OSHA Rule Clarifying an Ongoing Obligation of Employers to Report Workplace Injuries is Rejected. 

Public Law No: 115-21 (04/03/2017)

 

Rep Bradley Byrne [R – AL – 1] introduced bill as H.J.Res. 83 on February 21, 2017.

 
https://www.govtrack.us/congress/bills/115/hjres83

 

This joint resolution nullifies the Department of Labor’s rule that was published on December 19, 2016, about employers’ ongoing obligation to make and maintain records of work-related injuries and illnesses.

A summary of the nullified rule:

SUMMARY: OSHA is amending its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so. The amendments consist of revisions to the titles of some existing sections and subparts and changes to the text of some existing provisions. The  amendments add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not currently required to be made.

The amendments in this rule are adopted in response to a decision of the United States Court of Appeals for the District of Columbia Circuit. In that case, a majority held that the Occupational Safety and Health Act does not permit OSHA to impose a continuing recordkeeping obligation on employers.

One judge filed a concurring opinion disagreeing with this reading of the statute, but finding that the text of OSHA’s recordkeeping regulations did not impose continuing recordkeeping duties. OSHA disagrees with the majority’s reading of the law, but agrees that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations.

This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.

The reasons for the reporting requirements and why they were introduced:

OSHA’s recordkeeping regulations require employers to record information about certain injuries and illnesses occurring in their workplaces, and to make that information available to employees, OSHA, and the Bureau of Labor Statistics (BLS).

Employers must record work-related injuries and illnesses that meet one or more recording criteria, including injuries and illnesses resulting in death, loss of consciousness, days away from work, restricted work activity or job transfer, medical treatment beyond first aid, or a diagnosis of a significant injury or illness by a physician or other licensed health care professional. 29 CFR 1904.7.

Employers must document each recordable injury or illness on an ‘‘OSHA 300’’ form, which is a log of all work-related injuries and illnesses. 29 CFR 1904.29(a) through (b)(1).

Employers also must prepare a supplementary ‘‘OSHA 301 Incident Report’’ or equivalent form for each recordable injury and illness; the Incident Reports provide additional details about the injuries and illnesses recorded in the 300 Log.

At the end of each calendar year, employers must review their 300 Logs to verify that the entries are complete and accurate. 29 CFR 1904.32(a)(1).

Employers also must correct any deficiencies identified during this annual review. Id.

By February 1 of each year, employers must create, certify, and post annual summaries of the cases listed on their 300 Logs for the prior calendar year. 29 CFR 1904.32(a), (b).

Annual summaries must remain posted until April 30 each year. 29 CFR 1904.32(b)(6).

Employers must retain their OSHA Logs, Incident Reports, and annual summaries for five years following the end of the calendar year that they cover. 29 CFR 1904.33(a). The regulations contain provisions explaining when records need to be revised during the retention period.

The information in the OSHA-required records makes employers more aware of the kinds of injuries and illnesses occurring and the hazards that cause or contribute to them. When employers analyze and review the information in their records, they can identify and correct hazardous workplace conditions. Injury and illness records are essential for employers to manage their safety and health programs effectively; these records permit employers to track injuries and illnesses over time so they can evaluate the effectiveness of protective measures implemented in response to identified hazards.

Similarly, employees—who have access to OSHA injury and illness records throughout the five-year retention period (see 29 CFR 1904.35)— can use information about the occupational injuries and illnesses occurring in their workplaces to become better informed about, and more alert to, the hazards they face. Employees who are aware of the hazards around them may be more likely to follow safe work practices and to report workplace hazards to their employers. When employees are aware of workplace hazards, and participate in the identification and control of those hazards, the overall level of safety and health in the workplace can improve.

Additionally, BLS uses data derived from employers’ injury and illness records to develop national statistics on workplace injuries and illnesses. These statistics include information about the source, nature, and type of the injuries and illnesses that are occurring in the nation’s workplaces. To obtain the data to develop national statistics, BLS and participating State agencies conduct an annual survey of employers in almost all sectors of private industry. BLS makes the aggregate survey results available for research purposes and for public information. This data provides information about the incidence of workplace injuries and illnesses and the nature and magnitude of workplace safety and health problems. Congress, OSHA, and safety and health policymakers in Federal, State, and local governments use BLS statistics to make decisions concerning safety and health legislation, programs, and standards. And employers and employees can use BLS statistics to compare the injury and illness data from their workplaces with data from the nation as a whole.

