Congress Repeals OSHA Recordkeeping Rule 23:40, June 1, 2017

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Congress Repeals OSHA Recordkeeping Rule

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Some members of Congress are trying to restore a US Occupational Health and Safety Administration (OSHA) recordkeeping rule that would give OSHA more time to impose penalties on employers who fail to keep records of workers’ injuries or illnesses.  

OSHA Reporting Requirements

When an employee suffers a work-related injury or illness, OSHA requires employers to prepare incident reports and injury logs within 7 days of the incident, and to create a year-end summary. These documents must be kept for five years. But OSHA has only six months after “the occurrence of a violation” to issue a citation. According to OSHA, for decades it has interpreted the “occurrence of a violation” to include the five years for which a company must keep records.

The Volks Rule

In May 2006 OSHA inspected the records of Volks Constructors, going back to January of 2002. OSHA found 67 violations of the requirement to keep proper incident reports, 102 violations of the requirement to enter injuries into the injury log, one violation of the requirement to carry out a year-end review in 2005, and one violation because the wrong person certified a year-end summary. OSHA issued citations and fines in November 2006. Volks protested that the latest improperly recorded injury was in April 2006, and so OSHA’s citations were not within the six-month statute of limitations. OSHA argued that Volks’ violations, going back to 2002, were still occurring when the inspection began on May 10, 2006. But in 2012, a court agreed with Volks that OSHA could not impose the fines.

In an attempt to remedy what it saw as a safe harbor for employees who failed to report workplace incidents, OSHA proposed a rule, informally known as the “Volks” rule, that would start the six-month limitations period on the date OSHA identified a violation. “The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness,” said OSHA, adding that “the duty does not expire just because the employer fails to create the necessary records when first required to do so.” The rule was finalized in December 2016 and became effective January 18, 2017.

In March and April 2017, Congress and President Trump used the Congressional Review Act (CRA) to repeal the new OSHA recordkeeping rule, calling it a “power grab” that created “regulatory confusion for small businesses.”

Accurate Workplace Injury and Illness Records Restoration Act

Because Congress used the CRA to disapprove OSHA’s rule, OSHA can’t issue a new rule that’s substantially the same as the repealed rule unless Congress passes a new law requiring it. With that in mind, on May 16, 2017, several members of the US House of Representatives introduced H.R.2428, the Accurate Workplace Injury and Illness Records Restoration Act, which would give OSHA the authority to reissue the rule.  

“By overturning the OSHA recordkeeping rule,” said Senator Richard Blumenthal (D-CT) in a press release, “Congress created a safe harbor for employers to underreport work-related injuries, illnesses, and deaths. Accurate records are essential to identifying and correcting workplace hazards which cause serious injuries. When the patterns of injuries and illnesses are not reported, they are masked from workers and OSHA, and corrective actions needed to save a life or a limb will not be taken.“

We’ve written before about the importance of providing safety training. If a company doesn’t promptly report an illness or injury and then keep the proper records, it’s almost impossible for employees and OSHA to recognize the danger of working conditions. In addition, if there is an OSHA investigation, companies can use their records to prove that they’ve acted to prevent safety violations in the past.

A Fact Sheet on H.R.2428 highlights what some legislators see as the main problem with the Volks court’s decision. “Since OSHA only has the resources to inspect each workplace once every one hundred fifty-four years, on average,” the Volks court’s strict interpretation of the six-month statute of limitations “provides little deterrent for employers who chose to under-record injuries.“

Other members of Congress don’t think OSHA has a resource problem. Rep. Bradley Byrne (R-Ala.) told the Washington Post: “I don’t think this is going to encourage noncompliance. I think that OSHA is being lazy on getting its investigations done.”

Employers are still required to follow OSHA recordkeeping requirements, even though OSHA’s enforcement of its recordkeeping requirements has been sharply curtailed. But OSHA recordkeeping inspections aren’t just about incident reports and logs.They’re meant to keep employees safe. Even if OSHA never sees the records, company management can examine them to determine whether safety procedures are adequate and whether they’re being followed by employees and supervisors.

Keeping records pursuant to OSHA recordkeeping rules can also give companies a heads-up on problems, so that management can prevent small violations from becoming deadly violations. With such information in hand, small and medium-sized companies can use OSHA’s on-site consultation program to get free, confidential advice that won’t result in OSHA penalties or citations.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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