Recordkeeping rules nearly unenforceable after Congressional rollback
Workplace Safety Regulatory Alert
Both the House and Senate have voted to roll back OSHA’s 2016 rule that clarified the Agency’s stance on citing employers for not keeping accurate injury and illness records throughout the required 5-year retention period. The rule, a move the agency took in response to a 2012 court decision, codified the agency’s long-standing policy that injury and illness recordkeeping violations are “ongoing” violations that could be cited within a 6-month window from the time an inspector first discovered the violation. (The court ruling said that the 6-month period began when the violation actually occurred, not when OSHA learned of the violation.)
Congress repealed the rule through the use of the Congressional Review Act (CRA). The seldom-used CRA allows Congress to pass a resolution of disapproval to prevent, with the full force of the law, a federal agency from implementing a rule or issuing a substantially similar rule without congressional authorization. The resolution also prevents future administrations from promulgating a similar rule. President Trump signed the law April 3, 2017.
According to former OSHA leader, Dr. David Michaels, rolling back the rule could have devastating impacts on safety and health.
“OSHA does not have the resources to inspect most employers even once during any five-year period, much less every six months,” Michaels says. “As a result, few OSHA inspections occur soon after an injury, and even when they do, it often takes inspectors several months to gather the evidence necessary to issue a citation.”
Michaels says that in most situations where an employer “knowingly” fails to record a serious injury, OSHA will now have no ability to issue a citation within six months of the injury.
“OSHA’s requirements will become virtually unenforceable and employers who deliberately fail to record large numbers of injuries will not be held accountable.”
Michaels notes that the 2012 court decision had an immediate impact on OSHA inspections: citations for recordkeeping violations dropped 75%.
What’s more, the larger, more impactful cases decreased dramatically.
In 2011, the last full year before the court decision, OSHA completed 81 inspections in which employers were issued penalties of $5,000 or more for recordkeeping violations, including 6 with penalties over $40,000, according to Michaels.
“Over four subsequent years (2013-2016), there were only 31 inspections with recordkeeping penalties of $5,000 or more, and none over $40,000.)”
And, recordkeeping enforcement is not just about forcing employers to do paperwork. In fact, Michaels says some of OSHA’s most impactful cases came from the identification of deliberate patterns of recordkeeping violations: high hazard companies that had hidden injuries for years or even kept two sets of books.
“These violations identified serious workplace hazards (and) led to important improvements that prevented many subsequent injuries,” Michaels says.
Congressman Bradley Byrne (R-AL), Chairman of the House Workforce Protections Subcommittee, who sponsored the rollback legislation, sees things differently. He viewed the requirement as a “power grab” by OSHA. Further, Byrne says the regulation was flawed, in part because the courts had already ruled that the general issue of citing employers for past recordkeeping violations was a poor practice and questionable interpretation of the regulation. Byrne viewed the regulation as an attempt to circumvent the court.
Where does this leave employers?
Regardless of the Congressional action on the enforcement of the “continuous nature” of recordkeeping violations, the requirements to record injuries and illnesses still remains, just as it has since 2001. Employers must still keep injury and illness logs, post the annual summary, and promptly report severe injuries, such as amputations.
Certainly, the risk for being cited for an isolated recordkeeping error is low (as has always been the case). The new rule, however, makes it tougher for OSHA to use enforcement for more egregious and substantive failures to record, which is where most of the major enforcement has taken place in the past.
Most employers agree, that, required or not, tracking injuries and illnesses makes good sense, in conjunction with other more proactive means.
Contractors may still ask for injury and illness records and rates for bids.
Workers’ compensation recording remains in tact as well, with some employers even using their “First Reports” as a substitute for their OSHA 300 Log.
And, for employers in states with their own State OSHA plans, their state rules remain in effect. Some may pull back based on the Federal action, but many may not. So, if you have multiple locations, obviously, everyone needs to be recording the same for benchmarking purposes. It makes sense operationally.
Finally, the Bureau of Labor Statistics (BLS) relies on employer data from OSHA logs to determine trends that end up shaping regulations and public health policy. The survey, for those who receive it, must still be completed.
In reality, the overturning of the rule has the most impact on OSHA and employers who intentionally want to hide injuries and illnesses (which is certainly not insignificant).
For employers who value compliance and identifying trends in injuries/illnesses, not much will change as a result of this action.
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