Congress Moving Bill to Repeal 2016 Recordkeeping Rule

The hearing is scheduled to start at 5 p.m. Eastern time Feb. 27 and will concern H.J. Res 83 to disapprove the OSHA rule and also H.R. 998, called the SCRUB Act.

A hearing on Feb. 27 on a resolution to repeal OSHA's December 2016 final rule clarifying employers' continuing obligation to make and maintain an accurate record of each recordable injury and illness is expected to move that resolution forward, setting the stage for repeal through the Congressional Review Act. The final rule became effective Jan. 18, 2017, and was called an "unlawful power grab" by congressional opponents including U.S. Rep. Bradley Byrne, R-Ala., who chairs the Education and the Workforce Committee's Subcommittee on Workforce Protections.

Byrne introduced the resolution of disapproval, H.J. Res 83, under the Congressional Review Act earlier this month, saying it's needed to preventing the OSHA rule from taking effect and will encourage a more proactive approach to worker health and safety policies. "Every worker deserves safe and healthy working conditions, and bad actors who put hard-working men and women in harm's way must be held accountable," he said. "That's why Republicans have consistently called on OSHA to improve its enforcement efforts and collaborate with employers to address gaps in safety. Unfortunately, the Obama administration consistently doubled down on failed, punitive policies that do more to tie small businesses in red tape than protect workers. With this rule, OSHA rewrote federal law while doing nothing to improve worker health and safety. Congress must reject this unlawful power grab and encourage the agency to adopt the responsible, proactive safety approach that America's workers deserve."

The hearing is scheduled to start at 5 p.m. Eastern time and will concern H.J. Res 83 to disapprove the OSHA rule and also H.R. 998, called the SCRUB Act. Its full title is the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act, and it would establish the Retrospective Regulatory Review Commission "to review rules and sets of rules in accordance with specified criteria to determine if a rule or set of rules should be repealed to eliminate or reduce the costs of regulation to the economy." The commission would have nine members appointed by the president and confirmed by the U.S. Senate.

OSHA issued the rule to clarify that, in its view, an employer has a duty to record an injury or illness that continues for the full five-year record retention period. OSHA had lost a case in April 2012 before the U.S. Court of Appeals for the District of Columbia Circuit, a case known as the Volks case, that rejected OSHA's position on the continuing nature of its prior recordkeeping regulations. The court held that OSHA must cite an employer for failing to record an injury or illness within six months of the first day on which the regulations require the recording. However, OSHA's position was that recordkeeping violations are continuing violations—an employer's duty to record an injury or illness continues for as long as the employer must retain the OSHA 300 log and 301 report of that injury or illness, which is five years after the end of the calendar year in which the injury or illness became recordable.

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