OSHA Enforcement
Are recordkeeping amendments an endrun around the courts

Are recordkeeping amendments an end-run around the courts?

Amendments to OSHA’s Recordkeeping Rule: A Power-Hungry End-Around of the Courts or Just Plain Sensible Action?

Is this newly proposed rule from OSHA sensible and reasonable? Or is OSHA an out-of-control, power-hungry regulatory agency seeking to exceed its mandate? Or maybe there’s some middle ground?

For years, OSHA issued citations for recordkeeping violations during the five-year window mentioned in 29 CFR 1904.33. This all became more interesting on Nov. 10, 2006 when OSHA issued a number of recordkeeping citations against Volks Constructors (Volks) and the company appealed them.

OSHA requires many companies to keep records of injuries and illnesses in the well-known forms 300, 300A and 301. And, if you’re required to do it but don’t, or make an error, they may cite you.

It seems straight-forward and simple enough, but that’s not how it’s turned out. The issue wound up being deliberated on by the D.C. Circuit Court of Appeals in 2012 and OSHA recently issued a clarification that runs counter to that court decision.

This bit of high drama between the safety regulator and the courts would be interesting at any time, especially to folks like us in safety. But it’s even juicier now, at the beginning of the (exceptionally l-o-o-o-o-ng) presidential election campaign season, as we all become “lay-experts” on all matters of the U.S. Constitution, the relation between the various branches of government, the proper role and size of government and the nuances of persuasive political debate. What else are we to talk about while waiting for the next controversial statement from Donald Trump, right?

So, with no further ado, let’s dig into this issue a little deeper, taking a quick look at the facts and then getting your opinions.

Recordkeeping Requirements, Volks, and the Recent OSHA Clarification

In 29 CFR 1904, OSHA lays out its requirements for keeping records of injuries, illnesses and fatalities that occur at work.

As part of those requirements, 29 CFR 1904.33 requires companies to keep those records for five years. Here’s exactly how it’s phrased in 29 CFR 1904.33(a): “You must save the OSHA 300 Log, the privacy case list (if one exists), the annual summary, and the OSHA 301 Incident Report forms for five (5) years following the end of the calendar year that these records cover.”

To this point, it all seems simple enough.

However, things begin to get interesting when you take a look at 29 U.S.C. § 658[c]), which sets a six-month statute of limitations on OSHA for citations of violations (“No citation may be issued under this section after the expiration of six months following the occurrence of any violation.”).

Savvy readers out there may see where this is headed, but we’ll continue to spell things out step-by-step.

For years, OSHA issued citations for recordkeeping violations during the five-year window mentioned in 29 CFR 1904.33. This all became more interesting on Nov. 10, 2006 when OSHA issued a number of recordkeeping citations against Volks Constructors (Volks). Although OSHA and Volks settled on a number of these citations, five were left outstanding.

The tussle between Volks and OSHA on these five citations had many stages, and we won’t get into all the details here. However, if you’re curious, you can read a very nice summary at the Harvard Law Review (a hat-tip to HLR).

Ultimately, in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012) ("Volks"), the D.C. Court sided with Volks. As explained in the Harvard Law Review article referenced above, the court decision argued there were two separate duties imposed by OSHA, each with its own separate time frames:

“…the court read the Act to impose (or allow the Secretary to impose) two duties: First, 'employers must make records of workplace injuries' in accordance with regulations promulgated by the Secretary; a violation of this duty was subject to citation only within six months of its occurrence. Second, 'once an employer has made such a record, it must also retain it for as long as the Secretary demands . . . here, for five years.' OSHA only cited Volks for the failure to create a record, but it did so far too late. Explaining that the Secretary’s theory impermissibly conflated the two distinct duties imposed by the Act and rendered section 9(c)’s six-month clock superfluous, the court held that the citations must be vacated as untimely.”1

If you are not a lawyer but only “play one on TV” like me, this small excerpt gives you a nice window into the difficult world of law (and should earn them some respect as well). It also shows you how issues that may seem like arguing about how many angels can fit on the head of a needle can have a serious real-world effect.

Now, let’s fast-forward from 2012 to July 29, 2015. In 80 Fed. Reg. 45116, Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness, OSHA proposed an amendment to “clarify” the situation. Their goal is to be able to issue citations for recordkeeping violations throughout the five-year period (and not be limited to six months in some cases).

As they state:

“The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so. The proposed amendments consist of revisions to the titles of some existing sections and subparts, and changes to the text of some existing provisions.”

You can read the newly proposed regulation, complete with the amendments discussed, here. The comments period for this proposed change lasts until September 28, 2015. So, if you’ve got some strong opinions you want to express to OSHA about this, you’ve got a chance but don’t forget the clock is ticking.

And that gets you up to date.

Your Turn: What Do You Think?

If you looked at the top of this webpage before reading, you noticed that this column is titled IdeaXchange. That’s because EHS Today (and I) want to hear your ideas and thoughts.

So go ahead, lay ‘em on us below. What do you think? Is this newly proposed rule from OSHA sensible and reasonable? Or is OSHA an out-of-control, power-hungry regulatory agency seeking to exceed its mandate? Or maybe there’s some middle ground?

Let us know what you think.

Notes:

1. Administrative Law – Chevron Deference – D.C. Circuit Holds that Department of Labor’s Interpretation of Statue of Limitations in Occupational Safety and Health Act Is Unreasonable (December 20, 2012). Harvard Law Review, Volume 126. pp 630-631.

About the author: Jeff Dalto is the senior customer success specialist at Convergence Training, a training solutions provider for manufacturing, safety and more. You can read more from Jeff at the Convergence Training blog, which focuses on manufacturing, safety an training issues.

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