OSHA’s ‘Continuing Obligation’ Recordkeeping Proposal Moves Forward

By Roy Maurer Dec 9, 2014
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An advisory panel voted in favor of the Occupational Safety and Health Administration (OSHA) moving forward with proposed revisions to its recordkeeping regulations in an uncharacteristically divided vote Dec. 4, 2014.

Employer representatives serving on the Advisory Committee on Construction Safety and Health (ACCSH) voted against advancing the measure in the 9-5 vote.

According to OSHA, the revisions will clarify that making and maintaining accurate records of work-related injuries and illnesses is “an ongoing obligation.” The duty does not expire “just because the employer fails to create the necessary records when first required to do so,” the agency said. This means the six-month period to issue a citation will restart every day an employer fails to record during the agency’s five-year record retention period, significantly expanding OSHA’s window to issue recordkeeping citations.

The proposed amendments do not add any new compliance obligations, said Lauren Goodman, an attorney with the Department of Labor’s Office of the Solicitor. “The proposal would not require employers to make records of any injuries or illnesses for which records are not currently required to be made,” she said, adding that “an employer’s failure to make a required OSHA record is a continuing violation, and that an uncorrected violation continues until the employer is no longer required to keep OSHA records for the year at issue.”

OSHA’s position is that an employer’s duty to record injuries and illnesses continues for the full duration of the mandated record retention period—five years after the end of the calendar year in which the injury or illness became recordable.

The agency’s proposed revisions are in response to the 2012 Volks decision, where the U.S. Court of Appeals for the D.C. Circuit rejected OSHA’s argument that a failure to record is a continuing violation. The court held that the six-month statute of limitations in the Occupational Safety and Health Act limits the period of time in which OSHA can issue a recordkeeping citation to no more than six months after a recordkeeping violation has occurred.

OSHA argued that the agency’s five-year document retention rule for injury and illness records tolled the six-month statute of limitations period. Therefore, in its view, the agency could add six months onto the five-year retention period to issue a citation. The court disagreed and held that the statute of limitations begins on the date of the violation. Otherwise, the court reasoned, OSHA could extend the citation deadline indefinitely by extending the document retention period.

“OSHA’s proposal cannot and will not somehow make the holding in Volks any less applicable,” said Arthur G. Sapper, a partner at McDermott Will & Emery, who argued the case before the D.C. Circuit.

“Under the proposal, you would still have an employer who as long as nearly five years before last received information that a recordable case had occurred, and who will end up being cited long after the facts are stale and long ago forgotten. That is exactly what the court in Volks disapproved of. It is just what the court had in mind when it called ‘absurd’ and ‘madness’ the idea that OSHA could avoid its decision by somehow fiddling with the language of the regulation,” he said.

Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, stated further that OSHA’s proposed modifications are “not theirs to make. That lies exclusively in the hands of Congress.”

The issue is likely to be resolved back in court. In the meantime, employers would be judicious to ensure that records are accurate, even if they are more than six months old. Employers undergoing an inspection may challenge OSHA inspectors as to why records more than six months old are being sought, if asked. “Inasmuch as the Volks decision swept away the basis for OSHA’s reliance on a continuing-violation theory in recordkeeping cases, employers should not, in general, accept OSHA citations that allege failures, occurring more than six months before the citations were issued, to record cases on their injury records,” said Sapper.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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