OSHA Statute of Limitations for Recordkeeping Violations Rolled Back by Congress
Author: Michael Cardman, XpertHR Legal Editor
March 28, 2017
UPDATE - April 3, 2017: President Trump has signed the resolution.
A new rule that effectively extends from six months to five years the statute of limitations during which the federal government may issue citations for recordkeeping violations of the Occupational Safety and Health Act (OSH Act) is expected to be overturned.
Both chambers of Congress have passed a resolution overturning the rule, which is commonly known as the "Volks rule." If President Trump signs the resolution as expected, the US Occupational Safety and Health Administration (OSHA) will be prevented from implementing the rule and from issuing a similar rule in the future without congressional approval.
The OSH Act requires employers to keep certain records of work-related injuries and illnesses for five years following the end of the calendar year that they cover.
The law also includes a statute of limitations that prevents OSHA from issuing citations six months after the "occurrence of any violation."
OSHA has long maintained that it may cite employers for recordkeeping violations for up to six months after the five-year retention period expires without violating the statute of limitations. But in 2012, the United States Circuit Court of Appeals for the District of Columbia Circuit held in AKM LLC v. Sec'y of Labor that the OSH Act does not allow OSHA to impose a continuing recordkeeping obligation on employers.
In response, OSHA issued its rule late last year. It took effect January 18, 2017. A bit more than a month later, Rep. Bradley Byrne, R-Ala, introduced the resolution to overturn the rule.
"With this rule, OSHA rewrote federal law while doing nothing to improve worker health and safety," Byrne said in a statement. "Congress must reject this unlawful power grab and encourage the agency to adopt the responsible, proactive safety approach that America's workers deserve."