OSHA Tackles Volks II Setback in Recordkeeping Rulemaking
More than three years after a federal appeals court ruled that OSHA must cite an employer for failing to record an injury or illness within six months of the first day on which the regulations require the recording, OSHA now intends to revise 29 CFR part 1904 to "clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation."
OSHA issued a Notice of Proposed Rulemaking on July 29 that aims to reverse a major defeat the agency sustained on April 6, 2012, when a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in AKM LLC v. Secretary of Labor that OSHA must cite an employer for failing to record an injury or illness within six months of the first day on which the regulations require the recording. OSHA had adopted the position that the recordkeeping violations are continuing violations—that an employer's duty to record an injury or illness continues for as long as the employer must retain the OSHA 300 log and 301 report of that injury or illness, which is five years after the end of the calendar year in which the injury or illness became recordable. And now the agency has launched a rulemaking to write this into its recordkeeping rule.
The proposal states OSHA's case: "This means that if an employer initially fails to record a recordable injury or illness, the employer still has an ongoing duty to record that case; the recording obligation does not expire simply because the employer failed to record the case when it was first required to do so. As long as an employer fails to comply with its ongoing duty to record an injury or illness, there is an ongoing violation of OSHA's recordkeeping requirements that continues to occur every day employees work at the site. Therefore, OSHA can cite employers for such recordkeeping violations for up to six months after the five-year
retention period expires without running afoul of the OSH Act's statute of limitations."
Comments on the proposed rule must be submitted by Sept. 27. To submit a comment, visit www.regulations.gov and search for Docket No. OSHA-2015-0006.
"Accurate records are not simply paperwork, but have an important, in fact life-saving purpose," Assistant Secretary of Labor Dr. David Michaels said. "They will enable employers, employees, researchers, and the government to identify and eliminate the most serious workplace hazards, ones that have already caused injuries and illnesses to occur."
OSHA announced the proposed rule a day before its publication, saying that its proposed amendments "add no new compliance obligations; the proposal would not require employers to make records of any injuries or illnesses for which records are not already required."