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OSHA Offers 'Clarity' in Injury Reporting

Thursday, August 6, 2015

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Federal workplace safety regulators have published a proposed rule to aimed at clarifying employers' recordingkeeeping obligations.

Specifically, the Occupational Safety and Health Administration's new rule seeks to "clarify" an existing practice—that the agency can cite employers for up to five years for failing to document work-related injuries and illnesses in a "timely" manner.

OSHA issued its “Notice of Proposed Rulemaking” on July 28 stating that an employer’s obligation to make and maintain accurate records of each recordable injury or illness continues through the federal statutory period during which employers are required to keep them.

injured worker
© / mumininan

OSHA maintains that employers are required to keep accurate recordkeeping logs of injuries and illnesses for a five-year retention period.

Wording in the current law requires employers to list each work-related illness or injury on their yearly 300 Logs, which they have to keep on file for five years.

But while the agency can continue to cite them for not having the records for that five-year span, a 2012 court decision has prevented OSHA from continuing to cite employers for failing to make the initial report once six months has passed.

Need for a Change

In a statement about the amendment, OSHA also said that it was issuing the proposed rule “in light of the decision of the U.S. Court of Appeals for the D.C. Circuit in AKM LLC v. Secretary of Labor (Volks).

In that April 2012 decision, the court opined that OSHA had been citing employers wrongfully for failing to make the initial record when an injury or illness occurred.

The court wrote that while Congress had intended to require employers to keep those records for five years, the Occupational Safety and Health Act of 1970—which established OSHA—limits citations to violations incurred within the previous six months.

The court said that the six-month limit reflects a “quite clear congressional intent that requires none of the strained inferences (the Secretary of Labor) urges upon us.”

The ruling added: “We do not believe Congress expressly established a statute of limitations only to implicitly encourage the Secretary to ignore it.”

Records on Trial

An issue regarding the matter began in November 2006. OSHA had fined Louisiana-based Volks Constructors $13,300 for 67 recordkeeping violations. It also alleged that the company failed to log a number of injuries and illnesses within seven days as required by law.

However, those citations dated to incidents that occurred as early as Jan. 11, 2002—more than four years earlier.

Volks, a heavy industrial contractor based in Prairieville, LA, appealed to the Occupational Safety and Health Review Commission, an independent agency that reviews OSHA decisions. After a hearing, the commission upheld the citations in a 2-1 vote. Volks then appealed the decision in court.

©iStock / Nikada

OSHA has issued a "Notice of Proposed Rulemaking" that will allow the agency to cite employers for not recording illnesses and injuries for as long as employers are required to keep the records.

The government argued that all the violations for which Volks was cited were “continuing violations” and that “such violations continue every day that an unmet recordkeeping obligation remains unsatisfied.”

Both the dissenting commission judge and the court called that line of reasoning an attempt to “tie this straightforward issue into a Gordian knot.”

No New ‘Obligations’

Despite the court’s ruling, in a statement it issued the day before the proposed rule was published in the July 29 Federal Register, OSHA said the amendments “add no new compliance obligations.”

The agency continued its explanation via email when asked for further clarification.

“In the Volks case, Judge Garland issued a concurring opinion in which he recognized that the OSH Act allows for continuing violations of recordkeeping requirements, but found that the specific language in OSHA’s existing recordkeeping regulations does not adequately reflect the agency’s intent to treat the duty to make and maintain accurate injury and illness records as an ongoing obligation,” wrote an agency spokesperson.

The email continued: “The changes proposed in this rulemaking are designed to ensure that the recordkeeping rules clearly state OSHA’s intent in this regard, and also to ensure implementation of the OSH Act requirement that employers ‘maintain accurate records.’”

Time to Comment

Members of the public can submit comments about the proposed rule, identified under Docket No. OSHA-2015-0006, until Sept. 27.

Those wishing to comment can submit them electronically at the Federal e-Rulemaking Portal; via fax (not to exceed 10 pages) to 202-693-1648; or by hand-delivery or mail to the OSHA Docket Office, Docket Number OSHA-2015-0006, Technical Data Center, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW, Room N-2625, Washington, DC 20210.

Additional information regarding public comments can be found within the proposed rule’s text on the Federal Register.


Tagged categories: Good Technical Practice; Government; Health and safety; Laws and litigation; Lawsuits; North America; OSHA; OSHA; Regulations

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