Another possible target for action by the incoming Trump administration is a new rule requiring employers to keep workplace safety records for a minimum of five years.
On Dec. 19 the Occupational Safety and Health Administration released its final rule mandating the new recordkeeping period, which is scheduled to go into effect on Jan. 18 – two days before Trump’s presidential inauguration.
The rulemaking is OSHA’s attempt to build a work-a-round to a 2015 D.C. Circuit Court of Appeals decision holding the agency cannot issue citations for recordkeeping violations that are more than six months old.
That court said that the enabling law under which OSHA operates expressly prohibits citations for violation of more than five years.
Under the new rule, OSHA asserts that the employer’s duty to record an injury or illness continues for the full duration of the record retention and access period, which is for five years after the end of the calendar year in which the injury or illness became recordable.
“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,” OSHA asserts.
“The new final rule more clearly states employers’ obligations. “This rule simply returns us to the standard practice of the last 40 years,” says David Michaels, Assistant Secretary of Labor for Occupational Safety and Health and OSHA’s chief.
“It is important to keep in mind that accurate records are not just paperwork; they have a valuable and potentially life-saving purpose,” he adds.
A number of industry groups have objected to the new rule, and it may be challenged. Additionally, Congress may invalidate the rule under the Congressional Review Act, and the incoming administration may delay its enforcement.