Is the New Recordkeeping Rule in Trouble?

Flush with their success on the ergo rule, NAM and their\r\nRepublican allies in Congress take aim at another late-inning\r\nClinton-era rule.

The new recordkeeping standard is supposed to take effect Jan.1, 2002, but the combination of a National Association of Manufacturers (NAM) lawsuit, bureaucratic roadblocks, and political opposition makes it increasingly likely that employers will still be using the old forms next year.

"I think there''s a good chance implementation will be delayed a year," said Steve Newell a consultant who specializes in recordkeeping at Organization Resource Counselors. "Until we get a new OSHA administrator we really don''t know what OSHA is going to do with this thing."

OSHA''s previous administrator, Charles Jeffress, has said that states ordinarily need six months to adopt new recordkeeping rules, so with each passing day it becomes more likely the long-awaited rule will be delayed once again.


NAM filed a lawsuit March 19 asking the U.S. District Court for the District of Columbia to rescind the rule. NAM argues the new standard exceeds OSHA''s statutory authority and was drafted with the now repealed ergonomics standard in mind.

Baruch Fellner, an attorney who represents NAM, confirmed reports that "discussions have begun" concerning a possible settlement of the lawsuit. The AFL-CIO, which supports the new rule, filed to join the lawsuit in April and the union is now participating in the discussions with the Department of Labor (DOL) and NAM.

Fellner said that since the recordkeeping rule was issued to accompany the rescinded ergo standard, he expects the new administration to take a careful look at the recordkeeping standard.

That appears to be happening. As of last week, DOL had not yet completed its review of how to proceed on recordkeeping.

As the demise of the ergonomics rule made clear, political leaders on Capitol Hill are very good at listening to what NAM has to say. In testimony before the House Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs, James Knott, CEO of Riverdale Mills Corp., speaking on behalf of NAM, said OSHA''s new recordkeeping requirements will "unnecessarily, inappropriately and substantially increase the paperwork burden of employers."

Knott contended that the new rule requires the recording of injuries and illnesses that have little or no relationship to the workplace because of the standard''s overly broad definition of what constitutes a work-related injury.

Rep. Doug Ose, R-Calif., who chairs the subcommittee, made a statement during the hearing that echoed Knott''s complaints.

Newell, who said business opposition to the new rule is not unanimous, disputed the argument that it will lead to a rise in recordable illnesses and injuries. "If you don''t understand the old rule, then it looks like recordable cases will go up, but if you understand the old rule this is a substantial improvement."

What Should Companies Do?

Another obstacle confronting the new rule, familiar to recordkeeping-watchers, is that the Office of Management of Budget (OMB) must approve provisions that impose a paperwork burden on employers. In late March, facing the 90-day deadline of the OMB review and uncertain of what it was going to do with recordkeeping, DOL withdrew the rule from OMB review. This means that even if the administration decides it wants to implement the new recordkeeping standard, it would probably have to be resubmitted to OMB for review.

What should companies do in the meantime? One thing they should not do is to use the new forms this year, according to William Ament, a consultant at ORC. "The most frequent calls we were getting was from people asking if they could use the form this year," Ament said. No matter what is decided in Washington about the fate of the new recordkeeping rule, the old forms must be used at least through the end of 2001.

"Now that there''s this confusion," Ament said, "we''re suggesting that companies might want to be cautious about spending time or money preparing for the new rule." He added that he does not believe most people are doing a great deal about the rule, at least for now.

The confusion emanating from Washington is probably not yet on the radar screen for companies that only need two or three months to prepare for the new standard.

That''s the situation at the Dana Corp., an automotive parts manufacturer in Muskegon, Mich., according to Shirley Richards-Young, the companies benefits administrator.

"We''re not doing anything to prepare for the new recordkeeping standard," she said. "We''re just doing what we normally do."

by James L. Nash

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