OSHA also has access to employer injury and illness records during the retention period (see 29 CFR 1904.40 and 1904.41), and these records are an important source of information for OSHA and enhance its enforcement efforts. During the initial stages of an inspection, an OSHA representative reviews the employer’s injury and illness data so that OSHA can focus its inspection on the hazards revealed by the records.

This new rule is intended to clarify that if an employer fails to record an injury or illness within seven days, the obligation to record continues on past the seventh day, such that each successive day where the injury or illness remains unrecorded constitutes a continuing ‘‘occurrence’’ of the ongoing violation. If the employer records the injury on the twentieth, thirtieth, or some later day, the violation ceases to occur at that point, and any citation would need to be issued within six months of the cessation of the violation.

This position is entirely consistent with section 9(c). Neither OSHA nor the Commission nor any court has ever treated section 9(c) as precluding all continuing violations.

Indeed, continuing violations are common in the OSHA context, with the Commission taking the position that violations of OSHA requirements, including recordkeeping violations, generally continue as long as employees are exposed to the non-complying conditions. See, e.g., Sec’y of Labor v. Arcadian Corp., 20 BNA OSHC 2001 (Rev. Comm’n 2004) (violation of the OSH Act’s general duty clause stemming from the unsafe operation of a urea reactor); Johnson Controls, 15 BNA OSHC 2132 (recordkeeping); Sec’y of Labor v. Safeway Store No. 914, 16 BNA OSHC 1504 (Rev. Comm’n 1993) (hazard communication program and material safety data sheets); Sec’y of Labor v. Yelvington Welding Serv., 6 BNA OSHC 2013 (Rev. Comm’n 1978) (fatality reporting); Cent. of Georgia R.R., 5 BNA OSHC 1209 (housekeeping).5

Indeed, the Volks II panel also acknowledged that the duties to preserve records, to train employees, and to correct unsafe machines may continue. 675 F.3d at 756, 758.

The OSH Act simply would not achieve Congress’ fundamental objectives if basic employer obligations were not continuing. These cases reflect fundamental OSH Act principles. Safety and health standards are rules that require, inter alia, ‘‘conditions.’’ 29 U.S.C. 652(8).

The absence of a required condition violates the standard. It does not matter when the absence first arose or how long it has persisted. If a condition is required and is not present (e.g., a machine is not guarded or a hazardous materials container is not labeled), a violation occurs and a citation requiring abatement may be issued within six months of the observed noncompliance. This construction follows from the language of the Act and is essential to the Secretary’s ability to enforce compliance.

Accordingly, continuing obligations and violations are a regular occurrence under the OSH Act. 

Nothing in section 9(c), which applies equally to standards and regulations such as recordkeeping requirements, bars them.

This final rule simply reiterates and clarifies employers’ existing obligations to record work-related injuries and illnesses. This rule does not require employers to make records of any injuries or illnesses for which records were not already required. Nor does the rule impose any new requirement that employers reconsider or reassess records once they have been made; employers remain subject to the existing requirement that they ensure the accuracy and completeness of their 300 Logs.

Who voted to get rid of it?

 
https://www.govtrack.us/congress/votes/115-2017/h121

 
In the House, only 6 Republicans voted against it:

Don Young                                                               AK

Ileana Ros-Lehtinen                                       FL 27th

Frank LoBiondo                                               NJ 2nd

Chris Smith                                                        NJ 4th

Pete King                                                          NY 2nd

Daniel Donovan                                             NY 11th

Four Democrats voted in favor:
Kyrsten Sinema                                             AZ 9th
Scott Peters                                                 CA 52nd
Henry Cuellar                                              TX 28th
Filemon Vela                                                TX 34th

 

In the Senate, it was voted along party lines, with 2 Republicans abstaining.

 
https://www.govtrack.us/congressvotes/115-2017s93

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