In a highly anticipated decision to close the 2016 calendar year, the Fifth Circuit Court of Appeals ruled on Dec. 29 that OSHA is barred from citing a Texas oil refinery for alleged violations that took place more than six months before the citations were issued. In Delek Refining Ltd. v. OSHRC, the Fifth Circuit unanimously agreed with a 2012 appeals court decision involving a similar argument from OSHA about alleged record-keeping violations. In Delek, the employer argued that the refinery could not be cited for alleged process safety management violations that were more than six months old. The Occupational Safety and Health Review Commission rejected that argument by a 2-1 vote, and the employer appealed to the Fifth Circuit.

OSHA has consistently argued that employers are obligated to correct safety and health problems when the first such problem occurs, and that the violations “continue” until abated. This argument, if adopted, essentially allows OSHA to toll the six-month statute of limitations, potentially indefinitely. The Fifth Circuit struck down this argument in Delek in an opinion that recognized the seemingly indefinite expansion of the statute of limitations. The Delek court held that the oil refinery’s failures to address the findings of the process hazard analyses were single events capable of triggering the statute of limitations. The Delek court also highlighted that if OSHA’s argument were adopted, the six-month statute of limitations would be rendered meaningless.

In the 2012 case, AJM LLC v. Secretary of Labor (Volks), the D.C. Circuit similarly concluded that OSHA could not cite employers for failing to record on-the-job injuries or illnesses if the violation took place more than six months before the citation was issued. So federal circuit courts of appeal – the highest-level courts in the United States below the Supreme Court – have twice rejected OSHA’s argument on this six-month statute of limitations issue. This was particularly significant when, at the end of 2016, OSHA adopted a new rule whereby an employer has a “continuing obligation” to make and maintain accurate records of each recordable injury and illness. We discussed the new rule, and the implications for the regulated community arising from that rule, here.