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ATTORNEY BLOG: OSHA may be expanding its recordkeeping requirements to match its five-year retention policy

By: Cressinda “Chris” D. Schlag, Esq.

During the first week of December, OSHA held a meeting with the Advisory Committee on Construction Safety and Health (ACCSH). The committee, which is comprised of representatives for employers, employees, and both federal and state public representatives, provides advice and assistance to OSHA on current and proposed construction standards. One primary focus during the ACCSH meeting was OSHA’s consideration of a proposed rule amending the current recordkeeping regulations to clarify that an employer’s duty to make and maintain accurate records of work-related injuries and illnesses is an “on-going obligation” during the statutory established five year retention policy.

OSHA’s plan to clarify the standard is in direct response to the United States Court of Appeals for the District of Columbia’s decision in AKM LLC v. Secretary of Labor (AKM), whereby the District Court held that a violation for an employer’s failure to properly record an injury or illness could only be issued within six-months of the day the employer failed to make the initial record. 675 F.3d 752 (D.C. Cir. 2012). By relying on the six-month statute of limitations for the issuance of citations, the Circuit Court specifically rejected the Secretary’s argument that a failure to record an injury or illness was a continuing violation and held that “[n]othing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.” In the wake of AKM, OSHA’s ability to cite employers for inaccurate recordkeeping has been limited to only the six-month window from when the employer initially failed to make a record.

OSHA’s consideration of a proposed rule amending current recordkeeping regulations to match its five-year retention policy, if enacted, would open the door for OSHA to cite employers for up to five years after an employer’s failure to record an injury or illness. While OSHA’s proposed amendments would not necessarily create any additional compliance obligations for employers, the extension of time for citing an employer for a violation significantly enhances an employer’s potential liability for recordkeeping errors. At the close of the meeting, the ACCSH made a formal recommendation for OSHA to issue a Notice of Proposed Rule Making for amending current recordkeeping regulations.

As an ongoing obligation for the five-year retention period could substantially increase employers’ liability for recordkeeping compliance, employers should actively watch for OSHA’s Notice of Proposed Rule Making and participate in the notice and comment period.

For more information on the ACCSH meeting, OSHA’s current recordkeeping regulations, or assistance in preparing a comment to the Notice of Proposed Rule Making, contact any member of the Burns White Occupational Safety and Health team.