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Bill seeks to restore OSHA recordkeeping rules

Joe Mont | May 17, 2017

Democrats in the House and Senate are seeking to reinstate an Occupational Safety and Health Administration’s rule requiring that employers “make and maintain an accurate record of each recordable employee injury and illness.”

The rule was overturned by a Resolution of Disapproval under the Congressional Review Act and approved by President Donald J. Trump on April 3.

“This legislation would reinstate record-keeping requirements that protect workers from being hurt on the job,” said Sen. Richard Blumenthal (Conn.). “It imposes no new costs on employers – in fact, it may increase savings, because injuries are bad for business and cost time and money. Responsible employers want safe workplaces. It’s really that simple.”

Democrats —including those on the Senate Committee on Health, Education, Labor and Pensions — announced the Accurate Workplace Injury & Illness Records Restoration Act on May 15.

“By overturning the OSHA recordkeeping rule, Congress created a safe harbor for employers to underreport work-related injuries, illnesses, and deaths,” a statement by the bill’s sponsors says. “Accurate records are essential to identifying and correcting workplace hazards which cause serious injuries. When the patterns of injuries and illnesses are not reported, they are masked from workers and OSHA, and corrective actions needed to save a life or a limb will not be taken.”

Due to an adverse D.C. Circuit Court of Appeals opinion in 2012, OSHA was blocked from citing employers for injury and illness recordkeeping violations that began more than six months earlier. The three judge panel in that case held that the OSHA Act’s six-month statute of limitations started to run on the date the employer first had to record a serious workplace injury (which is seven days after the recordable injury), even though the employer continued to fail to record many workplace injuries for several years.

“Since OSHA only has the resources to inspect each workplace once every one hundred fifty-four years, on average, this interpretation of the Act provides little deterrent for employers who chose to under-record injuries,” the bill's sponsors say.

To address that particular concern about the regulation, OSHA issued a rule entitled Clarification of Employers’ Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness in December 2016. It clarified that an employer’s obligation to make and maintain workplace injury and illness records is a continuing obligation, and that such duty does not expire solely because the employer fails to create the necessary records when first required to do so.

That rule was invalidated in April by President Trump. Using the Congressional Review Act critics in the House and Senate argued that OSHA had exceeded its statutory authority in issuing a new rule that permitted citations outside the six-month statute of limitations.

As a consequence of the D.C. Circuit’s decision and the Resolution of Disapproval, there is a safe harbor for under recording of workplace injuries. Since OSHA’s new rule was vacated under the Congressional Review Act, OSHA cannot issue a substantially similar rule absent new authorizing legislation.

The bill would reinstate OSHA’s authority to require employers to make and maintain accurate workplace injury records as an ongoing obligation. It also enables the agency to issue a citation in those cases where the violation of the recordkeeping requirements continues for more than six months from the date the employer should have first recorded the injury.

The bill, in specifics, would:

  • Amend the six-month statute of limitations in the OSHA Act so that the six-month clock starts running on the date the agency identifies a continuing violation, instead of on the first date that the violation occurs.
  • Require OSHA to issue a new regulation within 180 days of enactment which clarifies that an employer’s obligation to make and maintain accurate injury and illness records is a continuing obligation, and that such duty does not expire solely because the employer fails to create the necessary records when first required to do so.
  • Provide specific authorization for the rule, pursuant to the Congressional Review Act.

The legislation creates no new employer recordkeeping or reporting obligations; it clarifies OSHA’s authority to enforce longstanding requirements.

 “Keeping accurate records is the bare minimum for transparency and this bill is a good first step to ensure that OSHA, which is under-resourced and overstretched, can at least conduct oversight of the worst violators to make sure workers have the safe environment they deserve,” said Rep. Joe Courtney (Conn.).

“Eliminating OSHA’s authority to ensure employers maintain accurate injury and illness records will result in misleading safety statistics collected by the Bureau of Labor Statistics and OSHA,” said Rep. Bobby Scott (D-Va.). “I know of no one whose life was saved or injury prevented based on fake safety statistics.”

The bill is co-sponsored by 14 members of the house and six senators.

Among the organizations supporting the bill are the American Industrial Hygiene Association, AFL-CIO, National Council for Occupational Safety and Health, National Employment Law Project, Public Citizen, and United Steel Workers.