Regulatory Developments

OSHA Recordkeeping Rule Overturned by Senate Vote

For the first time since the ergonomics rule was overturned by using the Congressional Review Act during the last days of the Clinton administration, yesterday, the Senate voted 50-48 to adopt H.J. Res 83, overturning OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally known as the “Volks” rule.

Capitol building

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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. This final rule was in response to a 2012 U.S. Court of Appeals for the District of Columbia decision that held that OSHA could not issue citations for failing to record an injury or illness beyond the 6-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

To get around the court’s ruling, OSHA finalized this rule, which became effective January 17, 2017—3 days before President Trump’s inauguration. According to OSHA, the rule was meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”

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