OSHA OKs Citations for 5-Year-Old Violations

Posted January 6, 2017 at 12:56 pm

A new OSHA rule has extended the citation window for companies charged with violating agency regulations from six months to five years; it also overturned a court ruling upholding a six-month limit.

With time running out on the administration of President Barack Obama, the Occupational Safety and Health Administration (OSHA) issued the last of three major recordkeeping rules the agency was pressing to complete before Jan. 20 – Inauguration Day.

The final rule, which overturns a 2012 federal appeals court ruling commonly called Volks II, was released. The rule takes effect Jan. 18, but Congress still could overturn it by invoking the Congressional Review Act, if the House, Senate and president agree. The administration of President-elect Donald Trump could also try to delay enforcement of the rule.

The 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.

The U.S. Court of Appeals for the District of Columbia Circuit concluded in 2012 that OSHA couldn't 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 didn't appeal the decision.

Instead, in 2014 the agency announced it was starting a rulemaking. The rulemaking would “clarify” that the agency could cite employers for recordkeeping violations for up to five years after the initial violation, if the employer had never recorded the injury or illness.

OSHA said the violation continued because each day an injury or illness remained unrecorded, the violation continued. OSHA's explanation of the rule said the agency made few changes from the version of the rule it presented for public comment in 2015.

One revision clarified that when a business changed ownership, the new owner isn't responsible for prior recording work-related injuries and illnesses.

In the rule's preamble, OSHA defended the regulation and the legal reasoning supporting it.

This rule, OSHA said, is intended to clarify that if an employer fails to record an injury or illness within seven days of becoming aware of the incident, as the agency requires, the obligation to record continues. An unrecorded incident is a continuing “occurrence” of the ongoing violation.

The position, OSHA said, is consistent with the Occupational Safety and Health Act's Section 9(c) that says no citation may be issued more than six months after the occurrence of any violation.

The Volks II decision from Judge Janice Rogers Brown in 2012 took a different position.

“Despite the cloud of dust the Secretary (of Labor) kicks up in an effort to lead us to her interpretation, the text and structure of the Act reveal a quite different and quite clear congressional intent that requires none of the strained inferences she urges upon us,” Brown wrote for the appeals court.

The rule is the third important recordkeeping regulation issued by OSHA in the past three years.

The two earlier completed final rules required employers starting in 2017 to submit the injury and illness information electronically to OSHA, thus enabling the agency to post the results online. The agency also expanded the list of which industries were considered low-hazard and not required to keep injury and illness records.