United States: Practitioner Insights: Trump Ready To Sign Resolution Voiding OSHAs Recordkeeping Rule

President Donald Trump is expected to soon sign a Congressional resolution revoking one of several Occupational Safety and Health Administration rules vulnerable to the Congressional Review Act. In response to Dr. David Michaels' argument against Trump signing the resolution in an article previously published by Bloomberg BNA, Partner Edwin G. Foulke has written the following, suggesting that OSHA move away from an enforcement-driven model to a compliance assistance model to help improve safety in the workplace.

President Donald Trump is expected to sign a joint resolution under the Congressional Review Act passed by the House on March 1 (H. J. Res. 83) and approved by the Senate on March 22 (S.J. Res. 27), which will block the changes set forth in OSHA's final rule titled "Clarification of Employers' Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness" to its record-keeping standard. By signing this resolution, the president will effectively cancel the Occupational Safety and Health Administration's rule to extend from six months to five years the time period for citing employees for improper entries on record-keeping injury and illness logs.

This saga started back in May 2006 when OSHA began an inspection at the facility of AKM LLC, doing business as Volk's Constructors. As part of this inspection, OSHA reviewed the company's Form 300 Injury and Illness Logs as well as the 300 A Summaries. On Nov. 8, 2006, OSHA issued a set of citations, which alleged over 100 violations of its record-keeping standard. In contesting the citations, the parties limited the issue on review as to whether the citations were untimely filed since most of the alleged violations had occurred almost five years prior to the inspection. The Occupational Safety and Health Review Commission's administrative law judge accepted the agency's position that the statute of limitations did not start to run until OSHA knew or could have known of the violation and upheld the citations. On appeal to the full review commission, OSHA refocused its legal arguments on a continuing violation theory, which was accepted by the commission, which affirmed the administrative law judge's ruling in a 2-1two-to-one decision.

The company appealed the decision to the U.S. Court of Appeals for for the D.C. Circuit, which, in a unanimous three-judge panel decision, reversed the review commission ( AKM LLC vs. Sec'y of Labor , 23 OSHC 1886, 2012 BL 84910, D.C. Cir., 675 F.3d 752, 2012 ). In an unusually strongly worded opinion, the D.C. Circuit rejected OSHA's position that the violations were "continuing" and its long-standing practice of issuing citations for record keeping going back as far as five years. The Fifth Circuit focused on the specific language of the Occupational Safety and Health Act of 1970, which states that "no citation may be issued under this section after the expiration of six months following the occurrence of any violation" (Section 9 (c), 29 U.S.C. Section 658).

In reviewing this language, the court held that there was no ambiguity in the wording of the statute of limitations and found that the cited unrecorded injuries and failure to record violations in the citations were " incidents and events" and that they had all occurred beyond the six-month period of the issuance of the citations. The Fifth Circuit rejected OSHA's continuing violation theory and stated that the court did not believe that "...Congress expressly established a statute of limitation only to implicitly encourage [OSHA] to ignore it." The Fifth Circuit rejected all of OSHA's arguments and vacated the citations.

Since 2012, OSHA has limited its record-keeping citations in conformity to the Volk's decision to only six months from the start of the inspection. While having the legal right to request a full review by the D.C. Circuit or appealing it to the U.S. Supreme Court, OSHA chose neither of those avenues to address this issue. Instead on July 29, 2015, OSHA issued a notice of proposed rulemaking and added its record-keeping standard revisions to its regulatory agenda to address the Volk's decision six-month citation limitation. In its notice of proposed rulemaking, OSHA stated that the proposed rule was meant to "clarify that the duty to make and maintain an accurate record of an injury illness continued for as long as the employer must keep and make available records for the year the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so." OSHA published Dec. 19 its final rule, which it claimed clarified an employer's continuing obligation to make and maintain accurate records of each recordable injury and illness. The final rule became effective on Jan. 18. In its press release on the final rule, OSHA reiterated that it had been its long-standing position that the employer's duty to record an injury illness continue for the full five-year record retention period. Specifically, former Assistant Secretary of Labor for Occupational Safety and Health, David Michaels noted that "this rule simply returns us to the standard practice of the last 40 years."

The issuance of this final rule fell within the time periods for review under the Congressional Review Act. The passage of this joint resolution shows Congress's rejection of OSHA regulatory amendment to its recordkeeping standard. While OSHA attempted to invalidate the Volk's decision through this regulatory change, there are strong arguments that the new regulation would have met the same fate as the old standard in the Volk's decision. Specifically OSHA attempted a regulatory fix to the record-keeping standard by declaring proper maintaining of the records to be an ongoing or continuing duty. However, the Fifth Circuit in its decision did not focus on the record-keeping standard itself, but instead focused on the statutory requirement in the act of issuing citations within six months of the occurrence.

Accepting the approach set forth in the revisions to the record-keeping standard arguably would have allowed OSHA to expand that continuing violation definition to a whole host of other standards thus expanding the congressionally delegated statute of limitations of six months to five years and beyond. Potentially this would have required employers to defend against OSHA citations many years after their occurrence, thus placing them, especially small medium-size employers, at a great disadvantage in defending those claims. It should be noted that while Congress through the CRA will eliminate the continuing duty language in the record-keeping standard, the standard itself will still have the five year record retaining requirements.

Most likely, Michaels and other Obama administration officials will continue to articulate the argument stated in the Dec. 16 press release regarding the importance of keeping accurate records in that they "have... a valuable and potentially life-saving purpose."

While I would agree that the OSHA 300 Logs can provide assistance to employers in identifying potential safety and health issues, obviously records for the last six months will be much more useful in identifying safety and health hazards and issues than the records that were made five years ago. Furthermore, utilizing OSHA record-keeping logs as well as injury and illness rates and DART rates are all lagging indicators which have been shown not to improve a company's safety program.

OSHA needs to move away from its fascination with injury and illness logs and numbers and be more focused on leading indicators in order to assist employers in improving their safety and health program. This is particularly true for small and medium-sized employers who do not have the knowledge and in most cases the resources to have an effective safety and health program or to meet the requirements under the OSHA standards. Moving OSHA away from an enforcement driven model to a more balanced enforcement/compliance assistance model will help particularly those small and medium-size employers to improve their safety programs thus allowing their employees to go home safe and sound each and every night to their family and loved ones. Hopefully the Trump administration will move OSHA back to a more balanced approach and particularly focus on compliance assistance to help small medium-size employers improve their safety and health programs.

This article originally appeared in Bloomberg BNA on April 3, 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.