OSHA’s “Volks” Rule Invalidated
Last week, President Donald Trump signed a joint resolution passed by the House and Senate overturning the Occupational Safety and Health Administration (“OSHA”) rule titled “Clarification of Employers’ Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.”1 The cancellation of the rule effectively means that employers cannot be cited for injury and illness recordkeeping violations older than six months.
As outlined in our prior alert published in December 2016, OSHA issued the final rule during the last days of the Obama administration in response to the D.C. Circuit opinion in AKM LLC d/b/a Volks Constructors v. Sec’y of Labor.2 In Volks, a three-judge panel held that OSHA could not issue citations for injury or illness recordkeeping violations beyond the Occupational Safety and Health Act’s six-month statute of limitations. Rejecting the Volks decision, the final rule allowed OSHA to issue citations to employers for the failure to record an injury or illness up to six months following the five-year record retention period that would have applied to such record. In the preamble to final rule, OSHA embraced Judge Garland’s concurring opinion in Volks which found that the text of OSHA’s recordkeeping regulations themselves did not impose continuing recordkeeping duties but “disagreed with the majority’s conclusion that the OSH Act did not permit continuing record-making obligations.”3
OSHA stated in a press release that the final rule, which took effect on January 18, 2017, “simply returns us to the standard practice of the last 40 years.”4 The agency added that “[t]he amendments in the final rule add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.”5
However, industry and Republican lawmakers argued that the final rule was regulatory overreach by OSHA. A statement of administration policy issued by the White House on February 28, 2017 noted that “The Administration is committed to reducing regulatory burdens on America's businesses, and this rule imposes costs on employers resulting from continuing recordkeeping obligations.”6
Along party line votes, the House and Senate invalidated the rule using the Congressional Review Act (“CRA”).7 Importantly, under the CRA, OSHA is now prohibited from issuing a rule “in substantially the same form” as the invalidated rule.8 However, while OSHA may no longer issue citations outside the OSH Act’s six-month statute of limitations, employers must still maintain injury and illness records for five years.
Electronic Recordkeeping Rule Litigation Delayed
In other OSHA recordkeeping news, a federal court has delayed a decision on the legality of OSHA’s electronic recordkeeping rule.9 The court’s stay delays the case until June 5, 2017. The Department of Labor and industry groups contesting the rule have until July 5, 2017 to propose a summary judgment briefing schedule. The Department of Labor also has until July 5, 2017 to respond to requests from public and industrial health organizations to intervene in the case.
As explained in our prior alert published in July 2016, the rule requires employers to electronically file with OSHA certain injury and illness tracking information. OSHA intends to post the company-specific injury and illness data it collects on its public website. The rule also contains anti-retaliation provisions designed to prevent employers from discouraging injury and illness reporting. The anti-retaliation provisions were scheduled to become effective on August 10, 2016, but OSHA delayed this effective date twice: first to November 1, 2016 and subsequently to December 1, 2016. 10 Industry groups have argued that the anti-retaliation provisions improperly prohibit drug testing and incentive programs that improve worker safety.
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2 675 F.3d 752 (D.C. Cir. 2012).
3 81 Fed. Reg. 91792, 91795 (Dec. 19, 2016).
4 OSHA Trade Release, OSHA issues final rule clarifying the ongoing obligation to make and maintain accurate records of work-related injuries and illnesses (December 16, 2016).
8 5 U.S. Code § 801(b)(2).
9 TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998-L (N.D. Tex. April 3, 2017).