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Congressman Bobby Scott

Representing the 3rd District of Virginia

DISAPPROVING THE RULE SUBMITTED 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''

March 1, 2017
Floor Statements

Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to H.J. Res. 83, the Congressional Review Act resolution of disapproval that will undermine workplace safety and health. It does so by overturning a clarifying rule issued by OSHA on December 9, 2016, to ensure accurate occupational injury and illness reporting.

   Now, first of all, it is strange that we are reversing a rule through the Congressional Review Act that creates no new compliance or reporting obligation, imposes no new costs. It simply gives OSHA the tools to enforce an employer's continuing obligation to record injuries and illnesses.

   Spurred by the court of appeals decision, which blocked OSHA from citing continuing violations outside the 6-month statute of limitations, OSHA updated its recordkeeping rule. This new rule makes it clear that employers have a continuing obligation to record serious injuries and illnesses on an OSHA Log if they failed to comply with the requirement to record the injury at the time the injury or illness occurred.

   Since the enactment of OSHA in 1970, accurate data on workplace injuries and illnesses has been recognized as an important tool for protecting worker safety and health.

   Since 1972, employers in higher hazard industries have been required to record the occurrence of each serious occupational injury or illness within 7 days on a ``Log of Work-Related Injuries and Illnesses.''

   An annual summary of this law must be posted for 3 months starting in February of each year in a conspicuous place where employees' frequent records must be kept for 5 years.

   While most employers faithfully comply with OSHA's rules, there are a number of well-documented incentives for employers to underreport workplace injuries. These incentives include lower workers' compensation rates, more favorable treatment in public contracting, and a lower chance of having a future OSHA inspection.

   Underreporting means that workplace hazards are masked, making it less likely that employers or employees become aware of patterns that would indicate the need to take corrective actions to prevent future injuries. If injuries and illnesses are not on the log, OSHA may overlook hazards at a worksite during an inspection and consequently leaving workers exposed to correctable dangers.

   Mr. Speaker, because of underfunding, OSHA only has sufficient resources to inspect a workplace once every 140 years on average. So the likelihood that they might show up in the next 6 months is obviously remote. To be effective, OSHA must have reliable injury and illness data to target its scarce resources towards work sites where employees are facing the greatest dangers. Understated injury rates may mean that OSHA will bypass work sites that need to be inspected.

   Without reliable recordable injury rates, private contractors and public sector officials will not be able to make sufficiently informed decisions when assessing the safety records of prospective contractors and subcontractors.

   Mr. Speaker, OSHA's practice for the last 40 years and the decisions of the bipartisan and independent OSHA Review Commission have upheld the principle that every day an employer fails to record an injury was a continuing violation for the purpose of calculating time limits under OSHA's statute of limitations. That is not totally open-ended but limited to the 5-year requirement that employers are required to maintain these injury records.

   In spite of this 40-year precedent, a 2012 D.C. Court of Appeals decision known as Volks Constructors upended the 40-year precedent when it held that OSHA did not have the authority to issue a citation for an occurrence of a violation that extended beyond the 6-month statute of limitations as set forth in OSHA. The court noted that OSHA's previous regulation provided for no specific articulated continuing obligation to record injuries beyond 7 days.

   There was a concurrent opinion in the Volks decision which made it clear that a regulation, which expressly provides for an employer's continuing obligation, would be lawful.

   Now, when you talk about what the court decided and what Mr. Garland wrote, that was on the previous regulation, not on this one.

   Informed by the guidance of the court, OSHA has issued a new rule which does make it clear that an employer's duty to maintain an accurate record of workplace injuries and illnesses is, in fact, an ongoing obligation.

   So let's be clear, eliminating this rule means that employers who want to underreport injuries will face no sanctions if the injuries go back more than 6 months. Rolling back this rule essentially creates a vast safe harbor for noncompliance and creates the perverse incentive for underreporting.

   The premise behind the resolution today is that it is unlawful. If that is the case, Congress should repeal the regulation. But no court has reviewed this new rule, only the predecessor. There has been no appeal of the new rule that has been lodged since the new rule was issued in December.

   The proper course of action is to have the courts decide the legal question since arguably they are in the best position to interpret the laws and evaluate the precedents. This especially makes sense since one of the concurring opinions in the Volks case identified abundant legal precedent for tolling the statute of limitations when there are continuing violations in other laws that are nearly identical to the reporting requirements in OSHA. These include the Consumer Credit Reporting Act and the Sex Offender Registration and Notification Act.

   On the other hand, if the purpose of passing this resolution is just to eliminate the possibility of OSHA's clarifying rule could ever be found lawful, then it is obvious that H.J. Res. 83 is an ideological attack without any regard for consequences to worker safety.

   On the other hand, if there is a bona fide view that OSHA lacks the adequate legal basis for the rule, then the constructive solution would be to amend OSHA and provide for the clarifying statutory authority. We should not be repealing the rule because we know what happens when this deterrent is eliminated. After OSHA lost its authority to enforce the violations outside the 6-month window under the Volks decision, there was a 75 percent reduction in the number of citations issued for underreporting, and that is according to OSHA data.

   So, Mr. Speaker, there has been no hearing held on this final rule or this resolution. There has been no assessment of the consequences of underreporting of injuries which will occur if this resolution is adopted, and there has been no evaluation of any alternative way to ensure accountability for employers who flout the law. There has just been a headlong rush to push this resolution to the floor just a few days after its filing.

   So given the complete lack of deliberation regarding this new rule, this Congressional Review Act resolution is premature, at best, but it will definitely have regrettable consequences to the health and safety of the people that we are charged to protect.

   Mr. Speaker, I urge a ``no'' vote.