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Obama administration rule extended citation period for record-keeping violations
The House of Representatives voted on March 1 to block an Occupational Safety and Health Administration (OSHA) rule that extended the agency's authority to issue citations for record-keeping rule violations from six months to about five years.
The rule does nothing to improve workplace health and safety, Rep. Bradley Byrne, R-Ala., said during a House committee hearing on Feb. 27. Byrne introduced the resolution to block the rule under the Congressional Review Act.
He said he would rather see OSHA spend its time and resources helping small and medium-size businesses understand what they need to do to prevent injuries and illnesses from occurring in the first place.
[SHRM members-only how-to guide: How to Determine Regulatory Requirements for Safety]
Defending the agency's rule, Rep. Joe Courtney, D-Conn., said that employers who don't properly record injuries and illnesses shouldn't be rewarded.
Eric Conn, an attorney with Conn Maciel Carey in Washington, D.C., told SHRM Online that OSHA's rule is an express effort by the agency to circumvent a court ruling that limited the citation period to six months (AKM LLC D/B/A Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)).
"OSHA has a regulation that requires employers to keep their record-keeping logs for the past five years," explained John Martin, an attorney with Ogletree Deakins in Washington, D.C.
The agency has always maintained that it reserves the right to issue a citation for any record-keeping violations in those logs, regardless of how far back they go, he said. For example, if today an OSHA inspector discovered an inaccurate entry from 2013, the agency would issue a citation.
In the Volks court case, a company challenged this practice, citing to the Occupational Safety and Health Act, which states that "[n]o citation may be issued … after the expiration of six months following the occurrence of any violation."
Because businesses have a duty to properly record covered incidents on their logs no later than seven days after the incident, Volks argued that the statute of limitations prohibits OSHA from issuing citations for violations that occurred more than six months and seven days ago.
"OSHA disagreed, and said the recordkeeping regulations created a continuing obligation to properly record and update one's record-keeping logs throughout the five-year retention period," Martin explained.
The court, however, sided with the company.
"OSHA got its wings clipped," said Carla Gunnin, an attorney with Jackson Lewis in Atlanta. "It would be difficult for OSHA to show willful violations within a six-month timeframe, and everyone expected OSHA to challenge this ruling."
OSHA's so-called Volks rule was finalized on Dec. 19, 2016, during the last few weeks of the Obama administration. The rule says that "violations are subject to citations and penalties for up to six months after the last instance of employee exposure to the violative condition."
As Gunnin said, "This last-minute rule would go back in time again and allow OSHA to look back five years plus six months."
Congressional Review Act
Byrne challenged the Volks rule under the Congressional Review Act (CRA), which gives Congress 60 legislative session days to overrule agency regulations. The resolution of disapproval must be signed by the president; otherwise, a two-thirds majority vote by both chambers can overcome the president's veto.
The CRA has been used to target "midnight rules" put through in the final days of an outgoing president's administration when there's a transition to a new party, Conn said. "It allows Congress to take up a piece of regulation and quash it with a simple majority and the president's approval without needing formal rulemaking or a filibuster-proof vote."
"Since Republicans control of both chambers and we have a Republican president," Gunnin said, "now may be the time when everything lines up right to use the CRA."
Regarding the new resolution, Martin said all Byrne's resolution needs are the votes.
The House of Representatives approved the resolution in a 231-191 vote. If it also passes the Senate, Martin thinks President Donald Trump will sign it "and the Volks rule will be dead, with no chance for resurrection. There are no means for OSHA or any other group to challenge the CRA resolution," he noted. "It is not subject to judicial review."
He also doubts the resolution will receive pushback from Republicans. "We're not talking about a safety or health standard; this is essentially a paperwork regulation, the kind Congress loves to criticize," he said.
"If the challenge is successful, employers will not to have to worry about far-reaching citations," Gunnin said, "but it will be difficult for OSHA to show willful violations within a six-month timeframe."
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