Safety and OSHA News

New ruling: How far back can OSHA look for recordkeeping violations?

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)

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  1. I’m all for limiting the power of OSHA to cite only justifiable violations, but this ruling is sheer nonsense. The argument of the court is that the intent of the regulatory requirement to maintain records is that the records simply be present; not that they be complete and accurate. According to the court, as long as my records are available for review then OSHA must review them within six months to verify their accuracy? That is foolishness, even if you agree OSHA often oversteps their appropriate authority. For an issue that involves direct employee exposure, it is appropriate to limit citation to a six month time frame: for records issues, if the employer misrepresented something in their records (accidentally or deliberately) then it is still wrong, throughout the duration of the required period to maintain the record. And if inspection of the record to assure accuracy and appropriate records is not permitted, what exactly is the point of requiring the record to be maintained?

  2. And yet for possible toxic chemical exposures and injuries we have to keep records for at least 40 years even if the person died. I do not disagree with keeping this type of record for a extended period of time to protect the organization and help injured staff. My better half died in 2007 and was the last person in a class action lawsuit from toxic substance exposure that destroyed their lungs when the death occurred the lab where the exposure occurred and the chemical company were not called into account and OSHA was just starting back then.

    If a company by using a product becomes liable there needs to be records that in all likelihood if they did their jobs right those records’ may deflect the legal action to the manufacturer usually that is where the responsibility belongs.

  3. Six months is not a reasonable time for OSHA. The 300 logs are for 12-months. Does that mean that the first 6-months are freebies? The only way that OSHA will ever be able to cite an employer is if OSHA identifies the violation during an inspection of pursuant to an injury. This is not reasonable. However, I envision businesses de-emphasizing accident reporting and being careful only to ensure that recordkeeping is available for five years (however inaccurate it is).

  4. I agree with Hank, especially the last sentence!

  5. I agree having a reasonable time limit of 6 (or 12) months. Company’s are required to report, inspect, and correct, or impliment new standards all with tight timelines. We are given these timelines for a reason to ensure timely correction to potential hazards. With this in mind, citing an ommitted injury from 5 years ago failed to correct the issue in a timely manner.

    It should be considered that OSHA recieves plenty of funding through various inlets and should manage their responcibility with-in their budgets. In addition, the foolishness is brought to light in thinking those keeping the records from 5 years ago to today is absurd. The turn around in employees, including front office employees handling recordkeeping and senior management, is approximately 2.5 years. To come into a company and revamp the policy and enforce OSHA standards only to be cited for anothers error 5 years ago is unacceptable. You cannot ACCRUATELY define the violation and identify the circumstances beyond certain timeframes. Who knows the situation? Should OSHA assume its knows why the ommisions were made? To allow that a violation could be cited 5 years after an occurance could be abused by fining a company for an old photo on marketing materials, websites, et cetra. Perhap it clearly shows a violation. Should the company be cited then?

    There is a key term missed in the discussion: willful. Willful omission of injuries should be a federal and / or civil offense and carried out in the court of law by the injured under their statutes of limitations; not by OSHA whom regardless of intentions would have a one sided view. The “judge” should not recieved the monitary settlement of a fine.

  6. I can understand the need to record, If I looked at a company that did not then I would look at the accident prevention program as well. From years of running a safety program I learned of many dynamics and looked for patterns in many area. Reports are tools, missing data are a sign to me that the company does not care about its employees. The best asset is the empoyee , indeed build the foundation, rules are set for a reason.

  7. I think everyone is truly missing the point here. I mean think about it. The issue here was recording a recordable accident. They didnt do it. With any crime or civil violation there are statutes of limitations. OSHA was over stepping their boungs trying to set their own limitations. These limitations were set for them by congress for a reason. That being said, keeping our records for 5 years is required and mandatory. Errors in those records or not keeping complete records you can still be cited for at anytime that OSHA inspects your records.

  8. Why does OSHA not cross-reference all injuries from workman’s comp to assure all recording is being done that is reported with workman’s comp? If injuries are not reported to workman’s comp, there would be no access would there? How does owner control insurance companies work with recording and reporting injuries? And how does OSHA check these?

  9. I worked on a job where there were many violations, but no injuries… Can I still report my company, this was six months ago and the job is probably over


  1. […] The DC Circuit said OSHA’s error was not citing Volks for the loss or destruction of a record. Instead, the agency cited the employer for failing to create a record in the first place. […]

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