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OSHA Will Not Be Stopped: OSHA’s “Clarification” to Extend the Statute of Limitations on Recordkeeping Violations

Labor & Employment Law Alert Fred Gants, Kerry M. Mohan

On July 29, 2015, OSHA announced a proposed "clarification" to its recordkeeping regulations to permit OSHA to issue citations for recordkeeping violations more than six months old1 (80 Fed. Reg. 45116 ]July 29, 2015]).

As many of us are painfully aware, OSHA requires most employers with 11 or more employees to maintain injury and illness logs, otherwise known as the OSHA 300, 300A, and 301 logs. (See 29 CFR 1904.)2 OSHA also requires employers to maintain and update the injury and illness logs for five calendar years (29 CFR §1910.33[a]). For years, OSHA attempted to use the five-year maintenance and update period to issue citations for recordkeeping violations. For instance, suppose in 2011 an employee experienced a work-related injury and missed 10 days of work. However, because the OSHA 300 log incorrectly stated that the employee missed only nine days of work, OSHA claimed it could issue a citation for that single entry in 2015 on the basis of the five-year maintenance period.

OSHA's practice of issuing recordkeeping citations many years in the past came to a head in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012) ("Volks"). In Volks, OSHA issued the employer citations based on alleged recordkeeping violations that occurred more than six months prior to the citations' issuance dates. The employer challenged the citations, claiming that they were barred by OSHA's six-month statute of limitations (29 U.S.C. § 658[c]). The D.C. Circuit Court of Appeals agreed with the employer, finding that OSHA could not issue recordkeeping citations more than six months after the alleged violation, notwithstanding the five-year maintenance period.

Undeterred by the D.C. Circuit's Volks decision, OSHA has recently proposed a "[c]larification of employer's continuing obligation to make and maintain an accurate record of each recordable injury and illness." Specifically, OSHA wishes to "clarify" that;

"[e]mployers covered by the recordkeeping requirements have a continuing obligation to make and maintain accurate records of all recordable injuries and illnesses. This obligation continues for as long as the employer must maintain records for the year in which an injury or illness became recordable, and it does not expire if the employer fails to create a record when first required to do so" (80 Fed. Reg. 45116, 45125).

In other words, OSHA's proposed "clarification" is an attempt to bypass the D.C. Circuit's Volks decision to permit OSHA to issue citations beyond the six-month statute of limitations.

Even if OSHA succeeds in "clarifying" the existing recordkeeping regulations, it remains unclear whether OSHA's revisions will withstand challenges before the Federal courts. OSHA's recent "clarification" is akin to putting "lipstick on the same pig" because, rather than amending the OSH Act's statute of limitations, OSHA is again attempting to bypass it through the regulatory process. The D.C. Circuit rejected this approach in Volks, and it is possible a Federal court will do the same this time around.

Employers now have until September 28, 2015, to provide written comments on the proposed rule, and can submit their comments here. We recommend that everyone interested in informing OSHA of their opinion do so.

If you have questions about OSHA's recordkeeping requirements, OSHA's proposed "clarification" to the recordkeeping regulations, or how to comply with OSHA's regulations, please contact Fred Gants at (608) 283-2618/, Kerry M. Mohan at (608) 283-2620/, or your Quarles & Brady LLP attorney.