OSHA Wants to Change Recordkeeping Rule to Pursue Violations for Up to Five Years After They Occur

22 December 2014 Labor & Employment Law Perspectives Blog

Under current OSHA rules, employers must keep and retain certain records of workplace injuries, and if an employer neglects to keep the required records, OSHA can issue citations for the employer’s lack of compliance. However, there is currently a six-month time limit on how far into the past OSHA may reach to cite employers for not following the record keeping requirements. OSHA is now taking steps to change the time period to the full five years that individual records must be retained.

OSHA regulations, as they stand today, require employers to record information about work-related injuries and illnesses in three ways. First, employers must prepare an incident report within seven days of receiving information that a recordable injury or illness has occurred. Second, they must also create a separate injury log within seven days. Finally, employers need to prepare a year-end summary report of all recordable injuries during the calendar year. All of these documents have to be saved for five years from the end of the calendar year the records cover. Failure to follow these requirements can lead to citations from OSHA.

In a 2012 federal appellate court case, OSHA unsuccessfully attempted to argue that any violation in the five-year period should be considered a “continuing violation.” This means that the employer, if it violates the statute at any time in the five years, is considered in violation on a continual basis for the entire time it is required to maintain those particular records. By using this argument, OSHA attempted to circumvent the six-month statute of limitations for the issuance of citations. If the court agreed, OSHA could then reach back into any time in the past five years to issue citations. The court rejected the argument and confirmed that OSHA is limited in their ability to cite violators to any alleged violations that have taken place in the last six months. However, OSHA was not deterred by the appellate court’s decision and is trying to find a new way to reach farther back into employer records to cite previous violations of the recordkeeping rules.

On December 4, 2014, OSHA held a meeting of the Advisory Committee on Construction Safety and Health (ACCSH). ACCSH is an advisory committee that gives advice and assistance to OSHA regarding construction standards with 15 members comprised of representatives for employers, employees, and federal, state, and public representatives. At the meeting, OSHA sought a recommendation from ACCSH on whether it (OSHA) should issue a proposed rule amending the regulations to clarify that the recordkeeping requirements constitute an ongoing obligation for the employer. After discussion at the meeting, ACCSH agreed with OSHA and recommended that they issue a Notice of Proposed Rulemaking, which would make the changes OSHA desires. The next step in the process will be for OSHA to issue the Notice of Proposed Rulemaking.

It is important to note that the proposed rule does not change any requirements for employers. All of the rules regarding keeping and retaining records remain the same. The only thing that may change if the rule is adopted is OSHA’s ability to cite violators. For employers who strictly follow the OSHA requirements for recordkeeping and retention, the rule imposes no extra risk and no cause for alarm. If, however, an employer’s recordkeeping compliance is not always what it should be, this proposed rule should serve as a strong reminder that OSHA takes these employer obligations seriously. Luckily, there is plenty of notice built into the rule-making process. Employers have time to review their recordkeeping processes and make any necessary changes to ensure compliance prior to the implementation of any future rule on the subject.

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