Expanded 5-Year OSHA Citation Period Reduced to 6 Months

Originally published by: Society for Human Resource ManagementApril 5, 2017

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President Donald Trump signed a resolution that revokes an Obama-era Occupational Safety and Health Administration (OSHA) rule critics said was unlawful and would not have improved workplace safety.

The so-called “Volks Rule” effectively extended OSHA's authority to issue citations for record-keeping violations from six months to five years. The final rule was published in December 2016 and took effect in January. However, Congress moved swiftly to block it, with both chambers approving the resolution in March.

Although the agency still requires employers to keep their injury logs for five years, the Occupational Safety and Health Act (OSH Act) says citations can only be issued for six months following a violation.

Since injuries must be recorded no later than seven days after they happen, businesses have argued that employers could only be cited for failing to record injuries that occurred six months and seven days prior.

OSHA said its new rule was meant to clarify that employers have a continued duty to maintain accurate logs for the entire five-year record-keeping period.

But the agency's rule contradicted a federal appeals court decision in 2012 that sided with the employer and confirmed that OSHA's authority to issue citations for record-keeping violations was limited to six months under the OSH Act (AKM LLC D/B/A Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)).

Midnight Rulemaking

Rep. Bradley Byrne, R-Ala., challenged the Volks rule under the Congressional Review Act, which can be used to quash "midnight rules" put through at the end of an outgoing president's term.

"The role of the executive branch is to enforce the laws—not rewrite them," Byrne said in a press statement. "This OSHA power grab was completely unlawful. It would have done nothing to improve workplace safety while creating significant regulatory confusion for small businesses."

This resolution doesn't affect the electronic record-keeping rule and its anti-retaliation provisions.

 

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