OSHA Publishes Rule Removing Recordkeeping Requirements for Work-Related Injuries and Illnesses from CFR

On May 3, 2017, the Occupational Safety and Health Administration (OSHA) published a rule formally removing its regulation clarifying employers’ obligation to maintain records of work-related injuries and illnesses and OSHA’s ability to enforce that obligation – informally known as the Volks Rule – from the Code of Federal Regulations (CFR). The Volks Rule formalized 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 removal of the Volks Rule from the CFR is the result of the Congressional Review Act resolution signed by President Trump on April 3, 2017 that repealed the Rule, which had just became effective in January 2017.

OSHA’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 in December 2016 to clarify its longstanding position and, accordingly, more clearly establish its authority to enforce a recordkeeping obligation.

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 then signed into law on April 3, 2017 by President Trump to repeal OSHA’s Volks rule. The purposes of the congressional repeal included 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. Now, as a result of the final rule published by OSHA on May 3, the Volks Rule is no longer contained within the CFR.

Source: Clarification of Employer’s Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness, Occupational Health and Safety Administration (OSHA), 82 Fed. Reg. 20548 (May 3, 2017), https://www.federalregister.gov/documents/2017/05/03/2017-08754/clarification-of-employers-continuing-obligation-to-make-and-maintain-an-accurate-record-of-each.