A recent court decision clarifies time limits on issuing recordkeeping violations

By Kyle W. Morrison, senior associate editor

OSHA citations for recordkeeping violations must be issued within six months of an alleged transgression, an appellate court recently ruled, overturning the agency’s stance that it had as many as five and a half years.

Employers are required to record injuries and illnesses within seven days of learning about them, prepare a year-end summary of those injuries and illnesses, and keep all these documents for five years. In its case against AKM LLC, which at the time was doing business as Volks Constructors, OSHA accused the industrial contractor of failing to record injuries and illnesses between January 2002 and April 2006. Citations were issued in November 2006 – by which time the statute of limitations that requires citations to be issued within six months of the violation had expired.

Lawyers for the secretary of labor argued the citations were the result of “continuing violations” that constituted an extension of the statute of limitations until the end of the five-year document retention period. Because the law requires employers to “make, keep and preserve” records for that time, the violations continued every day that an injury or illness was not properly recorded, the secretary claimed. As such, the statute of limitations would be five and a half years after the initial violation occurred instead of six months.

In its unanimous April 6 decision, three judges from the U.S. Court of Appeals for the District of Columbia Circuit disagreed with the secretary’s argument and vacated the citations against Volks. Congress never intended for the Occupational Safety and Health Act’s statute of limitations to be ignored, the court asserted, meaning the citations issued were untimely.

“Despite the cloud of dust the secretary kicks up in an effort to lead us to her interpretation, the text and structure of the [OSH] Act reveal a quite different and quite clear congressional intent that requires none of the strained inferences she urges upon us,” the court said.

The court suggested the secretary’s interpretation could be expanded limitlessly to allow OSHA citations for a decades-old recordkeeping violation, adding there would be “truly no end to such madness.” 

Some reaction to the decision has suggested OSHA may be hampered in how it treats recordkeeping violations. Bradford Hammock, head of Washington-based law firm Jackson Lewis’ Workplace Safety Compliance Practice Group, said in a statement that the decision would have a major impact on OSHA’s ability to issue citations that allege large-scale, years-old recordkeeping violations.

“This is really a detriment to their authority to issuing recordkeeping violations,” said Casey Cosentino, a Washington-based labor and employment practice attorney with law firm Epstein Becker Green. “It draws back OSHA’s reach.”

Although it is unclear how often OSHA has issued citations beyond the six-month limit, Cosentino suggested the agency could compensate in light of the court’s decision by issuing citations for failures to keep records for five years. She urged employers to maintain these logs for the full period. (In the Volks case, the company was not cited for violating this requirement.)

This warning was echoed by Matthew Bouchard, a construction attorney at Raleigh, NC-based law firm Lewis & Roberts. While the court decision provides employers with a defense against citations for recordkeeping violations that occur outside the statute of limitations, OSHA rules still must be followed.

“This decision does absolutely nothing to change the obligations of employers,” Bouchard said.

In response to the ruling, an OSHA spokesperson told Safety+Health that the agency disagrees with the decision. She said OSHA is “reviewing options moving forward,” and would address outstanding recordkeeping citations on a case-by-case basis.

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