As part of efforts by Congress to overturn various regulations published during the waning days of the Obama administration, the House of Representatives on March 1 passed HJR 83 on a largely party-line vote. The resolution, unlike what we have come to expect in congressional work product, is a model of conciseness:
“That Congress disapproves the rule submitted by the Department of Labor relating to ‘Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness’ (published at 81 Fed. Reg. 91792 (December 19, 2016)), and such rule shall have no force or effect.”
The rule, announced by the Occupational Safety and Health Administration (OSHA), created a continuing obligation to maintain accurate injury and illness records for five years (OSHA 300 Log). The rule also required the accurate filing of Form 301 incident reports throughout the five-year, retention-and-access period if employers do not prepare the report when first required to do so,
HJR83 is a technical way to say that the Dec. 19, 2016 rule will be nullified if the Senate concurs and President Trump signs the legislation. In case there was any doubt, on Feb. 28 the office of the president issued a statement saying, “If this bill were presented to the president in its current form, his advisers would recommend that he sign it into law.”
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When the Senate received HJR 83 on March 2, it immediately introduced SJR 27 to accomplish the same purpose and with identical language.
Critics of the regulation felt that it was a last-hour effort to undo the decision of a panel of the U.S. Court of Appeals for the District of Columbia Circuit in AKM LLC (dba Volks Constructors) v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). In that case, per OSHA’s interpretation, the five-year retention requirement for these injury and illness logs created five years of potential liability for inaccurate record keeping. In other words, there was a continuing duty to maintain the accuracy of the logs. In Volks, however, the court unanimously disagreed with the Department of Labor and decided that there was no such continuing duty. The court held that no citation may be issued after the expiration of six months following the occurrence of any violation, following the general limitation on citations contained in the U.S. Code under the Occupational Safety and Health Act.
OSHA did not challenge the Volks decision. Instead, OSHA pointed to the concurring opinion of Circuit Judge Merrick Garland, who agreed that OSHA’s interpretation was wrong, but because of a lack of regulatory authority and not necessarily a lack of statutory authority. That distinction was enough for the Department of Labor to adopt the challenged regulations, and Garland’s opinion was quoted extensively in the Federal Register by OSHA in support of its actions. Congress, it appears, will be the ultimate arbiter of that issue.
The creation of a continuing duty arguably makes it easier to prove that record keeping violations were willful. That increases the exposure to penalties. While OSHA's comments in the Federal Register when the regulation was published downplayed the additional obligations of employers in complying with the law, employers and associations expressed concerns about how the “continuing violations” would be managed by employers and enforced by OSHA. These comments suggest that the compliance costs are real and material.
The National Federation of Independent Businesses (NFIB) says the regulation will cost the economy $1.9 billion over five years. OSHA disagreed with that assessment. (Federal Register, Vol. 81, No. 243, p. 91806).
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It is important to remember that if Congress doesn’t act and the president does not sign the resolution, the regulation will be in effect.
The bigger picture of how to deal with a wide range of regulations from the Department of Labor, including OSHA, is a much larger topic. There are certainly controversial regulations that must be reviewed by the new nominee for Secretary of Labor, Alex Acosta, once he is confirmed. For the moment, however, this record-keeping rule is on the path of disapproval, much to the relief of employers across the country.