By Ilana R. Morady and Craig B. Simonsen

Construction Inspector 4OSHA, through a rulemaking, is seeking to build a work-a-round to a D.C. Circuit Court of Appeals opinion on issuing citations for recordkeeping violations that are more than six months old. 80 Fed. Reg. 45116 (July 29, 2015).

We had blogged previously about the D.C. Circuit Court of Appeals opinion in AKM LLC v. Secretary of Labor, 675 F.3d 752, 2012 WL 1142273 (DC Cir., 2012). In that case the Occupational Safety and Health Administration (OSHA) had issued certain recordkeeping citations and penalties for alleged errors on an OSHA 300 log more than six months after the alleged erroneous entries were made on the log. The Court found that that the citations were untimely, and were vacated.

The question before the Court in AKM LLC was whether the Occupational Safety and Health Act’s (OSH Act) recordkeeping requirement, in conjunction with the five-year regulatory retention period, permits OSHA to subvert the OSHA Act’s six-month statute of limitations. Because the Act says that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation,” 29 U.S.C. § 658(c), the Court agreed with the employer, Volks Constructors (Volks), that the citations were untimely, and vacated them.

OSHA had cited and fined Volks for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was at least six months after the last unrecorded injury occurred.

The Court in AKM LLC summed it up this way: “The Act clearly renders the citations untimely, and the Secretary’s argument to the contrary relies on an interpretation that is neither natural nor consistent with our precedents. The petition for review is granted and the citations are vacated.” This AKM LLC decision had raised serious questions about OSHA’s ability to issue citations for past violations, not only under the recordkeeping standard, but under other OSHA standards as well.

In response, now OSHA is proposing to amend the recordkeeping regulations to “clarify” that the duty to make and maintain accurate records of work-related injuries and illnesses would be an ongoing obligation for five years after a record should have been made on the log. “The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so.”

Under the AKM LLC decision, employers who have been cited for recordkeeping violations that occurred more than six months before OSHA issued the citation have had a viable statute of limitations defense. OSHA’s proposed rule threatens that defense and is inconsistent with the AKM LLC finding that “nothing in the [OSH Act] suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years.”

Written comments on the proposed rule are due to OSHA Docket No. OSHA–2015–0006 on September 28, 2015.