The House of Representatives has voted to block a new Occupational Safety and Health Administration recordkeeping rule implemented in the last weeks of the Obama Administration. “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” was published in the Federal Register on December 19, 2016, and became effective on January 18, 2017.
OSHA issued the rule in response to the U.S. Court of Appeals for the D.C. Circuit’s AKM LLC d/b/a Volks Constructors v. Secretary of Labor. (For details, see our article, OSHA Recordkeeping Violations Subject to Six-Month Limitations; Continuing Violation Theory Rejected.) The Court held that because of the Occupational Safety and Health Act’s six-month statute of limitations, OSHA could not cite an employer for failing to record an injury or illness when the obligation to record that injury or illness exceeded the limitation period.
Despite this holding, OSHA engaged in rulemaking to overturn the decision, attempting to “clarify” through added language in the regulatory text that employers have a continuing obligation to record injuries and illnesses. This includes, in OSHA’s view, a requirement for employers to record injuries and illnesses even if they failed to initially comply with an OSHA recordkeeping requirement at the time the injuries or illnesses occurred.
On February 21, 2017, House Republican lawmakers introduced H.J. Res. 83 to repeal the rule, spurred by widespread concern that the rule was an attempt to overturn the plain language of the OSH Act through regulation. On March 1, 2017, the House voted for the legislation, 231-191. The vote was split mostly along party lines, with 227 Republicans and four Democrats supporting the bill, and 185 Democrats and six Republicans against the bill.
The bill was received by the Senate on March 2, 2017, where it is pending action.
Jackson Lewis attorneys are available to assist employers in understanding legislative developments and its implications for operations.
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