Washington Update

Washington Update: The recordkeeping workaround

Three years ago, a court handed down a decision that restricted OSHA’s ability to cite employers for recordkeeping violations. Now the agency is hoping to work around that decision through a new proposed rule.

The court case was AKM LLC v. OSHA. The enforcement agency cited AKM, which at the time was doing business as Volks Constructors, for failure to record injuries and illnesses during a three-and-a-half-year period in the mid-2000s. However, the citations weren’t issued until late 2006, at which point a six-month statute of limitations for citing such violations had expired.

Government lawyers argued that when employers fail to record a violation, the six-month statute of limitations does not apply because the obligation to record such injuries is a continuing one. This is coupled with a requirement that employers must “keep and maintain” injury records for five years.

Essentially, the government claimed that by virtue of needing to keep and maintain records for five years, failing to record injuries constitutes a “continuing violation.” Instead of having six months to cite an employer, the government said OSHA actually gets five-and-a-half years.

The U.S. Court of Appeals for the District of Columbia Circuit disagreed, and vacated the citations.

“The court basically ruled that once six months had lapsed from when the injury should have been recorded, the statute did not allow the agency to issue citations for recordkeeping violations, even under a continuing violations theory,” said Brad Hammock, a co-leader of Jackson Lewis’ Workplace Safety and Health Practice Group in Washington, and a former OSHA lawyer.

Instead of appealing the court’s decision, OSHA has chosen a different approach: a proposed rule clarifying that recording an injury is an “ongoing obligation.”

Published July 29, the proposed rule states that the duty to record an injury continues for the entire period in which the employer must keep a record of that injury. “The duty does not expire just because the employer fails to create the necessary records when first required to do so,” the proposal says.


Valerie Butera, a member of Epstein Becker Green’s labor and employment practice, is concerned about the move, claiming the rule’s intent may be outside of OSHA’s authority. The agency does not have the right to extend the statute of limitations, and Butera believes the proposed rule may do just that.

Although the requirements of both initially recording the injury and keeping that record for five years are intertwined (you can’t have the latter without the former), Butera said the two are separate requirements. Only the maintaining of the record is a continuing obligation; the other is a one-off occurrence that would have to comply with the six-month statute of limitations, she said.

Hammock, however, declined to characterize OSHA’s move the same way. His view: OSHA is trying to address the Volks case by tightening up regulatory language to express the continuing obligation of recording an injury. Whether that clarification will hold up in court is unclear, but the rule will almost certainly be challenged.

“Because of the fact that OSHA can’t change the language of the statute and that Volks exists, as soon as they cite someone for this again ... it’s going to go right back to the D.C. circuit,” Butera said.

Outcomes aside, the fact that employers must record injuries and maintain those records for five years is indisputable. OSHA has said this rule would not change employers’ current obligations.

But the reality, Hammock said, is employers could be faced with the difficulties of trying to remember an old work injury that should have been recorded. A lot can change in only a couple of years (e.g., the injured employee could have left the company or different recordkeepers may be on staff).

“It’s a very long period of time when you think about it,” Hammock said. Both Butera and Hammock advise all employers to make sure they’re keeping accurate records. The best way employers can avoid an OSHA recordkeeping citation – whether six months or 60 months from now – is to ensure all injuries and illnesses are documented immediately after they occur.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.

Kyle W. Morrison

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