really learn tips and strategies for every phase of the OSHA inspection and to get access to a bunch of tools that we've developed to help employers successfully manage OSHA inspection. So that's a good one for the grain industry, really a good one for any employer. And another is our record keeping master class to help employers master OSHA injury and illness record keeping and reporting.

When you have to put injuries or illnesses on your 300 log, create your 300a annual summary, pick up the phone to call OSHA after certain types of incidents, Those are low hanging fruit, easy mistakes that employers make, extremely high frequency citations. And you can get it wrong both ways, right? I mean, everybody thinks about, well, did I get it wrong and leave something off my log that shouldn't have been there? Well, in 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 is using that data, whether for me record keeping the BLS annual injury survey or just collecting that data during inspections to develop emphasis programs to target individual employers 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 put together that We're getting rave reviews about them and we really enjoy spending that kind of time with employers educating and really just talking through even scenarios that they've experienced during OSHA inspections or challenging record keeping.  

Those are two programs that I'm very fond of, that I'm involved in both of those trainings personally and would encourage any employer, especially employers in the grain industry, to reach out and get signed up for those.  

 Kilger - 38:14

Yeah, I definitely do. Especially since I'm guessing stuff like record keeping is, I mean, it's a lot to do, especially when you're running a business full time, so easy thing to mess up. Aaron, you lead a webinar today. Today as we record but should be available by the time that this goes out hopefully for the Missouri Agribusiness Association. You also have an event coming up in January. All things that our listeners might want to go to learn a little bit more about OSHA and OSHA regulations and OSHA compliance. Can you give us a little more information about those?  

Gelb - 38:54

Sure. It's been a busy year speaking about To the grain industry, I think it started. February at the Grain and Feed Association of Illinois' annual meeting, did a presentation focused on bid entry. 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. It's gone into effect, enforcement will not, there's a 90-day outreach period, so enforcement begins January 1st in Missouri. There previously had been local emphasis programs in Kansas and Nebraska, but Missouri, for whatever reason, did not have any grain-focused emphasis program. Illinois does as well, so they were kind of sandwiched in there and kind of skating by, so to speak, so Osha rescinded the Kansas and Nebraska LEPs and have replaced it now with a Kansas City regional emphasis program that focuses on, that includes Missouri and those other two states.  

And what that means essentially is that employers now in those three states, along with all the other states that are already subject to grain handling emphasis programs, That employers in those industries can and will be inspected randomly 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 means you could have A year without an injury on your log, without anything reported to OSHA, without any complaints, but your number literally 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, That includes housekeeping, preventive maintenance and bid entry programs, along with a number of other issues, whether it's falls, electrical safety, confined spaces that they're going to be looking for, machine guarding when they're doing the walk around portion of the inspection.  

And in addition, if they come out for another reason, because this emphasis program applies to folks in the industry, they can expand into these areas from that inspection opened 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 what Eric's talking about, about preparing, is ideally We love to work with companies in this space and a number of other spaces, but because we know the issues and because we have a network of consultants who are, you know, we have vetted and tested and approved based on our experiences with them who are grain safety experts, you know, we often are engaged to come in, do assessments of operations before anything happens. Improve the programs, improve the training, help roll out an auditing program. So that way, if OSHA does show up, the likelihood of an outcome is far better. And I think kind of as an addendum to what I was saying before, another mistake that folks often make is hiring counsel who has not experienced OSH counsel.  

It would be like going to your general practitioner doctor for If you have a kidney issue or a cardiac issue and you just go to your general doctor, they know medicine, other lawyers know the law, but if they haven't handled 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, they don't, they're not used to being on site, it's going to go a lot differently than dealing with counsel that knows what they're doing. And so I think that's kind of, it's failing to retain counsel, but it's also failing to retain the right counsel at the right time.   

Kilger - 43:20

Yeah, you wouldn't go to you for your divorce reason or lawyer purposes, would you?  

Gelb - 43:25

 Definitely not want to work on that either.   

Kilger - 43:30

Well, thank you guys for joining me today. If people want to know more information or reach out to you, how can they do that?  

Conn - 43:37

 Well, we're easy to find. Check out conmasiel.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 shoot me an email directly, econ at conmasiel.com. But like I said, I'm easy to find and I'm oshaguy on Twitter.  

I'm all over the place. So like you said, that OSHA celebrity status now. You can find us that way.   

Kilger - 44:09

 Awesome. And everything that we mentioned, including hopefully the webinar, Erin had A list of keywords relevant to topics that may occur during the meeting. A list of keywords relevant to topics that may occur during the meeting. 

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