Legislation directed at OSHA seldom makes it through Congress or makes national news, so when an OSHA bill is signed into law, it gets attention and generates questions. And so it has been with H.J. Res. 83, the “resolution of disapproval” of OSHA’s so-called Volks rule that passed both houses of Congress in March 2017 and was signed by President Trump. Hopefully the following helps answer some of those questions.

The Congressional Review Act

• H.J. Res 83 was considered and passed under the Congressional Review Act (CRA), which has specific procedures for considering a resolution of disapproval of agency regulations. Prior to this year, the CRA had been used only once, to overturn OSHA’s standard on ergonomics. Thus far, President Trump has signed at least 11 such disapproval resolutions.
• An important part of the CRA is the time frame within which a resolution of disapproval must be considered once a regulation has been adopted. Congress has 60 legislative days from when a final rule is transmitted for review. Based on this, the most controversial OSHA rules during the Obama Administration, such as the silica standard and the electronic injury reporting, are “too old” for review under the CRA.

Impact of the CRA

• OSHA issued the Volks rule in December 2016. The rule was intended to overturn a 2012 Court of Appeals decision, AKM LLC (“Volks”) v. Sec. of Labor, 675 F.3d 752 (D.C. Cir. 2012), which held that the 180-day statute of limitations in section 9(c) of the OSH Act means that a citation for failing to record an injury must be issued within 6 months of when the employer failed to properly record the injury or illness. 
• OSHA’s long-standing policy, which had been upheld by the OSH Review Commission, allowed citing a recordkeeping violation as a “continuing violation” during the 5-year period of time that an employer is required to keep injury and illness records. Thus, a failure to record an injury could be cited at any time within that 5-year period. The Court of Appeals said that the language of the OSH Act was inconsistent with this continuing violation enforcement interpretation. The regulation adopted by OSHA in December 2016 was an attempt to work around the Court of Appeals decision.   
• The passage of H.J. Res. 83 returns the legal situation with regard to recordkeeping to where it was between 2012 and 2016. To the extent that the D.C. Circuit’s decision applies (and though it is just one court of appeals, its weight is greater because any OSHA enforcement case may be appealed to the D.C. Circuit), OSHA cannot cite an employer for failing to record an injury or illness that occurred more than 6 months prior to the date of the citation.
• Employers may be cited for any recordkeeping violations that occurred within 6 months of the citation.  So an employer “seeking to take advantage” of the Court of Appeals decision and passage of H.J. Res. 83 by not recording an injury would be banking on not having an OSHA inspection during the 6-month period.
• The Court of Appeals decision may have had a greater impact on the number of citations issued for recordkeeping than on the number of injury and illness records made. During the rulemaking, OSHA estimated that reversing the court’s decision would increase the number of injury records made annually by 1% to 5% (19,000 to 99,500). However, during congressional debate on H.J. Res 83, supporters of the regulation stated that OSHA recordkeeping citations decreased by 75% after the Court of Appeals decision.
• Passage of H.J. Res. 83 does not impact OSHA’s other recordkeeping and reporting requirements, including the electronic submission of injuries and illnesses records rule that took effect on Jan. 1, 2017. Under that rule, the first electronic reports of Form 300A summaries for covered establishments must be submitted by July 1, 2017. OSHA has not announced any changes to that schedule.

• The Court of Appeals decision however may have broader implications than its effect on injury and illness records. A subsequent decision by the Fifth Circuit, Delek Refining, applied the D.C. Circuit’s reasoning in the Volks case (that a violation of a record making requirement “occurs” for purposes of the 180 statute of limitations when the record is not created initially, not to any continuing obligation to maintain the record) to a requirement in the Process Safety Management (PSM) standard that employers create records of responses to PSM audit findings.

It remains to be seen what impact the courts’ rejection of the continuing violation may have on enforcement of other OSHA documentation requirements, such as those for training, exposure monitoring and medical surveillance. 

Gary L. Visscher, Esq., is Of Counsel at the Law Office of Adele L. Abrams PC. Abrams is the Society's federal representative. Visscher has been a commissioner on the Occupational Safety and Health Review Commission and a member of the U.S. Chemical Safety and Hazard Investigation Board. He was also counsel to the U.S. House of Representatives’ Committee on Education and the Workforce.