In November 2006, OSHA issued citations to Volks Constructor alleging failures to record some workplace injuries between January 2002 and April 2006. In April 2012, the U.S. Court of Appeals for the District of Columbia vacated OSHA’s citations as untimely. Some questions continue to linger about the case and the recording of workplace injuries and illnesses. Here are some answers to questions you might have about the impact the Volks Constructor case might have on your workplace.
Question: You are a company manager. During a casual conversation with an employee, he mentions a workplace injury that occurred 8 months before, but during the same calendar year. Although he never previously mentioned the injury to anyone at the company, you now realize that a recordable case occurred and is not on the log. True or false: Because the OSHA statute of limitations is only 6 months, you may ignore the omission.
False. You have now “receive[ed] information that a recordable injury… has occurred” within the meaning of § 1904.29(b)(3), which triggers the 7-day recording period. You must, within 7 days, enter the case on the log and complete a Form 301. If you don’t, OSHA may issue a citation within 6 months of this failure to record. The Volks decision will be no obstacle because in that case, the parties agreed that the date of receipt of information was the injury date. Your case is different.
Question: While performing the year-end log review required by § 1904.32(a)(1), you come across a document indicating that 8 months previously, an employee who was injured at work had incurred days away. The case is on the log but the entry reflects only medical treatment. True or false: Because the OSHA statute of limitations is only 6 months, you may ignore the inaccuracy.
False. Section 1904.32(a)(1) requires that after performing the year-end review, you must “correct any deficiencies identified.” The company can receive a citation if you don’t. And if a company executive with this knowledge certifies that the year-end Form 300A summary is “correct and complete” (as is required by § 1904.32(b)(3)), the certification will be false and the certifier personally could be criminally prosecuted under OSH Act § 17(g) or 18 U.S.C. § 1001 (the False Statement Act), or both.
Question: You come across a document that indicates that an unlogged recordable injury occurred in the previous calendar year, and the previous year’s Form 300A summary was innocently certified as correct. True or false: Because the OSHA statute of limitations is only 6 months, you may ignore the omission.
False. The injury is a “newly discovered recordable injur[y]” within the meaning of § 1904.33(b)(1), which requires that you “update” a past year’s log to “include” such injuries. You are not required to update the Form 300A summary or the Form 301 report, however. Id. at (b)(2) & (3).
Question: An unguarded machine now is in use because its guard fell off 9 months before. True or false: Because the OSHA statute of limitations is only 6 months, you may ignore the omission.
False. A physically violative occurrence – current employee exposure to a currently missing guard – exists now. As the Occupational Safety and Health Review Commission held in Central of Ga. R.R., 5 BNA OSHC 1209, 1211 (OSHRC 1977), “it is of no moment that a violation first occurred more than six months before the issuance of a citation, so long as the [cited violations] … occurred within six months of the citation’s issuance.”
Question: Of all the employees hired in 2007, you find that only one did not receive a type of OSHA-required training. The employee has been continuously performing the job for years. True or false: Because the OSHA statute of limitations is only 6 months, you need not train him now.
False. Again, there is now a physical occurrence that is now violative – the current presence of a currently untrained employee in a current zone of danger. That means that any citation would be timely. That it also represents a continuation of a previous violation is irrelevant.
Question: It now is mid-August. During the previous January (the busy season), you slacked off on examining injuries for recordability. In early August, you find that a very large number of the January injuries were recordable. OSHA stops by in September, but you still have not logged the January cases. You nevertheless tell the OSHA inspector that the log “proves” that the plant had a “wonderful” injury record during the January busy season, and you personally point the inspector to the lines on the log that should – but don’t – contain the January injuries. The inspector decides to cut short the inspection “because of your good injury record.” True or false: You might go to prison.
True. The False Statement Act, 18 U.S.C. § 1001, makes materially oral false statements to OSHA inspectors a federal crime, and the Justice Department might conclude that you made just such a statement. And if at year’s end you certify the log summary without including on the log the January recordables that you found, the government will have another reason to prosecute you – for false certification.
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Question: Your company commits a willful violation of a standard that causes an employee’s death. OSH Act 17(e) criminalizes such violations. Eight months pass. True or false: The company cannot be criminally prosecuted.
False. The applicable statute of limitations (18 U.S.C. § 3282(a)) for crimes is 5 years.
Question: You incur recordable injuries in January and in August, OSHA issues a citation for not recording these injuries. In November, a judge throws out the citation, citing Volks. True or false: You are now home free.
False. When you do the year-end review of the log, you will be aware of the unrecorded cases that had been alleged by the now-vacated citation, and you will be required to put them on the log, according to Section 1904.32(a)(1). If you don’t, the company could receive yet another citation, which this time could allege “willful” violations. And if you certify the log summary as correct, you may find yourself indicted.
Question: OSHA’s national emphasis program for your industry makes inspections dependent on the injury rate reflected on the employer’s logs. You decide to evade inspection by knowingly leaving enough recordable cases off your log (including one in which an employee was hurt while fixing a machine without lockout) to bring your rate under the inspection-trigger threshold. An OSHA inspector comes by, looks at your logs, calculates the injury rate and leaves. Eight months pass. True or false: Because the OSHA statute of limitations is only 6 months and OSHA has not re-appeared, your scheme has worked and you will receive no citations.
Arguably false. OSHA might argue that the limitations period should be equitably tolled on the ground of fraudulent concealment. Volks did not present such a question. You may win but, because the key word is “arguably,” you may well find yourselves living the old curse: May your life be filled with lawyers.
Arthur G. Sapper argued the Volks case. He is a partner in the OSHA Practice Group of McDermott Will & Emery, a former deputy general counsel of the Occupational Safety and Health Review Commission and a former professor of OSHA law. He has participated in numerous audits and cases involving OSHA injury recordkeeping, and can be reached at 202-756-8246 or [email protected].
This article is only for educational purposes and to provide a general understanding of the law, not legal advice about actual cases. Questions about actual cases should be directed to an attorney.