August 4, 2015

OSHA Planned Rule Aims To Surmount Court Decision Over Time Limits On Recordkeeping Citations

OSHA plans through a newly proposed rule — which sources say will almost certainly be disputed — to overcome a key federal appeals court decision three years ago that killed a longtime agency policy stance that inaccurate OSHA logs continued to violate recordkeeping regulations every day the records remained erroneous, continuing to trigger the six-month time limit on potential citations against the employer.

Agency officials said Tuesday the proposed rule clarifies “the ongoing obligation to make and maintain accurate records of work-related injuries and illnesses.” The rule, set for publication in Wednesday’s Federal Register, has been on the rulemaking agenda ever since the controversial Volks decision on recordkeeping time limits. OSHA losing that case in the U.S. Court of Appeals for the D.C. Circuit meant throwing out recordkeeping citations dated six months or later than the alleged instance of a recordkeeping violation — partially hamstringing its power to widely enforce the rule.

OSHA says the newly proposed rule will clarify the employer’s obligation to maintain an accurate record of each recordable injury and illness throughout the five-year period during which the employer is required to keep the records. OSHA chief David Michaels argued in a press release Tuesday that work injury data are more meaningful than just collected information under the law.

“Accurate records are not simply paperwork, but have an important, in fact life-saving purpose,” he said. “They will enable employers, employees, researchers and the government to identify and eliminate the most serious workplace hazards — ones that have already caused injuries and illnesses to occur.”

OSHA back when the Volks decision came down decried the ruling as contrary to the purpose of the statute and regulations designed to ensure accurate records, and pledged in the regulatory agenda to have it reversed. OSHA explicitly named the decision, formally known as AKM LLC v. Secretary of Labor, as reasoning for the proposed rule issued this week. But the agency made clear it believes the proposed rule adds no new compliance obligations and “would not require employers to make records of any injuries or illnesses for which records are not already required.”

OSHA does not classify the rule as economically significant and the proposal did not apparently undergo the extensive White House budget office review required for major rules.
The regulatory agenda indicates that the Volks decision directly spurred the rulemaking, as OSHA wished to ensure clarity under the recordkeeping regulations of its position that “[t]he duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.” By contrast the appeals court panel found that a failure to accurately record an OSHA-log incident represented a discrete event that solely triggered the tolling on the statute of limitations (see related story). The court decision reversed a split ruling by the Occupational Safety and Health Review Commission.

But OSHA’s move to surmount the adverse appeals court decision through rulemaking will likely land the issue back in court, partly because industry legal counsel has argued that OSHA cannot through new regulations overturn the court’s interpretation of statute, which was effectively what Volks did. Employers can be expected to contest the time limits rule if OSHA eventually promulgates it, an industry attorney predicts. “There will eventually be a court challenge of this, just not immediately.”

The attorney who represented the employer in Volks, Art Sapper of McDermott Will & Emery, tells Inside OSHA Online that “OSHA cannot change the statute of limitations, which requires that a citation be issued within six months of the ‘occurrence’ of a violation.” Sapper notes that the court stated that, “Like the Supreme Court, we think the word ‘occurrence’ clearly refers to a discrete antecedent event — something that ‘happened’ or ‘came to pass’ ‘in the past.'” But he notes that under the newly proposed rule, citations could be issued more than six months after the last occurrence that triggered the duty to record. He also observed that much of OSHA’s preamble for the proposed rule was lifted from its brief to the D.C. Circuit, including statement that “concerns about stale claims have little bearing on OSHA recordkeeping cases” — a notion Sapper called “preposterous.”

“In the Volks case, one of the recordkeepers had died by the time OSHA issued its citation,” he says. “How much staler can you get than that?”

Public comments on the proposed rule are due Sept. 27. — Christopher Cole ()



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