OSHA Announces Rule Clarifying Workplace Injury Reporting That Imposes ‘Continuing Obligation' on Employers to Maintain Injury Records for Five Years

Alerts / December 20, 2016

On Dec. 16, 2016, the Occupational Safety and Health Administration (OSHA) issued the latest major record-keeping rule change that the agency had set its sights on during the final year of the Obama administration. Pursuant to the new rule, an employer has a “continuing obligation” to make and maintain accurate records of each recordable injury and illness. As a result, employers who fail to properly record workplace injuries and illnesses can be issued citations for unrecorded injuries and illnesses for up to the full five-year record-retention period for which such records must be maintained.

The final rule would become effective on Jan. 18, 2017 – the last week of the Obama administration. The text of the rule confirms that it is adopted “in response to a decision of the United States Court of Appeals for the District of Columbia Circuit.” In that 2012 case, AJM LLC v. Secretary of Labor (Volks), the D.C. Circuit 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. OSHA never appealed that decision, and instead instituted rule-making changes it claimed would “clarify” that the agency could cite employers for record-keeping violations for up to five years after the initial violation. OSHA posited that the violation “continued” indefinitely and tolled the six-month statute of limitations because each day an injury or illness was unrecorded, the violation occurred again.

OSHA claims that the new rule merely clarifies the status quo. OSHA Administrator David Michaels said in a Dec. 16, 2016, statement that the rule “simply returns us to the standard practice of the last 40 years.” OSHA further claims that the final rule itself adds no new compliance obligations, and does not require employers to make records of any injuries or illnesses for which records are not already required.

But the regulated community disagrees. The U.S. Chamber of Commerce’s Executive Director of Labor Law Policy, Mark Freedman, stated that “[t]he court in Volks was unequivocal that the statute of limitations for issuing citations on recordkeeping violations is six months despite OSHA’s attempts to say six months means five years.” As a result, the rule currently stands on tenuous grounds. The rule could be overturned by Congress through the Congressional Review Act, if the Republican House, Senate and incoming President agree. Moreover, due to the decision in Volks, any challenge to the rule in federal court or before the Occupational Safety and Health Review Commission would have binding precedent on which to base its challenge. In addition, the Trump administration could merely elect to delay enforcement of the rule.

Nevertheless, employers are wise to plan to now maintain injury and illness records for five years. Barring a successful challenge, employers will be bound by the rule on Jan. 18, 2017. If the rule goes unchallenged, employers could be subject to numerous, years-old citations that they would have to defend with stale evidence. For more information, contact Darren Crook at or 216.861.6823.

Authorship credit: Darren A. Crook

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