Thanks to Sherman and Howard for the update
Congress Repeals New OSHA Injury and Illness
Recordkeeping Rule – President Trump Blocks
Fair Pay and Safe Work Places Executive Order
By Rod Smith, Pat Miller, Chuck Newcom, Matt Morrison,
and Alyssa Levy
Last week, the Senate approved a resolution killing a recordkeeping rule finalized by OSHA in December 2016, and this week, President Trump signed a congressional resolution invalidating the Fair Pay and Safe Workplaces executive order approved by former President Obama.
The recordkeeping rule would have imposed a duty on employers to make and maintain accurate records for five years after the occurrence of a recordable injury or illness, thereby extending OSHA’s ability to cite employers for recordkeeping violations from six months to five years. The House of Representatives earlier passed a similar resolution on March 1st. President Trump is expected to sign the resolution into law soon.
The recordkeeping rule and the Fair Pay and Safe Workplaces executive order were struck down under the rarely-used Congressional Review Act. The Act gives Congress 60 days to review and repeal newly-enacted agency regulations.
As explained in our prior OSHA Update OSHA’s new recordkeeping rule was in direct response to a 2012 U.S. Circuit Court of Appeals decision, referred to as Volks. There, the court agreed with the employer that citations for recordkeeping violations occurring several years before OSHA’s inspection were barred by the six-month statute of limitations under the OSH Act. That decision did not sit well with OSHA, prompting it to amend its recordkeeping regulation to “clarify” that employers have an ongoing duty to make and maintain records for five years. The amended regulation went on to say that employers may be cited any time during the five-year retention period if records are found out of compliance. Congress’s action repeals the new rule, leaving the Volks decision as controlling law.
For now, the holding in Volks may be limited to recordkeeping violations. As the court in Volks points out as an example, if an employer continues to subject its employees to hazards, such as inadequate machine guarding, it may be cited even if the first occurrence of the violation occurred more than six months before OSHA issued its citation. Employers should seek legal counsel if there is any question as to whether a citation is barred by the six-month statute of limitations.
Nothing in Volks changes the long-standing requirements to make and maintain accurate injury and illness records. In addition, nothing in Congress’s action affects another new recordkeeping rule, effective January 1, 2017, requiring certain employers to electronically submit their workplace injury and illness records to OSHA for posting on OSHA’s website. Submission of OSHA 300A Summaries starts July 1, 2017, unless OSHA takes action to delay or modify the rule.
The Obama administration’s Fair Pay and Safe Workplaces executive order, referred to by some as a “blacklisting rule,” was also axed. It would have required contractors and sub-contractors to disclose violations of labor and employment laws when bidding on federal contracts worth at least $500,000. In some cases, contractors and subcontractors also would have been required to report mere allegations of a violation. The disclosures would have been used to decide whether the bidder was “qualified” to be awarded the contract.
The reporting requirements would have included civil judgments and arbitration awards relating to a wide array of federal labor laws, as well as “administrative determinations,” including federal OSHA citations and citations issued by OSHA state-plan states. Other provisions of the executive order would have prohibited federal contractors and their employees from agreeing to arbitrate civil rights claims, and would have required federal contractors to follow certain rules for “pay check transparency.”
Last year, a federal judge issued an injunction that prevented, at least temporarily, most of the executive order from being implemented. On March 6, Congress passed a resolution invalidating the executive order. President Trump’s March 27 decision to sign off on the congressional resolution now blocks the executive order from taking effect.
Rod Smith, Pat Miller, Chuck Newcom, Matt Morrison and Alyssa Levy are part of Sherman & Howard’s Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.
Contact us for more information on safety training.
