In our Insights for 2017 forecast released earlier this year, one area in which we anticipated significant changes affecting employers was the regulatory arena. That prediction came true this week with the approval of a congressional resolution limiting the timeframe in which the Occupational Safety and Health Administration (OSHA) can penalize employers for violating its requirements to make and maintain records of workplace injuries and illnesses.
President Donald Trump signed H.J. Resolution 83 into law Monday, nullifying the Department of Labor (DOL) rule titled “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” (see 81 Federal Register 91792). The DOL rule, which served to clarify employers’ ongoing obligations regarding those records, was issued in response to the U.S. District Court decision in Volks Constructors v. Secretary of Labor. The court stated:
OSHA cited and fined petitioner Volks Constructors for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was, as Volks points out, at least six months after the last unrecorded injury occurred. Because ‘[n]o citation may be issued … after the expiration of six months following the occurrence of any violation,’ 29 U.S.C. § 658(c), we agree with Volks that the citations are untimely and should be vacated.
The December 2016 clarification rule granted OSHA the authority to issue recordkeeping citations for up to six months beyond the five-year timeframe in which employers are obligated to maintain records on recordable workplace injuries and illnesses. The recordkeeping requirements apply to the current year plus five prior years, so OSHA’s citation authority under the rule coincided with the duration of the recordkeeping requirements.
The resolution approved this week reduces OSHA’s authority to issue citations for recordkeeping errors. Consistent with the Volks decision, a citation must now be issued within six months of the violation. (The resolution does not change employers’ obligations to record and maintain OSHA records for the current year plus five years.)
OSHA inspectors have abided by the Volks decision since 2012, so employers should see no change in the administration’s processes for evaluating recordkeeping accuracy. However, with the new limitations placed on citations, employers will be under pressure to ensure that information on recent recordable injuries and illnesses is as current and accurate as possible.
Sedgwick offers a range of OSHA-compliant recordkeeping services to help employers meet their objectives; click here to learn more. Clients using the advanced level of our OSHA service offering benefit from careful reviews by our expert colleagues, who can also make timely decisions on the recordability of workplace injuries and illnesses. Customers who take advantage of our basic service offering or use other recordkeeping methods must pay close attention to the timeliness of their determinations to avoid citations for recordkeeping violations.
Please watch our blog in the coming months as we continue to monitor developments in OSHA compliance. I expect this will be just one of several legislative changes this year affecting how employers manage their operations.
-Malcolm Dodge, VP of risk services, Sedgwick