OSHA Releases Final Rule on Recordkeeping Citations

(PAINT.ORG)On Dec. 16, the U.S. Occupational Safety and Health Administration (OSHA) released a final rule clarifying an employer's continuing obligation to make and maintain accurate injury and illness records. The rule is effective Jan. 18, 2017; however, it could possibly be delayed due to litigation or pressure from the new Administration.

The amendments in the final rule add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.

However, the final rule extends the statute of limitations for which the agency can issue citations for recording, keeping violations to five years and six months, as opposed to just six months that most employers interpreted previously. OSHA maintains that it can cite employers for recordkeeping violations for up to six months after the five-year retention period expires, not just six months after the initial failure to record (first day of occurrence, or injury), without running afoul of the OSH Act's statute of limitations.

The rule is the result of the AKM LLC v. Secretary of Labor (Volks) decision in 2012, a case decided against OSHA. In that case, the U.S. Court of Appeals for the District of Columbia Circuit ruled that OSHA citations for recordkeeping violations must be issued within six months of the first day of an alleged failure to record the injury or illness; a citation issued after the six-month period is barred. OSHA has subsequently issued this proposed rule to go against the DC Circuit ruling. While the agency says this rulemaking will not impose any new reporting obligations, it is critical that employers understand that OSHA is interpreting this duty to maintain accurate records to give OSHA authority to issue citations for a much longer period of time than what many employers, and the D.C. Circuit Court, have interpreted.

During the regulatory process, ACA, along with many others, opposed to this rulemaking. Many of those who oppose believe that the agency is merely trying to increase the number of citations that they are able to issue. ACA and others had urged OSHA to withdraw the proposed regulation because the agency does not have the legal authority to expand the six-month statute of limitations in which it can issue citations for violations of recordkeeping requirements.

Essentially, OSHA argues that because an employer has an ongoing obligation to make and maintain accurate records for a 5-year period, the agency can issue citations at any point during

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the 5-year retention period plus 6 months following (the original statute of limitation requirement) because a failure to maintain accurate illness and injury record is a continuing violation during that period of time. This is important to note because when the final rule goes into effect, OSHA can issue citations for violations of injury and illness recordkeeping requirements that occurred as far back as five and a half years ago.

For more information on the final rule, click here.