Can OSHA fine companies for 5-year-old recordkeeping violations?
November 29, 2010 by Fred HosierPosted in: Injuries, OSHA news, Recordkeeping, Special Report, What do you think?, Who Got Fined and Why?, enforcement
Scenario: A company failed to record an employee’s injury that happened more than four years ago. Can OSHA fine the company for that four years later?
Under the agency’s current practices, it would issue a recordkeeping citation and fine a company.
In 2006, OSHA inspected Volks Constructors’ Prairieville, LA, facility.
OSHA issued citations because Volks failed to record a number of injuries on its OSHA logs. The earliest injury omission was from Jan. 11, 2002, more than four years before the inspection.
Volks appealed, and now the Occupational Safety and Health Review Commission (OSHRC) has taken up the case.
Lawyers for Volks argue that the OSH Act states, “No citation may be issued … after the expiration of six months following the occurrence of any violation.”
The National Federation of Independent Business is arguing that allowing OSHA to look back as many as five years for recordkeeping violations is an unfair burden on small- and medium-size businesses.
OSHA claims that any inaccurate recordkeeping entry violates the law until the date it’s corrected. There is a five-year record-retention limit, so if the records are older than that, OSHA can’t issue fines.
Should OSHRC decide that the limit is actually six months instead of five years, companies would not be fined for any recordkeeping omissions that are older than six months.
An OSHRC decision is expected in April 2011.
What do you think the limit should be on OSHA’s ability to look back and find older recordkeeping violations? Six months? One or two years? Five years? Let us know in the Comments Box below.
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Tags: injury logs, OSHA fines, OSHRC, Recordkeeping, Volks Constructors
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November 29th, 2010 at 7:54 am
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November 30th, 2010 at 8:44 am
6 months should be the max.
OSHA has so many regulations and reporting requirements that we are constantly learning on the job.
We may learn something today that we didn’t know 5 years ago.
In stead of helping business keep workers safe, OSHA plays a game of “what can I find to fine you on today?”
In this situation, they should tell the company that this was incorrectly done 5 years ago and if you are doing it correctly now - okay - if not, start doing it correctly.
November 30th, 2010 at 9:15 am
I think 2 years is a sufficient time for document retention.
November 30th, 2010 at 10:13 am
I thought record keeping was to avoid this from happening. If you only need 6 months of records, you just made my job a whole lot easier maintenance wise!
November 30th, 2010 at 10:25 am
Six months. OSHA should issue a warning letter stating the infraction and the need to correct it. However, that’s not what OSHA is about these days. It’s all about the money. It seems pretty clear to me: “No citation may be issued … after the expiration of six months following the occurrence of any violation.” The five year record retention limit tells us how long we have to keep records. Period. Leave it to OSHA to twist the rules in their favor. The Occupational Safety and Health Review Commission is supposedly an independent agency. We’ll see.
November 30th, 2010 at 10:38 am
6 months
November 30th, 2010 at 10:42 am
OSHA should only have a 6 months. less is better.
November 30th, 2010 at 10:47 am
Six months is sufficient. OSHA should be in business to help companies improve rather than fining them.
November 30th, 2010 at 11:23 am
I think 2-3 years is enough.
November 30th, 2010 at 11:40 am
There are too many variables that would need to be ironed out to easily say 6 months or 1 year. Is it 6 months after the close of the year? What if a claim goes beyond that year? Is it 6 months beyond the close of the claim; there is a admin nightmare. What if the case gets re-opened? I’d have to agree with an earlier comment that 2 years from the 5 years should be sufficient.
November 30th, 2010 at 12:11 pm
OSHA requires that a employer have 6 days to record the recordable injury from the date the company became aware of the injury.
on the 7th day you are in violation of the law if you did not record it by this time. My thinking is that the 6 month limit starts counting on the 7th day after the incident. So 6 months from the 7th day of not recording is the time when your are in violation, after 6 months pass no citation should be issued. The 5 year retention only states how long to retain recordable or recorded incidents and nothing more.
November 30th, 2010 at 12:21 pm
One Year limitation is sufficient for non-reporting injury for a citation. OSHA can decide as they wish, Using the General Duty Clause gives them power to site you for any violation no matter how old, or what it may pertains to.
