In the closing days of the Obama Administration, the Occupational Safety and Health Administration (OSHA) has issued a final rule that “clarifies” employers’ “continuing obligation” to make and maintain an accurate record of each recordable injury and illness beyond the six-month statute of limitations under the Occupational Safety and Health Act of 1970 (OSH Act). Once it takes effect, the new rule will allow OSHA to issue citations to employers for the failure to record an injury or illness up to six months following the five-year record retention period that would have applied to such record. The final rule, published December 19, 2016,[1] is available here. It aims to overturn the majority opinion in a 2012 ruling by the D.C. Circuit that rejected OSHA’s practice of citing employers up to five years after a failure to record a recordable injury or illness. It is unclear whether the incoming Trump Administration will attempt to rescind this rule.

Background

OSHA has had a longstanding practice of treating an employer’s failure to record an injury or illness as a continuing violation that is ongoing as long as the employer fails to record the injury or illness, and until the end of the five-year record retention period that would have applied to such record. Consistent with this practice, OSHA brought numerous blockbuster recordkeeping cases in the past that depended on accumulating a large number of unrecorded injury and illness cases, spanning as much as a five-year period, to send a message to employers about the importance of compliance.[2] This position was upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993.[3]

In 2012, this practice was halted when the U.S. Court of Appeals for the D.C. Circuit held in Volks II that OSHA cannot cite an employer for the failure to record work-related injuries and illnesses more than six months after the initial obligation to record the cases occurred.[4] In the majority opinion, Judge Brown characterized OSHA’s interpretation of the OSH Act’s recordkeeping requirements and statute of limitations as a “cloud of dust.”[5] She explained that Section 9(c) clearly requires OSHA to issue citations for recordkeeping violations within six months of the date the employer failed to record an injury or illness.[6] In a concurring opinion, Judge Garland acknowledged that the OSH Act could allow for continuing violations of recordkeeping requirements, but concluded that the recordkeeping regulations at issue did not impose a continuing obligation to make a record of a work-related injury or illness.[7]

OSHA’s Final Rule

OSHA’s final rule is a direct response to the Volks II decision. OSHA explained in the preamble that while it “disagrees with the majority’s reading of the law,” it “agrees that its recordkeeping regulations were not clear with respect to the continuing nature of employer’s recordkeeping obligations” and that the “final rule is designed to clarify the regulations. . . .”[8] In a press release regarding the final rule, Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, added that the rule “simply returns us to the standard practice of the last 40 years.” [9] OSHA also stated that that “[t]he amendments in the final rule add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.”[10]

Specifically, OSHA has revised 29 C.F.R. § 1904.29(b)(3) to state:

You must enter each and every recordable injury or illness on the OSHA 300 Log and on 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.

(emphasis added).

OSHA has also revised headings and text throughout 29 C.F.R. Part 1904 to make them consistent with this requirement. For example, OSHA has revised § 1904.32 and § 1904.33 to “clarify” employers’ obligations with respect to the review, retention, and maintenance of the OSHA 300 Log, OSHA 301 Incident Reports, and annual summary.

The final rule is scheduled to become effective on January 18, 2017, two days before the Presidential Inauguration.

Conclusion

Although OSHA contends that the final rule does not impose new compliance obligations on employers, it may lead to heightened scrutiny of employer injury and illness records and a return to large recordkeeping enforcement cases. Accordingly, employers should be diligent about recording, maintaining, and ensuring the accuracy of their injury and illness records.

Employers should also monitor potential legal challenges to the rule from industry stakeholders and the Trump Administration. The Volks II decision provides would-be legal challengers with a head start. Additionally, the Trump Administration could fail to enforce the rule, or the rule could be rolled back by Congress and the President via the Congressional Review Act. It is worth noting that OSHA continues to issue final rules and enforcement procedures, including enforcement procedures for the anti-retaliation provisions in OSHA’s recently issued electronic reporting rule, despite recent Republican warnings to President Obama that no new final rules should be released in the wake of the election results. [11] In doing so, these rules and related enforcement initiatives face an uncertain future.