OSHA Rule Clarifies Recordkeeping Obligation

Filed in Labor, Safety and Health by on December 20, 2016 1 Comment

The Occupational Safety and Health Administration (OSHA) on Monday issued a final rule that clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness. The final rule becomes effective Jan. 18, 2017.

NAHB has vigorously opposed this rule (see comments), as the revised regulation could have a substantial impact on the home building industry.

OSHA’s longstanding position has been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. In 2012, the D.C. Circuit Court decided in AKM LLC v. Secretary of Labor (Volks) to reject OSHA’s position on the continuing nature of its prior recordkeeping regulations.

Per OSHA, the new final rule more clearly states employers’ obligations. It does not add any new compliance obligations, nor does it require employers to make records of any injuries or illnesses for which records are not already required.

However, the Recordkeeping Clarification Notice of Proposed Rulemaking (NRPM) runs contrary to the Occupational Safety and Health Act of 1970, and therefore should be withdrawn. OSHA does not have the statutory authority to promote or enforce a regulation that changes a clear statutory mandate.

The agency had an opportunity to solidify its position through the judicial branch by appealing the Volks decision, but chose not to do so. Absent a legislative fix by Congress, OSHA cannot ignore the judicial decision which found its position without merit and “simply implausible.”

For these reasons, NAHB urges OSHA to reconsider its position, and withdraw the Recordkeeping Clarification NPRM immediately. For additional information, contact Felicia Watson at 800-368-5242 x8229.

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