OSHA’s New Rule to Clarify Recordkeeping Obligations

OSHA Proposes New Rules to “Clarify” Recordkeeping Obligations

On July 29, 2015, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a proposed rule to “clarify” employers’ recordkeeping obligations under 29 CFR § 1904. Comments are due by September 27, 2015.

OSHA’s position long has been that employers must keep accurate recordkeeping logs for the entire five-year retention period imposed by its regulations. That is, a failure to properly record an incident is 2012 would be grounds for a violation should OSHA discover the omission today.

However, employers have argued that the statute that created OSHA imposes only a six-month statute of limitations. That is, a failure to properly record a recordable incident can be cited only if OSHA discovers the omission within six months of the date the employer was obligated to record the incident – a position endorsed by the U.S. Court of Appeals for the D.C. District in AKM, LLC, dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

The proposed rule effectively would overturn Volks.

OSHA proposes to amend the recordkeeping rules as follows:

  • Amend 29 CFR §1910.29(b)(3) to state that failing to properly record a recordable incident within seven days “does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire [five-year] record retention period described in § 1904.33.”
  • Amend 29 CFR §1910.32 to impose an annual duty on employers to review and verify 300 logs for accuracy before they post the 300A Annual Summary.
  • Amend 29 CFR §1910.33 to impose a continuing obligation on employers to correct any omissions during the five years from when the incident should have been recorded.
  • Amend 29 CFR §§1910.35 and 1910.40 to require employers to provide “accurate” recordkeeping logs to union representatives or OSHA officials, when requested.
  • Posted August 7, 2015
  • The proposed rule quickly has drawn criticism, chiefly because it essentially makes recordkeeping a “continuing violation, something the Occupational Safety and Health Review Commission and the courts already have reserved to situations where an employer leaves a hazardous condition unabated for years – and that the Volks court expressly rejected. As such, a legal challenge to OSHA’s “clarified rules” seems likely if and when they become final.
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