The United States House of Representatives has voted to repeal – to rein in - a new Fed-OSHA rule on injury and illness recordkeeping. It is a certainty that Senate will follow suit and that President Donald Trump will sign it. But what does this mean for Cal/OSHA and, more importantly, California employers? Congress is busy repealing a range of regulations from the last days of the prior administration. Mostly this is welcome news to businesses all over the country.
The OSHA rule in question became effective this January. It requires employers to maintain records of recordable injuries and illnesses for five years. The Feds could use those five years to cite an employer for even minor record-keeping violations, such as failing to include the title of the person signing the employer's OSHA 300 log.
Fed-OSHA under the Obama administration adopted the rule out what it called concern that companies were hiding injuries and illness. Republicans call the regulation a “power grab” by the agency. But there was a challenge to the regs. In that case, Secretary of Labor v. AKM LLC, dba Volks Contractors, the U.S. Court of Appeal for the District of Columbia overturned a decision of the Occupational Safety and Health Review Commission (the federal version of California’s Appeals Board). It held that Fed-OSHA has no more than six months to cite an employer for record-keeping violations.
Under Obama, Fed-OSHA then responded to the decision by creating regulations that give the agency five years to cite. That’s what Congress is overturning.
Cal/OSHA Chief Juliann Sum announced in February that the Department of Industrial Relations was working on a regulation to adopt the federal changes on the electronic submission of Log 300 records. It's less clear what will happen here in California over the so-called “Volks” decision, the subsequent Fed-OSHA regulations, and the Congressional repeal of same.
Cal/OSHA policy mandates a six-month limit for citing record-keeping violations – with a longer leash if approved by the Division of Occupational Safety and Health Legal Unit. Cal/OSHA still requires employers to maintain their injury and illness records for five years. Meanwhile, though, DOSH says it has no plans to adopt the federal “Volks” rule.
In other words, stay tuned. How this plays out for California employers is unpredictable given the current nature of the legislature and regulators. One thing is certain, and that is that interested California businesses should get involved sooner rather than later.