OSHA Updates: Recordkeeping Rule Delayed; VEVRAA Benchmark; Revocation of Interpretation Letter

REVOKED: Interpretation Letter Re: Union Walk-Around Representatives Rescinded

Effective April 27, 2017, OSHA has removed a 2013 interpretation letter from its Field Operations Manual.  The letter expanded upon a prior OSHA interpretation of a specific regulation that permitted a third-party individual to accompany an OSHA compliance officer during a walk-around inspection.  Specifically, the interpretation letter expanded the definition of a “third party” individual to allow a union-affiliated non-employee to act as the walk-around representative during inspection of non-union worksites.

The letter was challenged in a U.S. District Court.  Since the interpretation expanded upon previous guidance, the court indicated that the contents of the interpretation letter should have gone through the normal rulemaking steps of public notice and open commentary, rather than being published and enforced as a guidance letter.

The letter has since been moved to archive.

NEW: 2017 VEVRAA Benchmark Announced

 The Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) is designed to provide Vietnam veterans assistance in returning to the workforce by requiring federal contractors and subcontractors to meet a hiring benchmark, among other regulations.  Each year, OSHA updates it Annual VEVRAA Benchmark Effective Dates page, which indicates the annual national percentage of veterans in the civilian workforce.  Federal contractors and subcontractors must either adopt this benchmark or develop their own individualized benchmark.

Effective May 31, 2017, the new benchmark for March 4, 2016 through March 30, 2017 is 6.7%, down 0.2% from the previous year period.

DELAYED: Electronic Recordkeeping Rule

The filing deadline prescribed by the Electronic Recordkeeping Rule (the “Rule”), originally slated for July 1, 2017, has been indefinitely delayed.  If implemented, the Rule would have required employers to report their OSHA 300, 300A and 301 data online.  OSHA would then have the ability to publicly post redacted injury and illness data, with the end goal being to increase awareness of recurring types of injury and illness by industry.  Importantly, the Rule also included a provision that limited automatic post-accident drug testing.

OSHA has not yet published any additional information about if or when electronic submission is still required.  The Rule could potentially be revised in light of two ongoing lawsuits focused on challenging the public disclosure of injury and illness data.

Until a final decision is made as to the fate of the Rule, employers should still maintain their 300, 300A and 301 logs and be prepared to comply in the event a new electronic filing deadline is announced. Moreover, best practice is still to review accidents for possible follow-up drug testing on a case-by-case basis to be consistent with existing regulations, notwithstanding the delay of this Rule.

 Action Items

1. Applicable employers should continue to maintain 300, 300A and 301 logs, and be prepared to comply in the event a new electronic filing deadline is announced.
2. Federal contractors and subcontractors should review the 2016 VEVRAA Benchmark and adjust diversity hiring practices, if needed.
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.