The Occupational Safety and Health Administration (OSHA) is the federal agency responsible for workplace safety and keeping American workers safe from the danger of serious or fatal on-the-job accidents.
2017 OSHA Accident and Injury Recordkeeping Rule for Employers
Not too long ago, OSHA finalized a new rule for employers to follow in how they keep track of workers who are hurt on the job by injury or illness, and how they can be penalized if they fail to do so. It became federal law on January 18, 2017.
The title of the federal OSHA regulation is, “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.” You can read it as it was published in the Federal Register here.
The January 2017 OSHA recordkeeping rule creates an “ongoing obligation” by employers to make and to keep accurate records of on-the-job employee injury and work-related worker illness. If the company fails to put an injury or illness into its record, then OSHA has five years to check the company records and issue a fine for the omission.
OSHA Rule Passed After 2012 Federal Appeals Case Decision
This is a new OSHA requirement. The regulation was considered important after a federal appellate court decision came down back in 2012. The case is AKM LLC d/b/a Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).
In that court case, the appeals court ruled against penalizing the employer. It found OSHA had a 6-month statute of limitations that blocked OSHA from citing the company (AKM LLC d/b/a Volks Constructors) for recording failures. Specifically, OSHA had fined the company “… for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006.” The court ruled against OSHA because OSHA did not discover the company’s failures within the six months time limit.
So OSHA took steps to fix the loophole identified in the Volks Constructors case. That fix is the rule that became effective in January 2017.
Under the new OSHA “ongoing obligation rule” companies who employ workers must keep and maintain accurate records of all work-related illness and on-the-job injuries of their employees for five (5) years. The rule makes the employers vulnerable for citations for that entire five year time period.
Before this change, companies could only be cited for OSHA violations based upon illnesses and injuries for a six-month time period after the event. The rule takes out that time limitation. The OSHA penalty period is now for the full five (5) years.
OSHA Position: There Should Be Accurate and Full Records of Employee Illnesses and Injuries
OSHA wants employers to keep records of injuries and illnesses suffered by workers on an ongoing basis.
OSHA wants the ability to penalize and fine employers for the full five year time period that overlaps with the time the companies are required to keep those records. Under its new rule, effective January 2017, OSHA has this authority and the penalty period has jumped from six months to five years for employers.
March 2017 Congressional Action to Repeal the 2017 OSHA Recordkeeping Rule
Not everyone agrees with this change. It may be gutted by Congressional action.
Last month, a bill was introduced in the House of Representatives to repeal this new recordkeeping rule from OSHA. On March 1, 2017, it passed the House. Read the House of Representatives’ Resolution of Disapproval here.
Essentially, the House Resolution seeks to end the new OSHA “ongoing obligation rule” or “Volks rule” and it includes language that stops a similar rule from being implemented in the future.
Right now, it’s being considered by the Senate. And over at the White House, President Trump has already announced his agreement with the House’s disapproval. See Statement of Administration Policy, February 28, 2017.
Argument against the OSHA Ongoing Obligation Rule
What’s the argument against this new rule? Employers argue that it is too burdensome on them. It’s too hard to comply with – it impacts their bottom line. And, they add, it doesn’t really do anything to protect employees from getting hurt.
The Administration is committed to reducing regulatory burdens on America’s businesses, and this rule imposes costs on employers resulting from continuing recordkeeping obligations.
For details on the employer’s argument against the OSHA Rule, read the op-ed published on March 20, 2017 in The Hill by Stephen E. Sandherr, CEO of the Associated Contractors of America, entitled “Protecting workers, the constitution and our judicial process.”
OSHA Reporting is Vital to Protecting Workers from Injury and Illness
It should come as a surprise to no one that companies are often found by OSHA to have skipped over (omitted) accidents in their employee records, or failed to document injuries or illnesses that happen on the job.
Sometimes, the employer will document the event, but fudge on what happened or how serious the accident (or exposure, etc.) was for the employee.
OSHA inspections go through the employee logs looking for red flags that company records are inaccurate or fraudulent. They do so to help keep workers safe while working on the job.
If the OSHA inspectors find a violation, the company can be fined. It can cost the employer money to be caught with a bad or flawed injury and illness log.
Or course, injuries and illnesses cost the company, too. Fixing problems that cause accidents and endanger workers can be expensive.
If the OSHA Ongoing Obligation Rule is tossed out by Congress, then the old six month time period is back. That means companies can breathe a sigh of relief if six months goes by without an OSHA inspector showing up to look at their records. OSHA will be too late.
And maybe the company’s liability for wrongdoing escapes notice – until another worker is hurt or killed because of their neglect.
Workers and employees in Indiana and Illinois need to be aware that their job site may pose dangers and threats to their safety and well-being. Anyone hurt on the job needs to know how best to find justice for themselves and their families, including documenting the event and recording what happened to them. Let’s be careful out there!