OSHA’s Volks Rule Overturned by Congressional Review Act

Late today, the Senate voted 50-48 to adopt H.J. Res 83, nullifying OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule. The “Volks” rule made recordkeeping requirements a continuing obligation and effectively gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the 5-year retention period, contrary to the six-month statute of limitations.  This final rule was in response to a 2012 U.S. Court of Appeals for the District of Columbia decision that 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 statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Unhappy with the unfavorable ruling, on July 29, 2015 OSHA issued a proposed rule which it finalized in December 2016 and became effective in January 2017.  According to OSHA, the rule was meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”  The final rule was more than merely an attempt to clarify an existing duty, it created a new one by undoing the holding in the Volks case.

The resolution passed the House of Representatives on March 1, 2017 and today the Senate adopted the resolution under the Congressional Review Act, a clear indication that Congress believed OSHA had exceed its authority in issuing the final rule. The resolution will now head to President Donald Trump to sign, who has indicated he will sign the resolution.

House of Representatives Votes to Block OSHA Recordkeeping Rule

The House of Representatives has voted to block a new Occupational Safety and Health Administration recordkeeping rule implemented in the last weeks of the Obama Administration. “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” was published in the Federal Register on December 19, 2016, and became effective on January 18, 2017.

To read the full article, written by Carla Gunnin, click here.

California’s Upcoming Indoor Heat Regulation

In October 2016, Governor Brown signed and approved Senate Bill 1167 which went into effect on January 1, 2017. The law directs Cal/OSHA to draft and propose heat illness and injury prevention standards for indoor workplaces by January 1, 2019. Specifically, the legislation adds Labor Code Section 6720, which states in relevant part:

By January 1, 2019, the division shall propose to the standards board for the board’s review and adoption a standard that minimizes heat-related illness and injury among workers working in indoor places of employment. The standard shall be based on environmental temperatures, work activity levels, and other factors.

Although this law proposes new regulatory activity in this area, it is not new news for California employers. California has an active outdoor workplace heat illness standard since 2006. Moreover, in the past several years Cal/OSHA and other agencies have initiated either training or enforcement to protect workers against indoor heat illness.

In 2012, the Division issued two serious citations and the Appeals Board confirmed the citations to two joint employers for violation of the Injury and Illness Prevention Standard because an employee sustained injuries due to heat illness while working indoors. In its Decision the Appeals Board evaluated several factors including ventilation of the facility, access to water, types of machines and whether they generate heat, whether there is an air condition system, whether the work performed by employees is fast pace, the breaks or recovery periods provided to employees, and whether there is a period of acclimatization provided to employees. National Distribution Center, Cal/OSHA App. 12-R6D2-0391, 12-R6D2-0378, Decision After Reconsideration (Oct. 5, 2015).  The Appeals Board held that it was appropriate for the Division to issue citations to employers for indoor heat illness under the Injury Illness Prevention regulation.

On February 28, 2016, the Division submitted a proposed draft of the language of a new regulation during an advisory meeting. Key take-aways from the Division’s initial thinking include:

  • The regulation would apply to (1) indoor places of employment where the dry bulb temperature exceeds 90 degrees or (2) where employees perform moderate, heavy, or very heavy work and the dry bulb temperature exceeds 80 degrees.
  • The Division would evaluate what type of clothing employees are wearing
  • The Division would evaluate the type of work performed by employees. The Division would critically analyze if employees perform moderate, heavy, or very heavy work to determine whether there is a violation of heat illness.
  • The Division would be more critical of high radiant heat work areas like foundries, brick-firing and ceramic plants, glass factories, vehicle manufacturing plants, rubber manufacturing plants, electrical utility rooms, electric power cogeneration facilities, boiler rooms, industrial scale bakeries, commercial kitchens, industrial scale laundries, food canneries, chemical plants, mining sites, smelters, and steam tunnels.
  • The Division would expect all employers to have a Heat Illness Prevention Plan that specifically identifies Indoor Heat Illness Prevention including procedures to involve employees in developing and implementing the plan, procedures to identify heat hazards, rest and hydration procedures, first-aid and emergency procedures, engineering and administrative control measures used to control indoor heat, and training programs.

Even though the official regulation has not been drafted or implemented, employers are advised to start examining their indoor environments for potential heat stress issues and how their operations may be impacted by an indoor heat stress rule.

Effective Date of Beryllium Rule Delayed Again

Today, OSHA announced a proposed delay in the effective date of its new Beryllium rule. Its second extension request.  The effective date was previously delayed from January 9, 2017 until March 21, 2017.  OSHA is  requesting the effective date be extended for an additional 60-days — until May 20, 2017 — so the new Administration can have additional time to further review questions of law and policy.

Currently, the proposed extension date does not effect the compliance dates of the rule.  Employers must comply with most of the requirements by March 12, 2018.  Employers have an additional year to implement change rooms and showers (March 11, 2019) and an additional two years to implement engineering controls (March 10, 2020).

To learn more about OSHA’s Beryllium rule, visit OSHA’s Beryllium Exposure webpage.

 

All About OSHA

Nearly every time I visit OSHA’s website, which is a daily event for me, I find something new.  It might be a news release on the latest enforcement action, which might tell me what compliance officers are focusing on in certain regions.  It might be new guidance on a recent standard, which might help me counsel employers on their legal obligations and how exactly they implement that new program.  It might be a simple reminder on upcoming employer requirements or deadlines, such as the requirement for employers to post their OSHA 300A  through April.

Today’s find includes a booklet titled,  “All About OSHA”.  It was published sometime in 2016 and includes a description of the agency’s basic structure, mission and enforcement scheme.  If you wanted to learn more about what exactly OSHA does or what your organization’s basis responsibilities are, or maybe, you just want to know which states run their own OSHA programs, then give this guide a quick read.

Signs that OSHA Priorities are Shifting Under the Trump Administration?

There are new developments related to OSHA’s Electronic Recordkeeping Rule and the Volks Rule.  As a reminder, the Electronic Recordkeeping Rule requires certain employers to electronically file their OSHA recordkeeping data with OSHA as well as heightens scrutiny related to both drug testing and safety incentive programs.  The Volks Rule essentially reversed the decision held in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012) (the “Volks Decision”) that limited OSHA’s ability to cite recordkeeping violations to six months.

The Electronic Recordkeeping Rule has been highly controversial.  There are two pending litigations related to the rule currently – one in Texas and one in Oklahoma.  In a recent filing in the Texas case, both OSHA and industry plaintiffs have agreed that the Court should consider last minute motions filed by the Obama Administration to be moot.  The Obama Administration’s motions were asking the Court to find in favor of OSHA on the merits of the drug testing and safety incentive provisions of the rule.  This new filing certainly backs off of the Obama Administration’s defenses to the litigation that were previously raised.  Could this be a sign that the Trump Administration is going to back off of this rule in whole or part in an effort to settle the pending litigations?

The Volks Rule has now come under attack by a member of the House of Representatives.  Rep. Bradley Byrne (R-Ala.), the chairman of the House Education and the Workforce’s Subcommittee on Workforce Protections, introduced resolution (H.J. Res. 83)  on Feb. 21.  Representative Byrne is attempting to use the Congressional Review Act (“CRA”) to revoke the rule that was issued on December 19, 2106 .  The CRA process empowers Congress to review new federal regulations issued by government agencies roughly within 60 days of their issuance (there can be exceptions to this timing).  By passing a joint resolution, Congress can overrule a regulation.  This process was only done successfully once before and that was to overturn an OSHA regulation related to ergonomics in 2000.

Stay tuned to our blog….it’s going to be a very interesting time!

 

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