On July 29, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a proposed rule to “clarify” employers’ recordkeeping obligations under 29 C.F.R. Part 1904. Comments are due by September 28.

The agency has long maintained that employers must keep accurate recordkeeping logs for the entire five-year retention period imposed by its regulations. In other words, a failure to properly record a recordable incident that occurred in 2011 would still be grounds for a violation today should OSHA discover the omission during an inspection.

Some employers, however, maintain that OSHA’s position conflicts with the six-month statute of limitations imposed by statute, the Occupational Safety and Health Act of 1970 (OSH Act). A failure to properly record a recordable incident can only be cited if OSHA discovers the omission within six months of the date the employer was obligated to record the incident. 

The United States Court of Appeals for the D.C. Circuit addressed this issue in 2012. In AKM, LLC, dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012) (known as the Volks decision), a three-judge panel vacated the citations based on its unambiguous reading of 29 U.S.C. § 658(c), the OSH Act’s statute of limitations. The court reasoned that a recordkeeping failure becomes a violation when the employer fails to properly record the injury within seven days after the injury. “If an injury is reported on May 1, OSHA can cite an employer for the failure to create a record beginning on May 8, and a citation issued within the following six months, and only the following six months, would be valid,” Judge Janice Rogers Brown wrote for the panel.  

OSHA argued that employers had an obligation to maintain their records for five years. But the court rejected this contention, reasoning that the five-year retention regulation constituted a separate requirement. If an employer loses or destroys a record before the end of that five-year time period, then “that too is a violation.” In other words, the obligation to record the incident and the obligation to maintain the records are two distinct obligations.

OSHA did not file a petition for en banc rehearing with the D.C. Circuit, nor did it file a petition for writ of certiorari with the Supreme Court of the United States. Instead, the agency decided to amend its recordkeeping rules to “clarify” its position and effectively overturn the Volks decision. OSHA does not deny that it is trying to overturn a federal court decision. Volks, the agency writes, “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 proposes to amend the recordkeeping rules as follows:

  • Amend 29 C.F.R. §1904.29(b)(3) to state that failing to properly record a recordable incident within seven days “does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire [five-year] record retention period described in § 1904.33.”
  • Amend 29 C.F.R. §1904.32 to impose an annual duty on employers to review and verify 300 logs for accuracy before they post the 300A Annual Summary.
  • Amend 29 C.F.R. §1904.33 to mandate that if there are omissions in a recordkeeping log, employers “are under a continuing obligation to record the case on the Log and/or Incident Report during the five-year retention period for that Log and/or Incident Report.”
  • Amend 29 C.F.R. §§1904.35 and 1904.40 to require that employers provide “accurate” recordkeeping logs to union representatives or OSHA officials, when requested.

OSHA has latched onto Judge Merrick Garland’s concurring opinion as justification for its proposed rule. According to OSHA, Judge Garland “recognized that the OSH Act allows for continuing violations of recordkeeping requirements,” but “concluded, however, that the specific language in OSHA’s existing recordkeeping regulations does not implement this statutory authority and does not create continuing recordkeeping obligations.” OSHA has seized upon this rationale as the basis to change the recordkeeping rules.

Problems with the Proposed Rule

One problem with OSHA’s proposed rule is that the “continuing violation” doctrine does not readily apply to recordkeeping violations. The Occupational Safety and Health Review Commission and several federal courts have recognized that the agency can cite employers for “continuing violations” where an employer leaves a hazardous condition unabated for years. 

Consider the following scenario. An employer removed all the guards from a bench grinder in its workplace back in 2011. Today the bench grinder sits in the workshop unguarded. OSHA can (and will) cite the employer for a machine guarding violation, even though the violation started back in 2011. The agency’s rationale is that the danger of the unguarded grinder created by lack of guards persists every day up to the present.

But the failure to record a recordable incident does not present a hazard. Employees are not exposed to any risk of injury by an employer’s failure to record an incident; it is an exercise in paperwork.

A second problem is that a majority of the panel in Volks rejected the contention that a recordkeeping violation can be a continuing violation. The court quoted a 1977 case to explain: “the ‘mere failure to right a wrong . . . cannot be a continuing wrong which tolls the statute of limitations,’ for if it were, ‘the exception would obliterate the rule.” In other words, a failure to record is an inaction—it only happens once. It is not a continuing action that constitutes a continuing violation.

Finally, OSHA’s proposed rule disregards the Volks panel’s main rationale for its decision—the OSH Act itself. The panel held that the statute is unambiguous, and Congress made its intentions clear when it established a six-month statute of limitations. “We do not believe Congress expressly established a statute of limitations only to implicitly encourage the Secretary to ignore it.”

The Volks panel ridiculed the Secretary’s position as leading to “absurd consequences.” Under OSHA’s interpretation, the statute of limitations “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.” The panel decried this hypothetical as “madness.” “We cannot believe Congress intended or contemplated such a result,” wrote Judge Brown. “Nothing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.”

What’s to Come

Should OSHA issue a final rule substantially similar to the proposed rule, employers can expect OSHA to carefully review OSHA 300 recordkeeping logs kept for the past five years and to issue citations for any omissions or inaccuracies in the logs. A challenge to OSHA’s “clarified rules” seems likely, and may end up back in the D.C. Circuit. The odds of an en banc rehearing are increased, given that the panel reviewing the new rules will probably make one of two determinations: (a) they are bound by the Volks decision (a result OSHA will not like); or (b) they can distinguish and not apply the holding of Volks (a result the employer, as well as perhaps the Volks panel judges, will not like).

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