Washington Legal Foundation just published Eric J. Conn’s “Legal Opinion Letter” article regarding OSHA’s new “Volks Rule” attempting to circumvent the D.C. Circuit ruling limiting OSHA’s statute of limitations for injury and illness recordkeeping violations from 5½ years to six months.

Below is a summary of the article with an update about Congressional action scrutinizing the Rule, and here is a link to the full article.

In the waning days of the Obama Administration, OSHA promulgated a new rule purportedly “clarifying” employers’ continuing duty to correct injury and illness recordkeeping logs for the entire five-year period the logs must be kept. See 81 Fed. Reg. 91,792 (Dec. 19, 2016). The final rule, dubbed the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” amended OSHA’s existing recordkeeping regulations in order to circumvent a 2012 decision of the United States Court of Appeals for the District of Columbia in AKM LLC v. Secretary of Labor (Volks II), 675 F.3d 752 (DC Cir. 2012). This “clarifying” rule is unlawful and should be repudiated.

OSHA’s Injury and Illness Recordkeeping regulations require employers to record certain injuries and illnesses within seven days of the incident and also to preserve a copy of those records for five years. 29 C.F.R. Part 1904 et seq. Separately, the Occupational Safety and Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to issue citations alleging violations of regulations adopted under the Act. 29 U.S.C. §§ 651-678. The statute of limitations in the OSH Act states, however, that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).

The article provides a historical look at how OSHA interpreted and enforced its injury and illness recordkeeping regulations; a broad interpretation of the five-year record-retention policy to include both a duty to first record an injury and also to continuously maintain an accurate record of the injury for the entire five-year retention period.  That interpretation was called into question in 2006 when a construction employer, Volks Constructors, challenged 60 recordkeeping citations that covered improperly recorded or unrecorded injuries as far back as five years before the citations issued.  The citations were vacated on appeal to the federal Court of Appeals for the D.C. Circuit, which ruled that OSHA’s reliance on its interpretation of Part 1904 to issue recordkeeping citations for five years was impermissible and violated the OSH Act’s six-month statute of limitations.

The majority opinion of the D.C. Circuit relied on the legislative text of the OSH Act, not the recordkeeping regulation. The court first noted that OSHA’s reading a continuing obligation to record into the recordkeeping provisions of the OSH Act . . . “leaves little room for Section 658(c),” the provision containing the six-month statute of limitations. AKM LLC, 675 F.3d at 75. . . .  The court ultimately rejected OSHA’s argument that the OSH Act authorizes the imposition of a continuing obligation to make or update records beyond the “discrete” obligation to make a record within a week of a recordable illness or injury. . . .  Rather than appeal the DC Circuit’s decision to the Supreme Court or petition the D.C. Circuit for rehearing en banc, OSHA countered the D.C. Circuit’s decision with a modified recordkeeping regulation.

The article concludes by analyzing the legality of OSHA’s unlawful and unconstitutional effort to usurp federal judiciary’s authority to interpret Congressional statutes by way of administrative rulemaking.  The rule, therefore, is on shaky ground.

Indeed, a U.S. House of Representatives Joint Resolution (H.J. Res. 83) that would revoke the Volks Rule under the Congressional Review Act (“CRA”) was introduced by Congressman Byrne (R – AL).  The Resolution is set for a hearing on February 27, 2017, before the House Committee on Rules, which is necessary before the House can vote on the proposal.  As of now, no other Representatives have co-sponsored the bill, and even if it passes the House, it would have to also be passed by the Senate and signed by Pres. Trump before the expiration of 60 legislative days from the date the rule was received by this Congress.

Legislative days is a murky concept, and is counted differently in the House and Senate, and the triggering date is also unclear, but we target the deadline for the rule to be quashed by the CRA in either late March or April.  It may be an uphill battle to get this done in time because Senate Republicans are likely to be very cautious in using the CRA to undermine any labor-related rules while they are still fighting the Senate Democrats to get a Secretary of Labor confirmed.  Now on to Trump’s plan B in that regard, Alex Acosta recently nominated after Andy Puzder’s nomination was withdrawn, and no hearing scheduled for Mr. Acosta, the window on using the CRA on the Volks Rule may close.

Regardless, because of the obvious flaws in OSHA’s legal authority to promulgate this rule, it is ripe for a legal challenge in federal district court, or even for a new rulemaking to undo the rule as Pres. Trump’s political appointees start to infiltrate OSHA.