In the waning days of the Obama administration, OSHA issued a recordkeeping rule. (The rule appeared in the federal register in December 2016.) The rule was intended to “clarify that the duty to make and maintain an accurate record of an injury or illness” required an employer to “keep and make available records for the year in which 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.”
The rule made OSHA injury or illness recordkeeping an employer’s continuing obligation for a five-year period. The rule would have enabled OSHA to assess penalties from the very beginning of the recordkeeping obligation for five years or until the employer complied, whichever happened first. All employers, including funeral homes that are considered partially exempt (NAICS Code 8122 – death care services do not need to make injury or illness reports) from this kind of recordkeeping, nevertheless must report to OSHA any workplace incident that results in a fatality, in-patient hospitalization, amputation, or loss of an eye (see 29 CFR §1904.39). The rule was intended to reverse a District of Columbia Court of Appeals decision that held that OSHA could cite employers for recordkeeping violations for a maximum of six months and no more.
On March 23, 2017, the Senate voted 50 to 48 to adopt House Joint Resolution 83, to overturn the recordkeeping rule. On March 27, 2017, the resolution was presented to the President. Once the President signs the resolution, the rule will be rescinded and the six-month period will be reinstated.
The basis for Congressional action here is the Congressional Review Act, part of the Contract with American Advancement Act of 1996. The Review Act empowers Congress to review new federal regulations by an expedited legislative process and by a joint resolution overrule the regulation. The Contract with American, based upon President Ronald Reagan’s 1985 State of the Union address, was issued by the Republican Party during the 1994 Congressional election campaign stating those actions that the Republican Party would take if they became the majority party in the House.
Although the impact of this action is not a momentous one for funeral directors, it certainly is a harbinger of OSHA-related change to come. Stay tuned.