OSHA’s Volks Rule: No Additional Burden

By Peter Fox, Counselor to the Solicitor, US Department of Labor, 2016-2017.

Before voting as early as this week on a “resolution of disapproval” under the Congressional Review Act that could lead to repeal of OSHA’s so-called Volks Rule, senators should fully understand what the Rule does and why it was promulgated.

The Rule is return to the status quo. For decades before 2012, OSHA – sensibly – regarded the injury recordkeeping obligations imposed on some employers by the OSH Act and related regulations as continuous. Just as covered employers were required to properly document certain injuries within seven days of the injuries’ occurrence, so too these employers were obligated to accurately record the injuries weeks or months after the accident, if they failed to do so beforehand. The logic behind this position is straightforward. Failure to perform a legally required act is as much a violation the day after the obligation arises as it is the day it does. Your unfiled federal income tax returns are no less overdue on April 17 as they were on April 16.

The 2012 decision by a panel of D.C. Circuit Court of Appeals, Volks Constructors v. Secretary of Labor, changed all this. Although the bases for their decisions differed, the panel’s three judges agreed that the obligation created by OSHA’s injury recordkeeping regulation was discrete, as opposed to ongoing, and thus – counterintuitive as it may seem – a covered employer’s duty to accurately record an injury expired the day after it arose. This meant that, while it was a violation for an employer to fail to document an injury within seven days of an accident, it was not a violation for that employer to continue to fail to do so on day nine, day 10, and so forth. The decision also meant that, for enforcement purposes, the OSH Act’s six-month statute of limitations would begin to run the eighth day after the occurrence of the injury – i.e. after the first (and only) day the employer was in violation of the regulation.

One of the members of the Volks panel, Judge Merrick Garland, concluded that the problem was with wording of the existing OSHA injury recordkeeping regulation and essentially invited the agency to amend the rule to clarify that the obligation to properly document injuries is an ongoing one. The Volks Rule does just that, making express what was always implied and long OSHA’s practice: that a violation of OSHA’s injury recordkeeping requirements is continuous – and therefor citable – for as long as the employer fails to document the injury and is otherwise required to keep such records.

Critics of the Volks Rule thus miss the mark to the extent they contend that the Rule imposes any new burdens on covered employers. And they mislead, when they falsely claim, as one did recently, that the Volks rule somehow attempts to change the OSH Act’s statute of limitations. On the contrary, the Volks Rule the merely restores OSHA’s ability to enforce longstanding recordkeeping obligations to what it was before the Volks decision.