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05/10/2017

OSHA Rescinds Controversial Recordkeeping Requirement

Source: Gary Jones, Assistant Vice President, EHS Affairs, Printing Industries of America, May 5, 2017

On December 19, 2016, OSHA issued a final rule titled, "Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness." See 81 FR 91792. The final rule, which became effective on January 18, 2017, resulted in various amendments to OSHA's recordkeeping regulations clarifying that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The key aspect of the rule would have extended the statute of limitations from six months to five years as to when the agency can issue a citation for failing to record an injury or illness. 

OSHA had previously lost this battle in court when the Circuit Court of Appeals for the D.C. Circuit in 2012 [AKM LLC d/b/a Volks Constructors v. Sec'y of Labor, 675 F.3d 752 (D.C. Cir. 2012)] denied their request to extend the statute of limitations. The court ruling negated the citation issued to a company for not keeping their records updated over a 5 year consecutive period. The OSHA statute states that OSHA cannot issue a citation beyond the 6 month statute of limitations as defined in the OSHAct, the legislation that created OSHA. 

OSHA believed that it had the authority to extend the statute of limitations via rulemaking and issued its rule which became known as the "Volks" rule. The rule made recordkeeping requirements a continuing obligation and effectively gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the 5-year retention period, contrary to the 6-month limit. 

On March 1, 2017 (Cong. Rec. pp. H1421-H1430), the House of Representatives passed a resolution of disapproval (H.J. Res. 83) of the rule under the Congressional Review Act (5 U.S.C. 801 et seq.). The Senate then passed H.J. Res. 83 on March 22, 2017. President Trump signed the resolution into law as Public Law 115-21 on April 3, 2017. Accordingly, OSHA is hereby removing the affected amendments to the recordkeeping regulations from the Code of Federal Regulations. 

The final rule becomes effective on May 3, 2017. 

Analysis 

This rulemaking is significant in that it defines OSHA's authority as to when they can cite a company for not keeping their injury and illness records (i.e. Form 300) current. Companies with 10 or more employees are still required to keep and maintain 5 years of injury and illness data. The impact of the legislation and rule recession does not change this requirement. What the legislation did was say that OSHA could not cite companies beyond the 6 month statute of limitation for not keeping the records current. OSHA was citing and fining companies for not keeping the records current over the 5 year retention period. 

Therefore, OSHA can cite you for not having the records. They can't cite you for not keeping them current, past the 6 month deadline. Since there is a 7 day window to record an injury, the period of time a company could be cited for not recording an injury or illness is 6 months and 7 days. 

In addition there are NO revisions in this notice to the following controversial rules: 

  • 1904.36 - Prohibition against discrimination (e.g. (post accident drug testing)
  • 1904.39 - Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA
  • 1904.41 - Electronic submission of injury and illness records to OSHA (due to start on July 1, 2017)

 August 2017 
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  • Fisher & Phillips 9150 South Hills Blvd., Suite 300, Broadview Heights, OH 44147

    August 10, 2017
    10:00AM

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