Volks

On May 16, 2017, Amanda R. Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar regarding “OSHA’s E-Recordkeeping and Anti-Retaliation Rule.” Here is a link to a recording of the webinar.

OSHA’s controversial new Electronic Injury and Illness Recordkeeping data submission rule, along with its new Anti-Retaliation elements has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals, and a legal challenge complete with a preliminary injunction motions, and continuing legal challenges. As of today, all elements of the rule are in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before July 1, 2017, thousands of employers will, for the first time, be required to submit injury and illness recordkeeping data to OSHA, possibly for publishing online.

Participants in this complimentary webinar learned about:

Requirements of OSHA’s Electronic Injury Recordkeeping data submission
The status of OSHA’s new database to receive injury data
OSHA’s policy on publishing the injury data received from employers
The Anti-Retaliation Elements of the E-Recordkeeping Rule
The status and future of this new Final Rule
The fate of “Volks” Recordkeeping Statute of Limitations Rule

This was the fifth webinar event in Conn Maciel Carey’s 2017 OSHA Webinar Series. Plan to join us for the remaining complimentary monthly OSHA webinars. Click here for the full schedule and program descriptions for the 2017 series, and/or to register for the entire 2017 series, click here to send us an email request, and we will get you registered.

If you missed any of our prior webinars in the 2017 or past years’ OSHA Webinar Series, here is a link Conn Maciel Carey’s Webinar Archive.

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 Continue reading →