OSHA’s Final Rule Clarifying (and Confirming) the Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness

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December 19, 2016

OSHA has always taken the position that the duty to record accurate and complete injuries and illnesses is a continuing duty.  OSHA concedes, however, “that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations.”  OSHA has now issued a Final Rule that clarifies the continuing nature of the recordkeeping requirement.  The Final Rule was published on December 19, 2016.

Why does a continuing obligation matter?  It matters because a continuing duty operates to extend the reach of the statute of limitations.  OSHA can reach back further in time to issue citations.  The Final Rule was developed in response to the prior (“not clear”) recordkeeping language that was held to not create a continuing obligation in AKM, LLC v. Sec’y. of Labor, 675 F.3d 752 (D.C. Cir. 2012) (Volks II).  OSHA has perpetuated its disagreement with the interpretation of the U.S. Court of Appeals for the District of Columbia.  OSHA spells out its disagreement in the Final Rule, which is expressly “adopted in response” to the Volks II ruling.  “This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.”

The facts in Volks II illustrate why it matters whether the recordkeeping duty is one that is continuing.  The employer had recordkeeping deficiencies during a 54-month period from January 11, 2002, through April 22, 2006.  OSHA began its inspection on May 10, 2006, and issued citations (that reached back to January 11, 2002) on November 8, 2006.  Employers “must save” records for a period of 5 years.  The statute of limitations in which citations must be issued is 6 months. 

OSHA argued (unsuccessfully) that the 5-year record retention and access period must be added to the 6-month statute of limitations.  Under that theory the statute of limitations would have expired on November 10, 2006.  According to OSHA’s argument, the citations were issued timely, by a bare two days, so as to encompass all the violations.  The Court of Appeals rejected OSHA’s argument, however, and determined that OSHA’s interpretation would “subvert the Act’s six-months statute of limitations.”  The last violation (April 22, 2006) occurred more than 6 months before the citations were issued (November 8, 2006); none of the violations occurred within 6 months of issuance.  The court, therefore, ordered that all of them be dismissed.

Now in this Final Rule OSHA has added language to clarify (and I would say to confirm) its long-held position that employers hold a continuing duty to perform their recordkeeping obligations.  The Final Rule takes effect on January 18, 2017, two days before the presidential inauguration. 

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