On April 3, 2017, President Trump signed a Congressional Review Act resolution into law that repeals the Occupational Safety and Health Administration (OSHA)’s “Volks” rule, as it is informally known, which OSHA issued in December 2016 to address employers’ obligation to maintain records of work-related injuries and illnesses and OSHA’s ability to enforce that obligation. The rule was intended to formalize OSHA’s longstanding belief that employers have an obligation to retain records of work-related injuries and illnesses for a period of 5.6 years and that OSHA has the ability to enforce that ongoing obligation by issuing citations. The purposes of the congressional repeal of OSHA’s Volks rule include an intent to reduce the regulatory burden born by small businesses and an effort to prevent OSHA’s attempt to establish its authority to impose a continuing recordkeeping obligation on employers.
SHA’s longstanding interpretation of the authority granted to it by the Occupational Safety and Health Act includes the ability to require employers to maintain records of work-related injuries and illnesses for a period of 5 years. However, the U.S. Court of Appeals for the District of Columbia brought OSHA’s interpretation of its authority into question in 2012 when it held that OSHA did not have the authority to impose a continuing obligation on employers to maintain records of work-related injuries and illnesses beyond the Occupational Safety and Health Act’s 6-month statute of limitations. In response to the 2012 holding, and because OSHA had not previously issued a rule expressly requiring employers to keep records for a fixed period of time, OSHA issued the Volks rule to clarify its longstanding position and, accordingly, more clearly establish its authority to enforce a recordkeeping obligation. The rule became effective in January 2017.
OSHA’s Volk’s rule was seen by some as an effort by OSHA to assert more authority than that granted it by the Occupational Safety and Health Act. A majority of those in Congress agreed and passed the Congressional Review Act resolution that was signed by President Trump to repeal the rule.
U.S. Congress, An Act disapproving 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,” Pub. L. No. 115-21 (April 3, 2017) (enactment of H.R.J. Res. 83, 115th Cong.), https://www.congress.gov/bill/115th-congress/house-joint-resolution/83/text.