By Joshua M. Henderson, Ilana R. Morady, and Craig B. Simonsen
Seyfarth Synopsis: Last week, Governor Brown signed into law Assembly Bill No. 2334, Occupational Injuries and Illness, Employer Reporting Requirements, and Electronic Submission.
A six-month statute of limitations period currently applies to all citations issued under Cal/OSHA. Assembly Bill 2334 will allow the California Division of Occupational Safety and Health (Cal/OSHA), starting January 1, 2019, to cite employers for injury and illness record-keeping violations “until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist.” In theory, the six-month limitation period could, depending on the circumstances, extend up to the five years that employers must maintain injury and illness records. The limit firmly remains six months for federal OSHA. See OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years.
The new law also may require the state to establish an advisory committee to determine whether employers should be required to file copies of their workplace injury and illness (WII) records with the state.
The law’s provisions leave many questions to be determined. For example, if federal OSHA drops the requirement for employers to electronically file summaries of each injury with the Agency, would the committee recommend Cal/OSHA require employers to file with the state, instead? It may well be quite a while before the committee is even created, much less makes recommendations to Cal/OSHA because the committee would conceptually be formed after federal OSHA loosens current filing requirements.
The bill appears to be a direct reaction to the Trump administration’s efforts to roll back record-keeping mandates set during the previous administration. Under the Obama administration, federal OSHA established a 5-year limit for record-keeping violations, however that limit was set aside by a congressional resolution signed by President Trump. The Trump Administration also substantially diminished employer obligations to electronically submit injury and illness data to federal OSHA.
We have frequently blogged on the contentious federal WII Rule. See Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting Requirements, All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.