ILMA Compoundings March 2017 - 32

WASHINGTON LANDSCAPE

OSHA "Clarifies" Employers'
Obligation to Make and
Maintain Accurate Records
By Daniel Bryant

T

he Occupational Safety and
Health Administration (OSHA)
published its "Clarification of
Employer's Continuing Obligation
to Make and Maintain an Accurate
Record of Each Recordable Injury and
Illness" final rule on Dec. 19, 2016,
and it became operative on Jan. 18,
2017. OSHA, through its rulemaking,
is attempting to overturn an adverse
court ruling and expand the time in
which an employer may be cited by an
inspector for failure to create and preserve accurate injury and illness records.
THE OCCUPATIONAL SAFETY AND
HEALTH ACT
The Occupational Safety and Health
Act (OSH Act) provides a six-month
statute of limitations period for
OSHA to cite an employer for failure
to make and maintain accurate records
of workplace injuries and illnesses.
Now, with this final rule, OSHA is
attempting to expand the amount of
time - to five years - within which
an employer may be cited. Many people within industry believe that OSHA
is attempting to do what is simply not
lawful - that is, rewrite the OSH
Act's statute of limitations from six
months to what the agency deems a
more appropriate period - five years.
Nonetheless, OSHA asserts its final
rule is merely a "clarification."
Under OSHA's theory, a violation is
"ongoing" until it is abated (e.g., because
the injury/illness was not initially
recorded when it occurred, there is a
continuing violation), and therefore it

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is citable. OSHA then asserts that it is
augmenting the recordkeeping requirements to "clarify" that the obligation
to make and maintain records does not
expire until the record is finally made or
the five-year record-retention-and-access
period lapses.
THE VOLKS II DECISION
OSHA's final rule is intended to
bypass the 2012 decision by the U.S.
Court of Appeals for the District of
Columbia Circuit in AKM LLC v.
Sec'y of Labor (the "Volks II decision")
where the court held that the agency
may not cite an employer for failure to
make a record of a work-related injury
or illness beyond the six-month limitations period.
The D.C. Circuit articulated that
the key question is when the "occurrence" happened (e.g., when the injury
or illness happened) and if the event
transpired more than six months prior,
the statute of limitations had run, and
therefore no citation could be issued.
OSHA plainly states in the final rule
that it "disagrees with the legal holding
of the majority opinion in Volks II"
and therefore promulgated its final rule.
Industry groups, including ILMA,
have pointed out that because OSHA
declined either to petition for an en
banc rehearing of the case by the full
D.C. Circuit or ask the Supreme
Court to review the issue, it is egregious for the agency to attempt to use
its rulemaking authority to relitigate
an already resolved and not appealed
court decision and, at the same time,

assert authority that Congress clearly
denied the agency in the OSH Act.
Interestingly, a unanimous three-judge
panel for the U.S. Court of Appeals for
the 5th Circuit decided at the end of
2016 in Delek Refining Ltd. v. OSHRC
that OSHA could not cite an employer
for recordkeeping violations that were
several years old. The Delek decision
is significant, because now two federal
appeals courts have found that OSHA
overstepped its legal authority. It would
have created a different situation if the
5th Circuit had sided with the agency.
IN CONCLUSION
Because of the controversy over
OSHA's attempt to usurp Congress' job
and rewrite the OSH Act, and based
on the Volks II and Delek decisions,
it is highly likely that there will be
additional legal challenges. Additionally, Congress could utilize its authority
under the Congressional Review Act to
nullify the Obama-era regulation.
Although OSHA says that its final
rule does not impose new compliance
obligations on employers, the rule
could result in further scrutiny of
employer injury and illness records and
more recordkeeping enforcement cases.
Accordingly, ILMA members should
continue to be diligent about recording,
maintaining and ensuring the accuracy
of their injury and illness records.
Bryant serves as regulatory
counsel to ILMA through
Bassman, Mitchell, Alfano
& Leiter Chtd. He may
be reached at 202-386-7670 or
dbryant@bmalaw.net.
http://www.ILMA.ORG
ILMA Compoundings March 2017

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