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Employers could be facing more recordkeeping citations under a new U.S. Occupational Safety and Health Administration rule that states they have a continuing obligation to maintain accurate injury and illness records for five years.
The U.S. Occupational Safety and Health Administration issued a final rule on Monday to clarify that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years. It would become effective Jan. 18, 2017.
“It kind of opens up the door for OSHA to be able to issue more citations under the recordkeeping standard,” said Edwin Foulke, an Atlanta-based partner at Fisher & Phillips L.L.P. and a former assistant secretary of labor for Occupational Safety and Health.
The final rule is 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. Circuit Court of Appeals for the District of Columbia Circuit in 2012 in a case called AKM L.L.C. v. Secretary of Labor (Volks). The court slapped down the agency’s attempt to cite and fine Volks Constructors for failing to properly record certain workplace injuries and maintain its injury log more than six months after the last unrecorded injury occurred.
“OSHA disagrees with the majority’s reading of the law, but agrees that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations,” the agency said in the regulation. “This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.”
Contrary to OSHA’s opinion, however, the D.C. Circuit’s decision clearly stated that the Occupational Safety and Health Act allows the agency to cite an employer for failing to properly record a recordable incident only if OSHA discovers the omission within six months of the date the employer was obligated to record the incident, meaning the continuing obligation as interpreted by OSHA does not exist, experts say.
“There’s nothing ambiguous about this at all,” said Tressi Cordaro, a shareholder with Jackson Lewis P.C. based in Reston, Virginia. “I don’t know what decision they’re reading, but that’s not what Volks stands for. The proposed rule and the final rule are basically a regurgitation of their arguments in front of the court, which were clearly shot down.”
“I don’t think there’s an employer out there that would disagree that record keeping can be a useful tool and that accurate records are important,” she continued. “But that doesn’t mean that because they serve a purpose that OSHA can simply disregard a very clear statute of limitations.”
Employers do have an obligation to update the logs to reflect new information regarding reported injuries and illnesses, but not to examine their logs on a daily basis to make sure they have recorded every injury and illness, Ms. Cordaro said. However, they should thoroughly document their decision-making processes at the time they determine whether or not an injury or illness is work related, she said.
The incoming Republican-led Congress could try to invoke the Congressional Review Act, which gives the legislature 60 legislative days to disapprove of a regulation, but it is rarely invoked because it requires either presidential approval to enact a resolution of disapproval or a two-thirds supermajority vote to overcome a presidential veto.
However, Congress may have more controversial Department of Labor and OSHA regulations to target, experts say.
“I just don’t know if someone is going to spend the political capital to try to push on this,” Mr. Foulke said. “The silica standard is clearly one that there’s probably more interest in dealing with.”
Opponents of the U.S. Occupational Safety and Health Administration’s silica rule continue to press a federal appeals court to reject the regulation, but OSHA’s outgoing head expects the rule to stand.