Congress Passes Resolution to Overturn OSHA Final Rule on Recordkeeping Citations
March 28, 2017 •
On March 22, the U.S. Senate voted 50-48 to pass H.J. Res. 83 under the Congressional Review Act (CRA), to repeal the U.S. Occupational Safety and Health Administration’s (OSHA) “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” also known as the “Volks Rule.” A related House resolution passed on March 1 by a vote of 231-191. President Trump is expected to sign the resolution into law, effectively overturning the rule and barring OSHA from issuing a similar one.
Last December, OSHA released its final rule clarifying an employer’s continuing obligation to make and maintain accurate injury and illness records.
The amendments in the final rule didn’t add any new compliance obligations or require employers to make records of any injuries or illnesses for which records are not already required. However, the final rule did extend the statute of limitations for which the agency can issue citations for recording, keeping violations to five years and six months, as opposed to just six months that most employers interpreted previously. OSHA maintained that it can cite employers for recordkeeping violations for up to six months after the five-year retention period expires, not just six months after the initial failure to record (first day of occurrence, or injury), without running afoul of the OSH Act’s statute of limitations.
The rule was the result of the AKM LLC v. Secretary of Labor (Volks) decision in 2012, a case decided against OSHA. In that case, the U.S. Court of Appeals for the District of Columbia Circuit ruled that OSHA citations for recordkeeping violations must be issued within six months of the first day of an alleged failure to record the injury or illness; a citation issued after the six-month period is barred. OSHA had subsequently issued its final rule to go against the D.C. Circuit ruling.
During the regulatory process, ACA, along with many others, opposed to this rulemaking. ACA and others had urged OSHA to withdraw the proposed regulation because the agency does not have the legal authority to expand the six-month statute of limitations in which it can issue citations for violations of recordkeeping requirements.
For more information on the final rule, click here.
Contact ACA’s Raleigh Davis for more information.