OSHA’s Volks Rule Nullified

Legislation | March 23, 2017 | by Jennifer Hilliard

President Trump on April 3, 2017 signed a measure approved by both houses of Congress to nullify a controversial rule issued by the Occupational Safety and Health Administration (OSHA) that allowed the agency to issue citations to employers for failing to record work-related injuries and illnesses going back five (5) years, contrary to a six-month statute of limitations.

The measure was passed pursuant to the Congressional Review Act (CRA). The CRA is designed to allow Congress to overturn agency rules adopted in the previous 60 legislative days, meaning the legislature can review Obama administration regulations submitted to Congress as far back as mid-June 2016.

OSHA issued the Volks rule in December, 2016. It had an effective date of January 18, 2017. OSHA issued the rule in response to a 2012 decision by the U.S. Court of Appeals for the District of Columbia (AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012)), which held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the Occupational Safety and Health statute. The rule contravened the court’s decision in Volks and provided that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years, subjecting them to citations for failing to do so even if the failure was inadvertent.

Despite nullification of the rule, employers are still required to maintain injury and illness records going back five (5) years so that if the employer receives new or additional information affecting recordability of an injury or illnesses, they should update their OSHA 300 Logs accordingly.  The nullification merely affects OSHA's ability to issue a citation following expiration of the six-month statute of limitations.