The Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking July 29, 2015, that seeks to clarify that the duty to record work-related injuries and illnesses is an ongoing obligation throughout the five-year period during which employers are required to keep the records.

The proposed rule aims to reverse a 2012 federal appeals court decision ruling that employers can only be cited for failing to record injuries or illnesses within six months of when the recording is required.

“The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so,” OSHA said. The proposed amendments to the recordkeeping regulations add no new compliance obligations, the agency said. “The proposal would not require employers to make records of any injuries or illnesses for which records are not currently required to be made.”

Responsibility to Record

Covered employers are required to record information about certain injuries and illnesses occurring in their workplaces on the OSHA 300 log and 301 report, and to make that information available to employees, OSHA and the Bureau of Labor Statistics. Employers must record work-related injuries and illnesses that meet certain criteria, including those that result in death, loss of consciousness, days away from work, restricted work activity or job transfer, medical treatment beyond first aid, or a diagnosis of a significant injury or illness by a physician.

OSHA’s position has been that an employer’s duty to record an injury or illness continues for the full duration of the record-retention-and-access period: five years after the end of the calendar year in which the injury or illness became recordable and that recordkeeping violations are continuing violations.

Therefore, OSHA is asserting that it can cite employers for recordkeeping violations for up to six months after the five-year retention period expires without running afoul of the statute of limitations outlined in Section 9(c) of the Occupational Safety and Health Act.

The Volks Decisions

The Occupational Safety and Health Review Commission in 2011 upheld OSHA’s position on the continuing nature of recordkeeping violations in Secretary of Labor v. AKM LLC (Volks I).

That decision was reversed April 6, 2012, by a panel of the D.C. Circuit Court of Appeals in AKM LLC v. Sec’y of Labor (Volks II).

The court disagreed with the commission and held that OSHA is not authorized by statute to cite an employer for a recordkeeping violation more than six months after the recording failure.

“The Volks II decision has led to a need for OSHA to clarify employers’ obligations under its recordkeeping regulations and to elaborate on its understanding of the statutory basis for those obligations,” OSHA said.

The agency is accepting comments on the proposed rule through Sept. 27, 2015.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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