Search form

OSHA Proposes Changes to Recordkeeping Rule

By Tressi L. Cordaro
  • August 12, 2015

The Occupational Safety and Health Administration has proposed a rule intended to overcome a court ruling that barred the agency from citing an employer for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. The rule, proposed July 29, would amend 29 CFR § 1904 to clarify that an employer’s duty to record an injury or illness continues for a period of five years, the length of time employers now must keep records of every recordable injury or illness. The OSHA 300 Log and 301 Incident Report forms are used for this purpose.

According to OSHA, the proposed rule adds no new compliance obligations, but includes changes to the text of some existing provisions. One potentially significant change is a revision of the definition of “occurrence” to include ongoing violations, such as an unreported injury. The proposal would not require employers to make records of any injuries or illnesses for which records are not currently required, the agency said. If the changes are adopted, states with their own OSHA-equivalent safety agencies would be expected to enact similar revisions.

“As long as an employer fails to comply with its ongoing duty to record an injury or illness, there is an ongoing violation of OSHA’s recordkeeping requirements that continues to occur every day employees work at the site,” OSHA said. “Therefore, OSHA can cite employers for such recordkeeping violations for up to six months after the five-year retention period expires without running afoul of the Occupational Safety and Health [OSH] Act’s statute of limitations.”

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 federal agency said it intended to overturn the holding in Volks II in announcing the proposed rule. “Accurate records are not simply paperwork, but have an important, in fact life-saving purpose,” OSHA Assistant Secretary of Labor Dr. David Michaels said. “They will enable employers, employees, researchers and the government to identify and eliminate the most serious workplace hazards — ones that have already caused injuries and illnesses to occur.”

Businesses have expressed opposition to the proposed changes and may challenge OSHA’s final action in court. Although the outcome of court cases always is uncertain, it would appear the agency faces a high hurdle in overcoming the court’s conclusion 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.”

Asserting that governing federal statutes do not mandate them, OSHA has not scheduled public hearings on the proposed rule. However, the agency is taking comments through September 28. Remarks may be submitted electronically at http://www.regulations.gov. Reference Docket No. OSHA-2015-0006 and include the title of the rulemaking, “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.”

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

June 5, 2018

Maine’s New Recreational Marijuana Law Permits Employers to Enforce Policies Restricting Use

June 5, 2018

Maine’s new recreational marijuana law permits employers to enforce workplace policies restricting the use of marijuana and to take disciplinary action in accordance with those workplace policies. The new law, which took effect on May 2, 2018, replaced one that had been the subject of controversy, particularly with regard to certain... Read More

May 14, 2018

Georgia Bans Hand-Held Devices While Driving

May 14, 2018

Georgia has become one of 16 states in the country that bans the use of hand-held devices while driving. Governor Nathan Deal signed “Hands-Free Georgia Act” (House Bill 673) into law on May 2, 2018. The new law takes effect on July 1, 2018. The Act makes it illegal for drivers to “physically hold or support, with any part of his or... Read More

April 24, 2018

Iowa Amends Tough Drug Testing Law to Lower Standard for Positive Alcohol Tests

April 24, 2018

Beginning July 1, 2018, private employers in Iowa may take action based on an employee’s alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. The lower standard was enacted under a 2018 amendment to the Iowa drug testing law (Iowa Code Section 730.5). Prior to the amendment, employers could not take action... Read More

Related Practices