March 3, 2017

Cassidy, Hatch, Isakson, Daines Challenge OSHA’s Power Grab

WASHINGTON—Yesterday, US Senators Bill Cassidy, MD (R-LA), Orrin Hatch (R-UT), Johnny Isakson (R-GA) and Steve Daines (R-MT) introduced a Senate Joint Resolution disapproving the rule issued by the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” under the Congressional Review Act (CRA). The House companion, H.J. Res. 83, passed earlier this week (231-191).

“The Obama administration routinely used executive authority to disregard judicial oversite. This Joint Resolution will ensure that our government faithfully follows the letter and spirit of the law,” said Dr. Cassidy. “This Louisiana company was right to challenge OSHA’s unlawful power grab. Now Congress must step in to enforce the court’s ruling.”

“This rule is executive overreach at its worst. Instead of facilitating workplace safety and employee health, OSHA’s regulation simply burdens even small businesses with onerous paperwork requirements, illegitimately subjecting them to serious penalties outside of the statute of limitations specified by Congress. I strongly urge my colleagues to join us in the fight to repeal it,” said Hatch.


Under the Obama administration, the Department of Labor circumvented Congress to issue this unfair, burdensome rule subjecting businesses to increased citations for paperwork violations, while doing nothing for worker safety,” said Isakson. “I’m joining efforts to roll back this onerous Obama regulation that does nothing to promote safety and health in the workplace.”


“Small businesses should be focused on growing their businesses not complying with over burdensome federal regulations,” Daines stated. “By eliminating another Obama administration power grab, we can return control back to the people.”




Under the Occupational Safety and Health Act, certain employers are required to record injuries and illnesses that occur at work and maintain those records for five years. Under the law, the Occupational Safety and Health Administration (OSHA) can issue citations for six months after a recordkeeping violation occurs. 


However, it was a long standing practice of OSHA (based on their interpretation of law) that it should be able to issue citations for the entire five-year period for which it believed employers must keep injury and illness records. The Occupational Safety and Health Review Commission (OSHRC) allowed OSHA to continue the practice by agreeing that citations can cover cases for which the recordkeeping obligation arose any time during the five-year record retention period.


Volks Constructors, located in Prairieville, LA, challenged OSHA in the DC Circuit Court of Appeals for recordkeeping violations that occurred beyond the six month statute of limitations. The Court agreed with Volks with a three judge unanimous opinion, including the opinion of Merrick Garland, stating that the law is clear and unambiguous in the six month statute of limitations for issuing citations.


To negate the court ruling, and allow OSHA to continue issuing citations beyond the six month limitation in the law, OSHA promulgated the rule, “Clarification of an Employers Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.” This effectively extended the statute of limitations on violations to five years. The rule was finalized on December 16, 2016 (RIN 1218-AC84).


Senators Cassidy, Hatch, Isakson and Daines’s joint resolution will halt the rule and allow Congress an opportunity to review any changes to the law.


Congressional Review Act


The 1996 Congressional Review Act (CRA) requires agencies to submit regulations to Congress and the Government Accountability Office for review. Regulations can be blocked by a joint resolution of disapproval that the Senate can consider under special expedited procedures and pass with a simple majority. If a rule is overturned, an agency cannot take a similar action unless Congress passed another law allowing it. Both chambers must pass such a measure, which has to be introduced within 60 legislative days of the regulatory action and can be signed or vetoed by the president.