Congress Hits Back At OSHA

Earlier this month you may have heard about OSHA getting beat up by Congress over the Volks Rule. There was a lot made about this in the political press over the past couple weeks and while many are fist pumping “hell yeah” they have no idea what actually happened. The issue is somewhat tedious but typifies the perceived abuse of authority many businesses saw under the previous administration.

To understand what happened and what didn’t happen earlier in the month we need to understand a little about a process (the reason for this article). OSHA derives its authority from the Occupational Safety and Health Act. The ACT (or law) is what established and grew OSH Administration (government agency). OSHA, under its authority can make rules to implement the law. They issue citations for violations of the law and rules (have the effect of law). If a cited company contests the citations, there are several steps in the process to get to an administrative law judge…then possibly an actual federal appeals court.

In the Volks decision, the Court told OSHA it didn’t have the authority to cite a company for failing to record an injury on the OSHA 300 form more than 6 months after the time it should have recorded it. The court said there’s a six month statue of limitations under the OSH Act (I’m leaving a lot of the minute details out). In response, OSHA promulgated a RULE to allow for this specifically in the OSHA 300 form. OSHA was, by rule, deliberately changing a LAW that Congress had passed.

Congress took offense to that and for only the second time since its inception, used the Congressional Review Act to overturn a rule put out by a federal agency. That action overturned the Volks rule and reestablished the six month statute of limitations for the OSHA 300 form.

So what does this mean for us. Not much really at this point. Very few gins have been cited for improperly recording an injury. The rule is still in place that the forms must be filled out and kept for 5 years so that hasn’t changed. Nothing that gins get cited for really changed so we still need to do exactly what we have been doing. BUT with that said, we can expect OSHA to be a LOT more careful when making new rules. It also means other agencies may want to be a bit more careful when putting out new rules as well since Congress has shown the will to overturn them if necessary.

Now lets talk about electronic reporting of the OSHA 300 data. NOTHING HAS CHANGED yet. Currently many employers (including gins) must report their OSHA 300 summary data electronically by July, 2017. We were expecting the method to report to be out by the end of February but with the new administration and the lack of a Labor Secretary to date, no reporting site has been established and no instructions on how to report have been released. For now, assume that we will need to report the OSHA 300 summary data by July.

We just wanted to set the record straight. The Congressional Review Act vote of disapproval of the Volks rule has nothing to do with the electronic reporting of injury data. They both deal with the OSHA 300 log of injuries and illnesses but are separate rules. The vote on Volks will have an effect by curtailing the expansion of government by way of agencies passing rules where they couldn’t get a law passed.

We certainly live in interesting times. President Trump has shown no fear of stopping rules by executive order such as WOTUS and the Clean Power Plan. These will likely face court challenges of their own. The President has also said that in order to pass a new rule, two must be repealed. We shall see how that works out. Interesting times indeed.