Blocked in Court, OSHA Fights for Authority to Issue Long-Term Recordkeeping Citations

When its ability to issue citations for ongoing recordkeeping violations was hampered by a 2012 court decision (which characterized the rule as “madness”), few believed that OSHA would take the decision lying down. Now it looks like OSHA is indeed ready to continue the fight.

OSHA’s recordkeeping rule requires that non-exempt employers record information about certain injuries and illnesses. These recordable instances must be documented on an OSHA 300 form and employers must prepare an OSHA 301 Incident Report. OSHA requires that these logs be kept for five years after the calendar year they cover.

This week, OSHA issued a new Notice of Proposed Rulemaking (NPRM) designed to extend the statute of limitations for enforcing recordkeeping violations up to 5.5 years beyond an employer’s first failure to record. The NPRM is an attempt by OSHA to close a legal “loophole” that says a company cannot be cited for an initial failure to record an injury and illness six months beyond the recordable incident.

OSHA has previously maintained that “a new claim accrues each day the violation is extant.” And that “the duty does not expire just because the employer fails to create the necessary records when first required to do so.”

OSHA’s liberal enforcement policy had been unsuccessfully challenged previously in the courts (in cases like Sec’y of Labor v. Gen. Dynamics and Sec’y of Labor v. Johnson Controls). However, in AKM LLC v. Secretary of Labor (Volks II), a D.C. Circuit court found that OSHA’s rules pertaining to continuing Recordkeeping violations needed to be more specific. The Circuit judge said OSHA’s current language was open to interpretations that could potentially result in “absurd consequences” for businesses.

As OSHA itself puts it: “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.”

The new language in OSHA’s NPRM would allow it to once again cite violators who fail to record qualifying illnesses and injuries for each day the company is out of compliance, for up to five years and six months immediately following the violation. Or as the agency puts it:

 “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.”

Through the new Recordkeeping NPRM, OSHA is seeking to collect feedback from stakeholders on the proposed rule until September 28 of this year. Written comments — which should be identified by Docket No. OSHA-2015-0006 — can be mailed to OSHA, or submitted electronically via the Federal e-Rulemaking Portal at