Recent OSHA activity indicates the agency will soon unveil its proposed rule to make recordkeeping violations “continuing” for purposes of OSHA’s six-month statute of limitations (SOL). In addition to placing the rule on its Spring 2014 Regulatory Agenda, OSHA most recently announced the rule will be on the Advisory Committee on Construction Safety and Health’s (ACCSH) agenda for its December 3-4, 2014 meeting. According to the expected amendment, recordkeeping will become an ongoing obligation. This means the six-month period to issue a citation will restart every day an employer fails to correct an existing violation. If promulgated, the rule could significantly expand OSHA’s window to issue recordkeeping citations.
The impending rule is widely understood as an attempt to overturn a 2012 U.S. Court of Appeals for the D.C. Circuit decision (the Volks Decision) where the Court prohibited OSHA from doing what it now seeks to do. In that case, OSHA argued that the five-year document retention rule for injury and illness records tolled the six-month SOL period. Therefore, the agency could have six months in addition to the five-year retention period to issue a citation. On appeal, the D.C. Circuit disagreed and held that the statute of limitations begins on the date of the discrete recordkeeping violation. Otherwise, the court reasoned, OSHA could extend the citation deadline indefinitely by adding an infinite document retention rule.
In response to the Volks Decision, OSHA announced its intent to “clarify” its recordkeeping rule when it released its Spring 2013 Regulatory Agenda last year. According to the Agenda entry, the rule would be amended so that “(1) the duty to maintain accurate records of work-related injuries and illnesses is an ongoing obligation; (2) the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred; and (3) this duty will not expire even if the employer failed to make the necessary records in the first place.”
In 2014, OSHA put the rule back on the Regulatory Agenda (with little changes from the 2013 Agenda), hoping to issue a proposed rule by August 2014. Most recently, OSHA announced on November 3rd that the rule would be on the agenda for ACCSH’s December 3-4 meeting in Washington, D.C. The ACCSH advises the Secretary of Labor on OSHA construction standards and policy matters.
Should the rule be promulgated, OSHA will give itself a significantly larger window to issue recordkeeping violations. As on “ongoing obligation,” the six-month statute of limitations for recordkeeping violations will reset itself each and every day the predicate violation goes uncorrected for the the life of the record's retention period - five years. Therefore, OSHA could rightfully cite an employer for an uncorrected recordkeeping violation five years and six months after its occurence.
As we originally pointed out in a related article, the new rule could have an impact in other areas of OSHA enforcement where employers are also required to maintain records. For example, OSHA’s Process Safety Management (PSM) standard also contains recordkeeping provisions, like 1910.119(e)(5) (requiring an employer to document that certain findings and conclusions of process hazard analyses have been resolved) and 1910.119(o)(4) (requiring an employer to document that the findings from a compliance audit have been addressed). OSHA inspectors could apply the revised recordkeeping rule to violations under these standards as well.
Employers should watch the developing situation closely, finding opportunities to participate in the debate and comment in the impending rulemaking process. Until then, employers should continue to diligently review their recordkeeping entries and ensure compliance with all recordkeeping requirements.