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Recent OSHA Final Rule on Recordkeeping Flouts D.C. Circuit Decision

The Occupational Safety and Health Administration (OSHA) announced last week a new final rule that purportedly “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.”  OSHA’s final rule, however, is likely to be challenged, if not reversed, by the incoming Trump Administration.  The final rule flies in the face of a 2012 decision by the U.S. Court of Appeals for the D.C. Circuit, in AKM LLC v. Secretary of Labor, __ F.3d __, 2012 WL 1142273 (DC Cir., April 06, 2012) (commonly referred to as the “Volks” decision), reversing an Occupational Safety and Health Review Commission decision and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The Volks decision applied a six month statute of limitations to an employer’s duty to put work-related injuries and illnesses on the OSHA 300 log. The D.C. Circuit effectively ended OSHA’s practice of issuing citations for alleged recordkeeping errors back five years.

In announcing the final rule, OSHA claimed the rule merely seeks to more clearly define employers’ obligations. “This rule simply returns us to the standard practice of the last 40 years,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. According to OSHA, the amendments in the final rule add “no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.”

However, the new rule is an obvious attempt to circumvent the D.C. Circuit decision in Volks. OSHA has almost certainly opened itself up to further litigation on the issue of whether an employer may be cited for a recordkeeping violation beyond the six month statute of limitations.

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