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OSHA to Publish Proposed Rule on Recordkeeping Obligations

OSHA‬ will be publishing its proposed rule on 'Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness' in tomorrow's federal register. This rulemaking stems from the 2012 "Volks Case" regarding the 6mo statute of limitations on Recordkeeping violations. (I'll post reference links as well in the comments). If finalized this rule would make it a 5 year "lookback" for the OSHA 300/300A/301 instead of the 6 months as decided by the DC Circuit Court.

It should not be a surprise if multiple large trade associations file legal challenges. It's hard to see how this rule will stick as a final rule. This rulemaking was initiated after the Agency lost an enforcement case (Volks case) during contest. OSHA is over-relying on the recent Perez vs Mortgage Bankers Association.

This proposed rule is likely more about this case (Delek Refining) than it is about anything else. Will be interesting to see how this plays out. There are subtle, but very important, distinctions between the two cases which is why they were decided in different way by 'the courts'. Personally, I don't see how they will be able to "regulate" something that requires Congressional action (statute of limitations).

PROPOSED RULE SUMMARY: OSHA is proposing to amend its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so. The proposed amendments consist of revisions to the titles of some existing sections and subparts, and changes to the text of some existing provisions. The proposed amendments add no new compliance obligations; the proposal would not require employers to make records of any injuries or illnesses for which records are not currently required to be made.

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