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A new court ruling significantly changes how far back OSHA can look for violations of its standard on recording employee injuries.
In a case involving Volks Constructors of Prairieville, LA, the Occupational Safety and Health Review Commission (OSHRC) had ruled in 2011 that OSHA can look back five years for recordkeeping violations.
But now the U.S. Court of Appeals for the District of Columbia Circuit has issued a decision that cuts the period down to just six months.
OSHA had fined Volks $13,300 for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006.
Volks appealed the citations, because under law, “no [OSHA] citation may be issued after the expiration of six months following the occurrence of any violation.” November 2006 was at least six months after the last unrecorded injury at Volks.
OSHA noted that its regulations require companies to save all injury documentation for five years from the end of the calendar year the records cover.
So the agency categorized the recordkeeping errors as “continuing violations” that prevented the statute of limitations from expiring until the end of the five-year document retention period.
But the Circuit Court didn’t see it that way. It said Congress’ intent in the Occupational Safety and Health Act was for OSHA citations to be issued within a six-month period after a violation takes place. The court said OSHA had misconstrued the five-year record retention requirement, and as a result, mistakenly claimed that the agency could cite recordkeeping violations five years after the fact.
The court gave an example in its opinion of how long OSHA has to cite a company for a violation of the injury recordkeeping rules. If an injury is reported to the employer on May 1, a company has seven days to record the injury. The deadline for that is May 8. OSHA can issue a citation for six months after May 8 (up to November 8 of the same year) for failing to record an injury in a timely fashion.
But what about the five-year record retention period? Companies aren’t off the hook for that. In fact, the court noted that companies are required to keep injury records for five years. If a company loses or destroys a record before the five years is up, that too is a violation.
That being said, the court points out OSHA’s error in this case. OSHA didn’t cite Volks for the loss or destruction of a record it never made. OSHA only cited Volks for failing to create a record, but it did that too late.
The take-home for businesses: OSHA won’t back down on checking for recordkeeping violations. But this may change what inspectors look for and what OSHA issues fines for. Specifically, expect more emphasis on keeping injury records for five years.
What do you think about the court’s ruling? Let us know in the comments below.
(AKM LLC dba Volks Constructors v. Secretary of Labor, U.S. Crt. of Appeals D.C. Circuit, No. 11-1106, 4/6/12)