In 2012, the U.S. Court of Appeals for the District of Columbia held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Unhappy with the unfavorable ruling, on July 29, 2015 OSHA issued a proposed rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” According to OSHA, the rule is meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.” In short, this agency action is not an attempt to clarify an existing duty but to create a new one by undoing the holding in the Volks case.

Public comments to the proposed rule were submitted in September 2015. On October 14, 2016, OSHA submitted the final rule to the Office of Information and Regulatory Affairs (OIRA) signaling that a final rule may be issued in the next several months. Under Executive Order 12866, OIRA reviews agency rulemaking to “ensure that agencies carefully consider the consequences of rules (including both benefits and costs) before they proceed.”

OIRA has 90 days to review the final rule and hold stakeholders meetings, if such meetings are requested. After its review, OIRA may clear the rule for promulgation and issuance in the Federal Register or return the rule to OSHA for reconsideration. If OIRA reviews and clears the final rule it could be issued shortly before the swearing in of the next President in January 2017.