On December 19, 2016, OSHA published a final rule in the Federal Register (81 FR 91792) titled, “Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” which becomes effective today, January 18, 2017.
OSHA’s final rule provides that covered employers have a continuing duty to make and maintain accurate work-related injury/illness records (e.g., the OSHA 300 Log and the OSHA 301 Incident Report or its equivalent) throughout the five-year retention period applicable to these records under OSHA regulation 29 CFR 1904.33. According to OSHA, this is not a new requirement, but it is a necessary “clarification” given the debate on when a recordkeeping violation ends and the six-month statute of limitations provided in OSH Act 29 U.S.C. § 658(c) begins to run on an OSHA violation. That is if, for example, an employer fails to ever document a recordable injury on an OSHA 300 Log, OSHA may cite this employer five and a half years after the record should have been made.
Why did OSHA issue the final rule?
OSHA intended to upend a 2012 court holding that defined a recordkeeping violation as a discrete violation and, therefore, stopped OSHA from issuing recordkeeping citations six months after the violation initially occurred. AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012) (Volks II). For example, under Volks II, if an employer failed to document a recordable injury when it was required to do so, e.g., November 2006, OSHA could not issue a citation six months after that date had passed. Under OSHA’s final rule (and in keeping with OSHA practice pre-2012), OSHA now has up to five years and six months after November 6 to issue a citation.
To whom does this final rule apply?
It applies to employers with more than 10 employees who are required to keep records of work-related injuries/illness. For more information, visit: www.osha.gov/recordkeeping/ppt1/RK1exempttable.html.
How should covered employers respond to the final rule?
Some employers may want to go back and ensure that all qualifying injuries/illnesses have been properly documented. Of course, deciding whether to look back depends, in part, on whether an employer believes there could be errors in its records. Certainly, the existence and extent of errors is more likely and worrisome, if the employer knows or is unsure of the quality of its OSHA-recordkeeping practices.
What are the chances that OSHA will now cite employers for five-year-old recordkeeping violations?
Employers should know that after January 18, 2017, the chances of receiving such a citation is no longer zero.
What kind of monetary penalties might OSHA issue for a violation that occurred five years ago?
While there is no recent data to look to on this issue, OSHA’s pre-2012 practices are telling. For example:
The above penalties would be greater today than they were pre-2012. OSHA recently increased its penalty amounts to adjust for inflation. The following new amounts took effect August 2, 2016:
| Type of Violation | Previous Maximum Penalty | New Maximum Penalty |
| Serious Other-Than Serious Posting Requirements |
$7,000 per violation | $12,471 per violation |
| Failure to Abate | $7,000 per day beyond the abatement date | $12,471 per day beyond the abatement date |
| Willful or Repeated | $70,000 per violation | $124,709 per violation |
Final thoughts.
The bottom line is that OSHA has made it very clear that it is no longer limited by the Volks II holding. As such, OSHA may now issue recordkeeping citations six months after an employer’s five-year obligation to make and maintain accurate OSHA records expires. As such, covered employers would be wise to consider auditing their OSHA-recordkeeping procedures and processes and reviewing their work-related injury/illness reports going back five years.
If you would like more information or have questions regarding this OSHA amendment, please contact Dawn Ward at 616.396.3039 or dward@wnj.com, Karen VanderWerff at 616.752.2183 or kvanderwerff@wnj.com or any other member of the Warner Labor and Employment Group.
