On July 28, 2015, OSHA issued proposed rules seeking to clarify an employer’s ongoing obligation to make and maintain accurate records of work-related injuries and illness. The new rules were drafted in response to the U.S. Court of Appeals decision in AKM LLC, d/b/a Volks Constructors v. Secretary of Labor, in which a contractor successfully argued that OSHA’s citation was issued well beyond the six month limitation period.
OSHA’s Injury Record Keeping Obligations
The Occupational Safety and Health Act requires each employer to make, keep and preserve records of workplace injuries and illnesses. 29 U.S.C. § 658(c). OSHA has promulgated a set of regulations which require employers to record information about work-related injuries and illnesses in three ways. Employers must prepare an incident report and a separate injury log “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred,” 29 C.F.R. § 1904.29(b)(3), and must also prepare a year-end summary report of all recordable injuries during the calendar year, id. § 1904.32(a)(2). An employer “must save” all of these documents for five years from the end of the calendar year those records cover. 29 C.F.R. § 1904.33(a).
OSHA’s Citation Against Volks Constructors
In May, 2006, OSHA inspected Volks and found a number of record keeping violations. In November, 2006, OSHA cited and fined Volks Constructors $13,300.00, for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. In essence, Volks was cited for violations that occurred from 54 months to six months and 10 days before the citation.
Volks challenged the citation, arguing that it was issued too late because the Act says that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation,” 29 U.S.C. § 658(c), and because the injuries giving rise to recording failures took place more than six months before the issuance of the citation. Volks lost at the administrative level and lost again before the Occupational Safety and Health Review Commission. Volks ultimately appealed to the U.S. Court of Appeals, which reversed OSHA’s citation.
The Court of Appeals Decision
In a nutshell, the court found that OSHA had waited too long to issue the citation—beyond the six month limitation period contained in the statute. In an effort to maintain its citation, OSHA argued that the six month period to issue the citation does not begin to run until the five year record retention obligation ends.
The court was not persuaded by OSHA’s argument:
[T]he Secretary’s interpretation has absurd consequences in the context of the discrete record-making failure in this case. Under her interpretation, the statute of limitations Congress included in the Act could be expanded ad infinitum if, for example, the Secretary promulgated a regulation requiring that a record be kept of every violation for as long as the Secretary would like to be able to bring an action based on that violation. There is truly no end to such madness.
Relying on the plan language of the statute, the court concluded that employers must make records of workplace injuries in whatever form the Secretary requires within the time period established by the Secretary—here, seven days after the injury. If they fail to do so, that is a violation. OSHA may cite employers for violations within six months of the violation’s occurrence.
OSHA’s New Regulations
OSHA is proposing to amend its recordkeeping regulations, 29 CFR part 1904, to clarify that employers covered by the recordkeeping requirements have a continuing obligation to make and maintain accurate records of all recordable injuries and illnesses. OSHA asserts that 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.
Interestingly, these new regulations run completely afoul of the court’s decision in Volks. It will be interesting to see if the new regulations are enforceable, given the court’s comments that the record keeping statutes are clear and OSHA’s interpretation of the statute, through its rules, was unreasonable. The new rules appear to build on OSHA’s original unreasonable interpretation.