Congressional Review Act – OSHA Recordkeeping

We have discussed in recent blogs and the newsletter the new Fed-OSHA rule on recordkeeping.  The United States House of Representatives has recently voted to repeal a portion of that rule.  It seems likely the Senate will take the same action and that the President will sign it.  In the OSHA final rule, which became effective in January, OSHA clarified that an employer is obligated to establish and maintain records of work-related injuries and illnesses throughout a five-year retention timeframe.  OSHA could use those five-years to cite an employer for record-keeping violations.

It had been OSHA’s longstanding position that an employer’s duty to record an injury or illness continues for the full five-year record-retention period, and this position has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993. In 2012, the D.C. Circuit Court of Appeals issued a decision in AKM LLC (dba Volks Contractors) v. Secretary of Labor (Volks) reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.  It held that OSHA had no more than six months to cite an employer for record-keeping violations.  The new final rule more clearly stated employers’ obligations. The amendments in the final rule added no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.

It remains to be seen how this ruling may affect California. Cal/OSHA requires employers to maintain their injury and illness records for five years.  It appears that at this point at least Cal/OSHA has no plans to change its regulations over the “Volks” rule, subsequent OSHA regulations and Congress repeal of the OSHA rule.

In my opinion as a health and safety professional, record-keeping of injuries and illnesses provide a useful tool to assist an employer in being more aware of workplace hazards, recognize trends and patterns, so that corrective action can be taken.  I agree with reducing regulatory burdens on employers and at first glance, the Congressional decision may appear to do just that. However, I believe this is a step backwards in improving worker health and safety and over the long term is bad decision.