OSHA Recordkeeping Rule Dead: Senate Votes. Workers Lose

The Senate just  voted to repeal OSHA’s Volks rule making it impossible for OSHA to enforce its recordkeeping standard.

Workers will pay the price. More injured. More sick. More dead.

It was a straight party line vote. We put up a good fight.  Good work everyone who worked to defeat this.

Way to go Republicans.

NELP statement here.

Other Confined Space posts on Volks Rule here.

Congressional Review Act Deconstructing the Administrative State OSHA Senate Volks Rule

10 Comments

  1. The kicker for me is the continued degradation of injury reporting/recording. As a result hazards will not be properly identified. The hazards that aren’t identified and aren’t corrected will continue to cause injuries and illness.

  2. They love a legal loophole more than anything. Call your income as a CEO “carried dividend” and reduce your tax rate fro 39 to 15 % , A 160% TAX BREAK. Poor people without lobbiests and slick loopholes to use ….are losers, believe me, ask Mitt Romney. Non disclosure agreements that last a little longer than the statute of limitations on sexual assault are a Trump favorite. Believe that. It is not an accident that for every legislative representative there are >10 lobbiests and a huge pack of lawyers with the American Legislative Exchange Council (ALEC) writing the actual legislation that has the specific loophole language (weasal words) built right in. All the reps have to do is accept the cash …ah hem the unlimited free speech of the corporations who are people making uncoordinated re-election contributions.

  3. Mr. Barab: With all due respect sir, this is your fault. While you were Deputy Asst. Secretary of Labor for OSHA (and when the Democrats had majorities in Congress and occupied the White House), you personally had an opportunity to push for amending the OSH Act to change the statute of limitations for when OSHA could issue ANY citation. Section 9(c) clearly lays out OSHA’s statute of limitations for issuing citations and it is unambiguous: “No citation may be issued under this section after the expiration of six months following the occurrence of any violation.” As you also know, the U.S. Court of Appeals for the District of Columbia held that OSHA could not issue citations for paperwork violations beyond the six-month statute of limitations set forth in the OSH Act. All Americans, including your readers, should be deeply troubled by the notion that any agency of the federal government is willing to blatantly disregard its clear and explicit statutory authority.

  4. SafetyMan: Thanks for your comment. A few items:
    1. Just because you’re in the majority doesn’t mean you can change any law at any time (as the Republicans are seeing now). And at that point there was no need to change the statute of limitations because OSHA had been successfully (and legally) enforcing the 5-year continuing recordkeeping obligation for 40 years.
    2. OSHA had interpreted, and until 2012, the courts had upheld OSHA’s ability to consider the entire 5-year retention period as a single requirement that could be cited.
    3. One member of the Court felt that the problem was that we didn’t have a clear regulation explaining the 5-year continuing obligation, which is what the Volks rule set out to correct, with the blessing of DOL’s Solicitors and the Department of Justice.

    1. Item 2: Source on the “courts had upheld” comment? Besides OSHRC, whose decisions the D.C. Circuit overturned.

      Item 3: Why didn’t DOL/OSHA petition the D.C. Circuit for rehearing en banc? Or file a petition for writ of certiorari with the Supreme Court?

  5. I actually see this as a good thing because of the whole limitation on post-accident drug testing. This rule would have made it much more difficult for employers to enforce their drug-free workplace policies.

    1. Actually, you’re thinking of the wrong regulation. This is the Volks Rule that only addressed OSHA’s ability to enforce accurate recordkeeping. The other “Recordkeeping Modernization” regulation that addressed retaliation against workers for reporting injuries only address drug testing in a limited way. It would do nothing to impede legitimate drug testing programs, e.g. for cause or in safety sensitive positions. It only addressed drug testing that was clearly done in retaliation for reporting an injury that was clearly not related to any kind of impairment — like a musculoskeletal disorder or a bee sting.

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