November 30th, 2010 at 12:50 pm
6 Months for Agency fines, since this reflects current practice. Agencies, such as OSHA should not be able to fish for discrepancies in order to line their coffers.
However, the 5 year record retention requirement is important because the damage to employees may take longer to manifest itself. Injured workers have the right to learn about causes and take legal action where needed. Companies & organizations need to be able to document their actions and legitimately protect themselves from liability.
November 30th, 2010 at 12:52 pm
Seems to me they should make it 1 year, and stop worrying about the paper work as much as they do the actual work place safety violations. I see the woefully small fines many companies receive and wonder what they think it will abate. These large companies simply add it as a cost of doing business. It compares to fining a pro athlete making 10 million a year, $5,000 for doing something wrong. It just isn’t a big deal to them. The paper work should be the least of their concern, how many injuries or deaths does it really save?
November 30th, 2010 at 12:56 pm
I believe OSHA has a higher purpose and should focus on current issues which may endanger employees rather than concern themselves with old news. Even if an OSHA agent was attempting to build a case with evidence of poor record keeping the impact of a five year old record seems insignificant and could have been a clerical error with someone whom is no longer employed. Granted the owner or president must sign the log however, is this time well spent? I think not. The signatory should know who and what the injuries took place but some a re very minimal. I guess if the omission was a fatality or serious injury which the company was attempting to hide the record may have a bearing. Still, is this time well spent?
November 30th, 2010 at 1:05 pm
It is easy to say 6 months should be the limit. But, If you have failed to record an injury, you are cheating the system in order to achieve a lower incident rate. Setting the limit at 6 months will only encourage some employers to not record incidents at all, what’s the harm they can’t be fined after six months. The citaition limit should be the same as the retention time, wheteher that is 2 years or 5 years. If you have not reviewed and corrected your records in that time you are in willfull violation anyway.
November 30th, 2010 at 1:22 pm
If the 6 month limit gets the thumbs up I believe OSHA will then start inspecting our facilities much more frequently to up their chances of imposing a fine… I mean remeadeating our failure to keep accurate record (although I can’t imagine any company overlooking listing an injury on their log by accident). We are all very busy but that takes like 5 seconds to record, and when you compare that amount of time to the paperwork you complete with the employee its nil.
November 30th, 2010 at 3:35 pm
I was under the obviously mistaken presumption that the reason OSHA had extended the 3 to 5 year window for recordkeeping was to point out serious repeat offenders. However OSHA may view it, I do not see recordkeeping in itself falling into the category portrayed by OSHA when they made this ruling. If a company has current recordkeeping issues and they fall prey to OSHA so be it. However if a company has corrected its procedures to comply for at least the last reporting year it should be sufficient.
November 30th, 2010 at 3:58 pm
What happens when the employee re-injuried the same part, ie knee? If there is no record after six months, where is the system then? Another law suit, or more physical therapy cost, or medical disability/termination? Or is there another problem with the work site, warehouse or office that should be reviewed or evaluated.
December 1st, 2010 at 12:37 pm
I think a better question is what purpose do the records actually serve? From my experience recordable injuries have more to do with luck and liability concerns of the treating physician than severity of injury or quality of a safety program. Also, because records are frequently used by companies to screen contractors, they tend to penalize employers who record injuries properly.
If present recordkeeping criteria meets OSHA’s needs, they need to restrict its access to employees, company representatives and job applicants. If the information cannot be accessed by outside entities to judge safety program quality, OSHA will probably start getting accurate data.
As for information that should be available to judge the quality of a safety program, I want a recordkeeping system that shows a proper ratio of injuries, near misses and unsafe conditions. To go with that, I want another system that shows completed corrective actions, working corrective actions, and pending corrective action that correlates with the recorded injuries, near misses, and unsafe conditions.
December 1st, 2010 at 1:03 pm
OSHA should not be able to go back 5 years. What a burden it will be on all industries.
