Congress Overturns OSHA Recordkeeping Rule

The U.S. Senate narrowly approved legislation March 22 that permanently overturns a final OSHA recordkeeping rule.
The Senate voted 50–48 in favor of House Joint Resolution 83, scrapping the rule that took effect Jan. 17, 2017.
That rule extended—from six months to five years—the period of time employers could face fines for not keeping records on workplace incidents.
The legislation nullifying the rule previously passed the U.S. House by a 231-191 vote and now goes to the president, who is expected to sign it into law.

Background

Under the OSH Act, certain employers are required to record injuries and illnesses that occur at work and maintain those records for five years.
Under the law, OSHA can issue citations for six months after a recordkeeping violation occurs.
However, it was OSHA’s longstanding practice that it should be able to issue citations for the entire five-year recordkeeping period.

The Occupational Safety and Health Review Commission allowed OSHA to continue the practice by agreeing that citations can cover cases where the recordkeeping obligation arose any time during the five-year record retention period.
In 2006, OSHA took action against Volks Constructors in Louisiana for recordkeeping violations that occurred nearly five years earlier, well beyond the six month statute of limitations.
Volks challenged OSHA in the DC Circuit Court of Appeals for those citations and won.
In response, OSHA promulgated the rule to continue their practice of issuing citations outside the statute of limitations.

Implications for Employers

The upshot of the March 22 Congressional action is that OSHA can no longer cite a company for failing to record an injury going back up to five years instead of just six months.
Other OSHA recordkeeping requirements remain in effect, including the electronic recordkeeping requirements issued as a final standard in May 2016, which went into effect on Jan. 1, 2017.