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House Overturns OSHA’s 2015 Recordkeeping Amendment Stemming from the Volks Case

March 3, 2017
House Republicans call the amendment, which the agency claimed clarified a long-standing position that the duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness, “an unlawful power grab.”

In one of the first in what probably will be a long line of changes for recent regulations and amendments promulgated by OSHA during the Obama administration, the U.S. House of Representatives on March 1 passed H. J. Res 83, a resolution of disapproval, under the Congressional Review Act.

Introduced by Rep. Bradley Byrne (R-AL), chairman of the Subcommittee on Workforce Protections, the resolution would block OSHA’s Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness. The rule is  referred to by the committee as the “Volks” rule because of the legal case that triggered the clarification.

According to Republican House members, the rule violates the policies of the Occupational Safety and Health Act (OSH Act) and fails to improve worker protections.

“OSHA’s power grab is not only unlawful, it does nothing to improve workplace safety,” said Byrne. “What it does do is force small businesses to confront even more unnecessary red tape and unjustified litigation.”

According to Byrne, “OSHA should collaborate with employers to prevent injuries and illnesses in workplaces and address any gaps in safety that might exist. I am pleased the House has acted to block this unlawful rule, and look forward to continuing our efforts to support proactive safety policies that help keep America’s workers safe.”

According to the OSH Act, employers are required to record and maintain a log of workplace injuries and illnesses that occur during a five-year span. However, the law explicitly says that employers only can be cited for record-keeping violations that occurred within a six-month time period.

In November 2006, OSHA issued a citation alleging that Volks Constructors failed – as long ago as 2002 – to record injuries on its Form 300 injury logs and to create Form 301 injury reports. Volks claimed that the citations were untimely because the OSH Act has a six-month statute of limitations.

OSHA at first argued to the Occupational Safety and Health Review Commission that it could prosecute Volks because the statute of limitations period did not start to run until OSHA knew or should have known of a violation. OSHA then claimed that the violations were “ongoing,” and therefore the citations were justified. The commission upheld OSHA’s continuing violation argument. Volks appealed.

On April 6, 2012, a panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously held that OSHA no longer could issue citations alleging that an employer failed, more than 6 months before, to record an employee injury on a log. In AKM LLC dba Volks Constructors v. Secretary of Labor, the court rejected OSHA’s position that such violations were “continuing.”

“We do not believe Congress expressly established a statute of limitations only to implicitly encourage the Secretary to ignore it,” the D.C. Circuit Court noted.

“Congress has a responsibility to ensure the policies put forward by OSHA not only respect the rule of law, but also improve the health and safety of our nation’s workplaces. Remarkably, the Obama administration’s Volks rule fails on both counts,” said Rep. Virginia Foxx, chairwoman of the Education and the Workforce Committee.

She added that the rule created “legal uncertainty for small businesses while doing nothing to strengthen protections for workers.”

According to the Subcommittee on Workforce Protections, OSHA’s amendment to the recordkeeping rule:

  • Is an unlawful power grab. Congress has the authority to write laws, not government agencies. The OSH Act explicitly states that an employer may only be cited for failing to keep proper health and safety records within six months.
  • Does nothing to improve worker health and safety. Committee members said that “OSHA should spend its time and resources collaborating with employers to address existing workplace conditions and prevent injuries and illnesses from happening in the future.”
  • Creates regulatory confusion for small businesses. The rule particularly hurts small business owners who will face a confusing maze of record-keeping standards and unwarranted litigation, according to the committee.

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