D.C. Circuit Rejects OSHA’s Recordkeeping Citation Policy

In a significant victory for employers, the D.C. Circuit has held that OSHA recordkeeping violations must be cited within six months of the failure to record, or the citations will be considered untimely. An employer’s failure to properly record or maintain workplace injury and illness records for the requisite five-year period under OSHA’s recordkeeping regulations does not constitute a continuing violation that tolls the six-month statute of limitations for issuing citations. This decision effectively limits OSHA’s ability to issue citations for recordkeeping violations that fall outside the statutory six-month limitations period, as stated in the federal Occupational Safety and Health Act. AKM LLC, d/b/a Volks Constructors v. Secretary of Labor (D.C. Cir. April 6, 2012). The limitations provision states, “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation.”

The Act requires that “[e]ach employer shall make, keep and preserve” records of workplace injuries and illnesses “as the Secretary . . . may prescribe by regulation.” 29 U.S.C. § 657(c)(1). Under that authority, OSHA has issued regulations that 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. 29 C.F.R. § 1904.32(a)(2).

In November 2006, OSHA cited Volks Constructors for several recordkeeping violations, including failing to record certain injuries and failing to properly maintain its injury log between January 2002 and April 2006. The citations were issued at least six months after the last unrecorded injury occurred. In a 2-1 ruling last year, the Occupational Safety and Health Review Commission (OSHRC) affirmed the citations, finding that the recordkeeping violations continue through the five-year retention period as long as employer logs remain inaccurate.

The D.C. Circuit ruled unanimously, however, “that the citations are untimely and should be vacated.” The court stated:

We think the statute is clear; the citations are untimely. The statute of limitations provides that ”no citation may be issued … after the expiration of six months following the occurrence of any violation.” Like the Supreme Court, we think the word “occurrence” clearly refers to a discrete antecedent event – something that “happened” or ”came to pass” ”in the past.”

The court’s decision is stated in unusually harsh terms, revealing a perception that OSHA and OSHRC had disregarded congressional intent as to the limitations period. The court stated that “[i]n this case, every single violation for which Volks was cited – failures to make and review records – and every workplace injury which gave rise to those unmet recording obligations were ‘incidents’ and ‘events’ which ‘occurred’ more than six months before the issuance of the citations. Moreover, the court pointed out that the “Secretary [of Labor] does not offer any other definition of ‘occurrence’ but instead heroically attempts, as the dissenting Commissioner put it, to ‘tie this straightforward issue into a Gordian knot.’” The court further stated, “Despite the cloud of dust the Secretary kicks up in an effort to lead us to her interpretation, the text and structure of the Act reveal a quite different and quite clear congressional intent that requires none of the strained inferences she urges upon us.”

How does the decision affect employers?

It is unclear how OSHA and OSHRC will respond to the decision. OSHA could seek reconsideration by the entire D.C. Circuit, although this seems unlikely. It is also not clear whether OSHA will modify its enforcement approach to recordkeeping requirements, or whether OSHRC and its administrative law judges will accept the D.C. Circuit’s decision and apply the ruling in new cases. Indeed, it can be expected that some employers who already received recordkeeping citations older than six months will now move for their dismissal.

It is also not clear whether state plans will accept the court’s decision. In most cases, however, the states can be expected to follow federal OSHA’s lead as to enforcement policy.

Until OSHA indicates a change in how it intends to address the issue, it remains prudent for employers to continue to ensure that records are accurate, even if they are more than six months old. In recordkeeping inspections, however, if OSHA compliance personnel seek injury and illness logs more than six months old, an employer may consider asking the inspectors to state the reason such records are being sought. While it may not be wise to resist producing requested materials, such inquiries may result in a narrowing of inspection demands.

Bear in mind, however, that the ruling pertains only to recordkeeping. Under certain circumstances, the court explained, such as when an employer continues to use unsafe equipment or sends untrained employees into dangerous situations, “OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist.”

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