As a parting gift, OSHA has issued one of its last final rules for this administration, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” 81 Fed. Reg. 91792 (December 19, 2016). The final rule amends the OSHA recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. 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. The final rule revises § 1904.29(b)(3) to state:

How quickly must each injury or illness be recorded? You must enter each and every recordable injury or illness on the OSHA 300 Log an don a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to record within seven days does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in § 1904.33.

Id. at 91810. (emphasis added).

OSHA essentially disregards the Occupational Safety and Health Act’s (OSH Act) six-month statute of limitations and the final rule allows OSHA to cite employers for such recordkeeping violations for up to six months after the five- year retention period expires. The agency’s initiative stems from a 2012 federal appeals court ruling in which a three-judge panel held that, under the OSH Act’s Section 9(c) statute of limitations provision, OSHA had no authority after six months from the date a workplace injury or illness must be recorded to cite an employer for not recording the incident. AKM LLC v. Sec’y of Labor (Volks II), 675 F.3d 752 (D.C. Cir. 2012). The Court in Volks II concluded that “[n]othing in the [OSH Act] suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-keeping violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.” Id.

Despite such a clear and unambigious holding in Volks II, OSHA issued a final rule revising § 1904.29 to clarify that a discrete record-keeping violation can continue during the 5-year retention period. The final rule is effective January 18, 2017.