Earlier this month, the Department of Labor’s Advisory Committee on Construction Safety and Health (ACCSH) heard a presentation from the Occupational Safety and Health Administration (OSHA) on employers’ continuing obligation to make and maintain accurate records of workplace injuries and illnesses.
OSHA has said that “the duty to record an injury or illness … does not expire just because the employer fails to create the necessary records when first required to do so.” In other words, being fined by OSHA for violating a record-keeping rule does not absolve the employer of its ongoing responsibility to keep up-to-date records. Employers that continue to fail to keep the legally required records continue to be subject to fines.
This should be a matter of common sense – arguing the contrary is like saying a driver pulled over on the highway and fined for speeding should no longer be required to obey speed limits.
But this commonsense obligation to keep accurate records (and obey the law) apparently is not enough for some employers. That’s why OSHA is planning to issue a Notice of Proposed Rulemaking by the end of the year seeking to amend its record-keeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.
The rulemaking is necessary because in 2012 a panel at the D.C. Circuit court disagreed with OSHA’s 40 years of practice and rejected the agency’s argument that a failure to record an injury or illness is a continuing violation.
Corporate America would like to continue the current limited rule interpretation and it would not be far-fetched to guess that the U.S. Chamber of Commerce agrees with the D.C. Circuit decision.
During the recent ACCSH meeting, representatives from the Chamber of Commerce, the law offices of Jackson and Lewis P.C. and the law offices of McDermott Will & Emery could be seen expressing their disdain for OSHA’s proposal to modernize the record-keeping rule. And, earlier this year, OSHA was met with strong Big Business opposition on a different proposed record-keeping rule change. So there is no reason to think that this new proposal will be treated any differently by the Chamber once it is entered into the Federal Register.
Keith Wrightson is the workplace safety expert for Public Citizen’s Congress Watch. Keep up with Public Citizen’s workplace health and safety work by following @SafeWorkers on Twitter