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Overturning OSHA Volks rule easier on employers’ wallets

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Employers may get some relief from record-keeping fines if a U.S. Occupational Safety and Health Administration rule requiring them to keep injury and illness records for five years is reversed, but they will still have to deal with more contentious agency rules for the time being. 

The U.S. House of Representatives voted 231-191 to adopt H.J. Res 83, a resolution of disapproval under the Congressional Review Act that targets OSHA’s rule that clarifies that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years. The rule now goes to the Senate, and the Trump administration issued a statement of administration policy on Feb. 28 indicating its support. 

“The administration is committed to reducing regulatory burdens on America's businesses and this rule imposes costs on employers resulting from continuing record-keeping obligations,” the statement said. “If this bill were presented to the president in its current form, his advisors would recommend that he sign it into law.” 

The rule, which became effective Jan. 18, was OSHA’s attempt to affirm a long-held agency stance that has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993, but was rejected by the U.S. Court of Appeals for the District of Columbia Circuit in 2012 in AKM L.L.C. v. Secretary of Labor (Volks)

“The Volks rule was kind of a clarification on that statute of limitations issue for record-keeping citations so it’s almost like undoing a clarification,” said Punam Kaji, a Houston-based attorney in the labor and employment and OSHA practices of Haynes & Boone L.L.P. 

“OSHA has always required employers to retain their OSHA logs for five years because OSHA could come in and look at that history and based on that history they could decide if there were some target areas that they needed to address,” said Donald Wilson, vice president and senior loss control consultant, Lockton Cos. L.L.C. in Kansas City. 

“I personally can’t imagine any employer doing anything different even with Trump overturning this,” he added. 

The advantage for employers of overturning the Volks rule is that they will not be fined if they fail to include a recordable injury on their OSHA logs, Mr. Wilson said. 

“OSHA is in the business of preventing injuries,” he said. “I don’t know where there is an advantage by levying a fine on an employer who made an honest mistake two years back. I don’t think it changes anything other than an employer does not have to lose sleep over the fact that they might have misidentified an accident.” 

The Congressional Review Act gives Congress the ability to overturn agency rules adopted in the previous 60 legislative days, meaning the legislature can review Obama administration regulations submitted to Congress as far back as mid-June 2016 when factoring in Congressional recesses. OSHA rules that fall within the review window include the beryllium rule, which the Trump administration has already proposed delaying for the second time, and the slips, trips and falls rule

However, that window does not stretch back far enough to include more controversial regulations such as OSHA’s silica and the electronic record-keeping rules although both regulations are facing legal challenges that could impact their future. 

“That is not, from my understanding, within the umbrella to be removed under the Congressional Review Act and I think that’s important because that’s the one that has the most additional new requirements for employers,” Ms. Kaji said of the electronic record-keeping rule. “Those changes need to be happening in the workplace even though there’s a new administration.”

The CRA had only been successfully used once to undo a federal agency regulation when President George W. Bush and Congress derailed OSHA’s efforts to regulate ergonomics via a formal standard in 2001. But the CRA has already been used twice this year to overturn regulations issued by the U.S. Securities and Exchange Commission and the Department of Interior. 

“That is going to be one of the main tools,” Ms. Kaji said. “It could also be used on the walking-working surfaces and the personal protective equipment rule that came out recently. I’m not sure why you would use it for that rule. I don’t see those changes being controversial in any way.”