Appeals Court Rules that OSHA Has Less Time to Cite Recordkeeping Violations

[This article originally appeared in the August edition of SafetyCounts - MSDSonline's Customer Newsletter]

An appellate court recently ruled that OSHA has just six months from the time alleged violations of its Recordkeeping Standard occur to issue citations for non-compliance, overturning OSHA’s previous stance that it had up to 5 1/2 years.

Despite Secretary of Labor Hilda Solis' arguments in support of the agency’s 5 1/2 year interpretation, three judges from the U.S. Court of Appeals for the District of Columbia Circuit made the unanimous decision to clarify the rule and dismiss the citations issued to the appeal petitioner, Volks Constructors, on the grounds that the citations were issued after the OSH Act's six-month statute of limitations had expired.

The Occupational Safety and Health Act (“OSH Act” or “Act”) requires employers to make, keep and preserve records of workplace injuries and illnesses, and it grants the Secretary of Labor authority to satisfy this obligation through the OSHA Recordkeeping Standard, 29 CFR 1904. 

Three Main Requirements of the Recordkeeping Rule

  1. Employers must prepare an incident report (OSHA Form 301 or equivalent) and a separate injury log (OSHA Form 300) within seven (7) calendar days of receiving information that a recordable injury or illness has occurred [29 CFR 1904.29(b)(3)].
  2. Employers must also prepare a year-end summary report (OSHA Form 300A) of all recordable injuries during the calendar year [1904.32(a)(2)]. This year-end summary must be certified by a company executive [1904.32(b)(3)].
  3. Employers must save/retain all of these documents for five years from the end of the calendar year those records cover [1904.33(a)].

OSHA Issues Citations to Volks

  • On November 8, 2006, "OSHA fined Volks a total of $13,300 for 67 violations of 29 CFR 1904.29(b)(2)— incident report forms were incomplete, 102 violations of 29 CFR 1904.29(b)(3)—injuries were not entered in the log, one violation of 29 CFR 1904.32(a)(1) — year-end reviews were not conducted between 2002 and 2005, and one violation of 29 CFR 1904.32(b)(3) — the wrong person certified the year-end summary. The improperly recorded injuries occurred between January 11, 2002, at the earliest and April 22, 2006, at the latest.”

Volks Argues to Dismiss Citations as Untimely

  • Volks filed an appeal to dismiss the citations as untimely because the OSH Act says that no “citation may be issued ... after the expiration of six months following the occurrence of any violation."

OSHA Argues to Keep Citations - Saying They are for 'Continuing Violations'

  • The Secretary said all the violations for which Volks was cited are "“continuing violations” that prevent the statute of limitations from expiring until the end of the five-year document retention period in 29 CFR 1904.33(a). Therefore, the Secretary argued, all of Volks’ violations, stretching as far back as January of 2002, were still occurring on May 10, 2006 when the inspection began. The citations were issued two days shy of six months later than that date, so the Secretary argued they were timely.”

The Big Question for the Court

  • The court needed to determine “whether the Act’s recordkeeping requirement, in conjunction with the five-year regulatory retention period, permitted OSHA to subvert the Act’s six-month statute of limitations.” Ultimately, the judges ruled that it did not.

What This Means for You

  • Employer obligations under the Recordkeeping Rule remain unchanged, but given OSHA's new limitation, the agency may try to compensate by issuing citations for other permissible violations, such as being out of compliance with the five-year record retention mandate of the Recordkeeping Standard, 29 CFR 1904.33(a).Below is an excerpt of the court's position on how the 5 1/2 year timing would apply to violations of this part of the standard:"As the Court notes, OSHA’s record retention regulation imposes a continuing obligation: an employer “must save the OSHA 300 Log, ... the annual summary, and the OSHA 301 Incident Report forms for five (5) years.” 29 CFR 1904.33(a); see Court Op. at 7-8, 9 n.3. If the employer “loses or destroys a record before the end of that time period, that ... is a violation.” Court Op. at 7-8. Indeed, even if the company simply does not have the record during that period – whether because it was lost or destroyed or for any other reason, known or unknown – that too is a violation of the obligation to retain the records for five years. Accordingly, OSHA may cite an employer for such a violation “for six months after the fifth year.”

What Can You Do to Prepare and Comply?

Ensure that your records are in compliance at all times and that you're meeting OSHA’s record-retention requirement by logging and archiving your facility's recordkeeping information with the VelocityEHS  Incident Management product. This solution streamlines and simplifies recordkeeping tasks, from guiding you through the process of entering recordable incident details to generating the required OSHA forms on-demand.

Contact an MSDSonline Representative today to learn more or to schedule a demo.