ONE RULE GONE, ANOTHER DELAYED
April 6, 2017
For clients and friends of Jackson Kelly PLLC
Volume 13, Number 7
©2017 Jackson Kelly PLLC
Earlier this week, President Donald J. Trump, signed the resolution which finalized the Congressional Review Act process to nullify the Occupational Safety and Health Administration’s (“OSHA”) rule commonly known as the Volks Rule. Based on this resolution, OSHA is prohibited from issuing employers citations for failing to record injury or illnesses beyond the six?month statute of limitations set out in the Occupational Safety and Health Act. Additionally, OSHA announced yesterday a delay in enforcement of the crystalline silica standard that applies to the construction industry.
The controversy in recordkeeping began based on a D.C. Circuit decision entitled AKM LLC d/b/a Volks Constructors vs. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012). In that case, the D.C. Circuit struck down OSHA citations that were issued to the employer for mistakes on their OSHA logs going back four and five years. OSHA had maintained that it was authorized to issue citations to employers for inaccurate recording of work-related injuries or illnesses because under the regulations, employers must maintain their OSHA logs for five years. The D.C. Circuit struck down the citations finding that this was contrary to OSHA’s six-month statute of limitations.
In response to the D.C. Circuit decision, OSHA issued what it called a “clarification” of the duty to make and maintain accurate records of injuries or illnesses for as long as an employer must keep and maintain available records for the year in which the injury or illness occurred. The duty did not expire if the employer failed to create the necessary records when first required to do so. In effect, OSHA was arguing a continuing violation if the mistake had been made years prior.
In March 2017, a resolution to nullify this rule was approved by the House and Senate and it was signed this week by the president. Because this rule has been nullified under the Congressional Review Process, OSHA is now prohibited from promulgating a rule in “substantially the same form” as the rule that has been disapproved.
Even though OSHA may not issue citations beyond the statute of limitations for inaccuracies in the logs, employers are still required to maintain their injury and illness logs for five years. Keep in mind, that this resolution only applies to the statute of limitations for OSHA issuing citations for maintaining accurate OSHA logs. It has no effect on the recordkeeping anti-retaliation provision rule that went into effect at the end of last year.
On April 6, 2017, OSHA announced a delay in enforcement of the silica standard for the construction industry in order to conduct additional outreach and provide educational materials and guidance for employers. The rule was originally scheduled to go into effect for construction employers on June 23, 2017. Enforcement of the rule will now begin on September 23, 2017.
In its announcement, OSHA stated that employers in the construction industry should continue to take steps to either come into compliance with the new Permissible Exposure Limit (“PEL”) or implement specific dust controls for certain operations as provided in Table 1 of the standard.
For compliance or enforcement questions, please contact Jackson Kelly PLLC.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
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