December 1st, 2010 at 3:36 pm
For accuracy, OSHA is required to cite within six months of the time they became aware of a violation. Record retention is required to look back 5 years, so the minute they walk through the door or start looking at your records would start the 6 month clock. The reason that OSHA is looking at the records is that usually something else caused a visit. Records checking is a standard practice during an investigation, this reveals past issues that may be the cause of the of the current issue.
OSHA does not have the time or staffing that would allow more frequent checking. I know many would prefer there to be no OSHA or mandatory requirements that make our workplaces safer. I personally like OSHA, an active safety agency and hefty fines encourages many employers to do what is RIGHT. There are still far to many employers out there, that have multiple fatalities, disabling and debilitating injuries every year. The only thing they seem to understand is bottom line. Fines and penalties are what makes some employers pay attention to safety. It also provides me with a secure job.
December 3rd, 2010 at 9:16 am
KC - I agree with your view of OSHA to a point. Yes, there will always be the companies that flagrantly and willingly ignore OSHA rules and bypass approprite safety measures. These companies should be hit hard by OSHA. I think what bugs most people about OSHA is their shift from collaboration with the average business to one of confrontation. Their goal now is to separate a business from its money. And they will dig and dig until they find something. Because the regulations are so extensive and often complex, they usually don’t have to dig too far to find something, usually trivial, to issue a fine over. I believe most employers do what’s right by their employees safety-wise. But no one is perfect and OSHA demands perfection. It’s not realistic.
December 3rd, 2010 at 10:28 am
OSHA only knows 2 states of equipment… In compliance or out of service… Never mind it may be only an I.D. tag… Shut down your process send all your people home, oh and here’s your fine….
I’m all for workplace safety… Been in the business >25 years… But OSHA does go way overboard in some cases. Then they hit you with astronomical fines so you’ll be forced to get counsel to get them lowered, but you lose the difference in legal fees….
A little common sense would go a long way here……
Just my 2¢
December 3rd, 2010 at 10:38 am
I concur with KC’s comments regarding OSHA, and unfortunately, there appears to be some truth in PO’s suggestion that there are fines that appear to be levied to help fund the agency. The bottom line is that complying with OSHA regulations can be a cost and a burden, especially for small businesses, but without OSHA there are too many firms that would give little effort to keeping workers safe because they are driven by the bottom line, and safety is not a profit center. If citations could not be levied for record violations after six months, I am sure that there are firms that would determine that the odds would then be in their favor, and that they would be able to escape being caught for violations.
December 14th, 2010 at 9:39 am
OSHA should be able to access and evaluate records up to the retention time limit for the records, or for the period of time since the last agency inspection. If records can not be evaluated past six months then there is no reason to have a five year retention plan.
As far as fines go, I would submit that a fine for a first offense should be excluded and be reserved for repeat violations. Recordkeeping should be the easiest part of a Safety Professional’s job and if they are struggling with that then there is probably much more risk lurking in the darkness.
January 11th, 2011 at 11:42 am
In California my company recieved a citation because an employee was hospitalized 3 weeks past the initial injury. We were told by Cal OSHA that there was no time limit on reporting a hospitalization of an employee following an injury. The case must be then reported immediately to Cal OSHA. Case in point-an employee is injured and 5 years later requires knee surgery. Employers are required to notify Cal OSHA of the hospitalization. We were told No Time Limit. David C-OSHA has become a revenue agency and has lost it’s focus on safety.
January 17th, 2011 at 10:44 pm
mimidunn,
Cal OSHA is a state plan which in itself means that it must be more stringent than Federal OSHA. I do not have expertise in Cal OSHA but your case does not seem to be unusual. Incidents which require hospitalization must be recorded on the Federal OSHA 300 log, but I am unaware of a requirement to otherwise notify the agency. Only in cases of multiple injuries or death would immediate notification be warranted.
February 23rd, 2011 at 11:56 am
I’m not sure about Fed-OSHA but in all state run OSHA programs such as Cal-OSH, SC-OSH and NC-OSH…the money from the penalties collected does not go to the agency itself. Depending on the state itself, 20-40% of the penalties go to the school systems in the county to which the infraction occurred. The rest goes back to the state government to disperse where it sees fit. Just my 2 cents for you.
March 22nd, 2011 at 8:11 am
One year max.