You and the Law
OSHA's 6-Month Statute of Limitations Applied to Recordkeeping
In a long-awaited case, the scope of OSHA’s 6-month statute of limitations period has been defined in regards to recordkeeping and standard citations. The 6-month limitations period was used as a potential defense to two types of alleged violations:
1) Not recording on the company’s OSHA 300 log each recordable injury or illness within 7 calendar days of receiving notification of a recordable injury or illness (under the 1904.29(b)(3) standard); and
2) Not posting an annual summary of the full-time period from February until April 30 of the applicable year (under the 1904.32(b)(6) standard).
OSHA’s statute, Section 9(c) defines the required time period in which OSHA must issue a citation to inspected employers as:
“[n]o citation may be issued under this section after the expiration of 6 months following the occurrence of any violation.”
The employer AKM LLC d/b/a/ Volks Constructors argued that the citations were time-barred because they came long after the 7-day duty to log, and years after the 3-month posting period.
Again, the appealed citations related to Volks’ alleged failure to 1) record injuries/illnesses on a “log” and on “incident report[s],” and 2) review, certify and post records regarding employee injuries/illnesses initially sustained between January 2002 and April 2006. OSHA inspected Volks’ facility on May 10, 2006, and issued the relevant citation on November 8, 2008. A timeliness issue is presented in this case because, based on the parties’ agreed upon facts, it was undisputed that OSHA issued a citation for these violations more than six months after the recordkeeping duties initially arose or “occurred.” OSHA argued that the citations were timely because the violations continued during the 5-yr. retention period prescribed by the recordkeeping regulations. Volks argued that these violations were one-time events that were not continuing, and that the citation could be considered timely on the basis of the “discovery rule.”
OSHA won in its case on the 7-day “recordable” (first type of recordkeeping cited) injury log because those types of records must be kept by employers for 5 years—not under any regulation but rather under section 8(c) of the OSHA Act.
Section 8(c) of the Act requires that “[e]ach employer…make, keep and preserve…such records…as the Secretary…may prescribe…for developing information regarding the causes and prevention of occupational accidents and illnesses.” 29 U.S.C. § 657(c)(1) (emphasis added). This section goes on to direct the Secretary to “prescribe regulations requiring employers to maintain accurate records of…work-related deaths, injuries and illnesses…” 29 U.S.C. § 657(c)(2) (emphasis added). To implement these statutory mandates, the Secretary has promulgated regulations that effectively require employers to make records—specifically, record, review and certify information about employee injuries and illnesses, as well as keep and preserve, i.e. to maintain, such records for 5 years. See 29 C.F.R. §§ 1904.29(b)(2), 1904.29(b)(3), 1904.32(a)(1), 1904.32(b)(3), 1904.33(a) for such adopted regulations by the OSHA agency.
When is a Violation of an OSHA Recordkeeping Duty a Continuing Violation?
The OSHA review commission has long recognized that these duties must be considered when assessing whether a recordkeeping violation is of a continuing nature for purposes of the 6-month limitations period in section 9(c) of the Act. The commission first addressed this issue 18 years ago in the Johnson Controls, Inc., case, 15 BNA OSHC 2132 (No. 89-2614, 1993), where the employer erroneously and reportedly deleted the entry of an employee’s elevated blood-lead level from its illness and injury log. OSHA issued a citation for that recordkeeping violation more than 6 months after the entry was deleted. In rejecting the employer’s contention that the citation was untimely, the commission stated:
“[I]t is of no moment that a violation first occurred more than six months before the issuance of a citation, so long as the instances of noncompliance and employee access providing the basis for the contested citation occurred within six months of the citation’s issuance.
“Just as a condition that does not comply with a standard issued under the Act violates the Act until it is abated, an inaccurate entry on an OSHA [log] violates the Act until it is corrected, or until the 5-year retention requirement of [the regulation] expires. Thus, a failure to record an occupational injury or illness as required by the Secretary’s recordkeeping regulations…does not differ in substance from any other condition that must be abated pursuant to the occupational safety and health standards.”
Then, in a Gen. Dynamics Corp. case, the review commission ruled that “Part 1904 creates an obligation to keep a log entry for each occupational injury or illness each day for a 5-yr. period.” Since that time, the commission has consistently applied this approach (Johnson Controls) to recordkeeping cases involving issues of timeliness. See, e.g., Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2185-86, 2000 CCH OSHD ¶ 32,134, p. 48,411 (No. 90-2775, 2000) (rejecting an employer’s contention that recordkeeping violations cited more than 6 months after initial failure to record but within 5-yr. retention period should be vacated as untimely).
As a result, storage duty records define the length of the continuing duty: here, 5 years.So, the 6-month statute of limitation period for “recordable” records starts to run only after the expiration of the 5 years required for storage. Correspondingly, the 3-month annual posted summary of injuries duty starts the count of the 6-month (defense) statute of limitation period when the summary no longer is required, i.e. May 1 of each year. MF
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