Farewell to OSHA Rule

Looks like another Obama-era rule is about to bite the dust any day now—this time involving the Occupational Safety and Health Administration.

On Thursday, the Senate voted 50 to 48 (two Republican senators abstained) to eliminate an Obama-administration rule that required companies to retain their records of workplace injuries, illnesses and deaths for five years after an incident occurs. Roughly three weeks before, the House voted 231 to 191 to roll back the regulation. Now, the bill—passed under the Congressional Review Act, which gives Congress the ability to use a simple majority to roll back rules within a 60-legislative-day window—is just waiting for President Trump’s signature. (The president has indicated he would sign it.)

Under the Obama-administration rule, which went into effect in January, OSHA was given the ability to issue citations to employers that failed to track such incidences for five years after they took place. Previously, the statute of limitations was six months.

Senate Labor Committee Chairman Lamar Alexander (R-Tenn.) said the Obama legislation is the result of a policy that “makes no sense, does not help any workers, harms smaller employers most of all, and ultimately is rejected by Congress.”

Meanwhile, Congressman Bradley Byrne ( R-Al.), author of the legislation, issued a statement applauding the Senate’s vote: “We should be focused on practive policies that help improve workplace safety instead of punitive rules that do nothing to make America workers safer,” he said. “We took a major step in the right direction today by restricting OSHA from moving ahead with such a flawed regulation.”

Of course, the bill has its detractors, too.

Prior to the Senate vote, Jordan Barab, a former Deputy Assistant Secretary for OSHA (2009 to 2017) posted an article on the Economic Policy Institute site that was critical of Congress’ efforts to kill the rule. Barab points out in the piece that “without being able to enforce any violation within the five-year period, enforcement of recordkeeping accuracy would be almost impossible.”

Yesterday, I asked Edwin G. Foulke Jr., a former assistant secretary of labor for OSHA and a partner in the Atlanta and Washington offices of Fisher Phillips, to weigh in on the potential impact of the move. As he put it:

“When you look back to the ’80s and ’90s, when we used to get the real large penalties of six figures or [more], many times it involved cases with recordkeeping violations going back a number of years. So [the rollback] is going to limit the number of the large citations you’re going to see from a recordkeeping standpoint.”

Of course, he added, employers are still going to be required to maintain those records. “It’s just that OSHA is not going to be able to go beyond the six-month time frame that’s in the act itself.”

As for what other OSHA rules might be in the sights of the Trump administration, Foulke pointed to electronic filing. For now, he said, OSHA is moving forward because no one has told it not to. But once a new Secretary of Labor is confirmed, he added, that could change.