The Occupational Safety and Health Act (OSH Act) and implementing regulations issued by the Labor Department’s Occupational Safety and Health Administration (OSHA) require employers to record a workplace injury or illness within seven days of learning of it, and to retain the record for five years. The OSH Act also gives OSHA six months to issue a citation for alleged failure to comply with this recordkeeping requirement.
In 2012, the U.S. Court of Appeals for the District of Columbia Circuit ruled in AKM LLC v. Sec’y of Labor that the seventh day of the record-making window was the single day on which a violation occurred, and that OSHA thus had only six months from that day to issue a citation. In so ruling, the court rejected OSHA’s argument that each day an employer goes without having recorded an injury or illness, a new violation occurs, thus allowing the agency to issue a citation anytime during the five-year retention period.
In direct contravention of the D.C. Circuit’s 2012 ruling, however, on December 19, 2016, OSHA issued a final rule amending its recordkeeping regulations to “clarify” that every day during the five-year recordkeeping period that an employer fails to record a workplace injury or illness constitutes a new violation. Under the revised rule, which went into effect on January 18, 2017, OSHA will have five years and six months from the date that an employer becomes aware of a workplace injury or illness to issue a citation for failing to make and retain the required records.
Members of the Equal Employment Advisory Council (EEAC) can read more here.