OSHA Recordkeeping Rule Starts White House Review

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By Sam Pearson

Oct. 18 — Employers would have to maintain accurate records of worker injuries and illnesses under an OSHA proposed rule sent for White House review.

Under statute, the White House Office of Management and Budget is supposed to complete its review within 90 days. It received the rule Oct. 14, records show.

The proposal ( RIN:1218-AC84) would amend the Occupational Safety and Health Administration’s regulations to clarify that the duty to keep accurate records of recordable injuries and illnesses doesn’t expire if an employer fails to create the records when first required to do so. Rather, the proposed rule states employers would have to maintain accurate records as long as required for the year in which the incident occurred.

That would clear the way for OSHA to cite employers who fail to keep records as long as five years after the fact, up from the current six months. Labor groups have called the change a simple technical correction to maintain OSHA’s enforcement authority, while business groups maintain the change is an end-run around a 2012 legal setback for the agency. The six months is the current statute of limitations from when the alleged violation occurs and when OSHA cites an employer for it.

OSHA pursued the rulemaking after the U.S. Court of Appeals for the District of Columbia Circuit ruled in April 2012 in a case known as Volks II that the agency was required to issue citations for record keeping violations within six months of when the employer fails to record the event AKM LLC v Sec’y of Labor , Volks II, D.C. Cir. App., No. 11-1106, 4/6/12 .

Industry, Labor Split on Rule

Peg Seminario, the health and safety director at the AFL-CIO union, said in an e-mail to Bloomberg BNA on Oct. 18 that the group would consider meeting with OMB about the proposal.

Seminario described the draft final rule as “a very straightforward and simple clarification of what has been the interpretation of OSHA injury recording requirements since the statute was enacted.”

If nothing is done, Seminario said, the D.C. Circuit ruling would make it impossible for OSHA to enforce recordkeeping requirements, even though Congress required OSHA to adopt these requirements.

Business groups have criticized the rulemaking as an inappropriate attempt to overturn the ruling.

In public comments filed in October 2015, Art Sapper, a former McDermott Will & Emery LLP attorney who represented the plaintiffs in the Volks II case, said OSHA should use the courts to challenge the ruling rather than acting through regulation.

To contact the reporter on this story: Sam Pearson in Washington at spearson@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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