Can You be Cited for 5-Year Old Record-Keeping Violations? Review Commission to Rule in April

[tweetmeme]Although OSHA Injury and Illness Logs (300/301) should be complete and accurate up to the previous day’s work, it is that time of year again when we remind folks to that your OSHA Logs must be posted as of February 1st

The OSHA 300-A form “Summary of Work Related Injuries & Illness” must be posted from February 1 through April 30.  The posting should be posted where notices are normally posted for your facility.  Specific information regarding the posting requirements and copies of the recordkeeping forms are available at .osha.gov/recordkeeping/index.html .

It is also timely to remind folks that there is a critical ruling expected in April 2011, by the Occupational Safety & Health Review Commission.  At issue is a group of citations OSHA handed down against Volks Constructors in 2006 for alleged recordkeeping violations (Secretary of Labor v. AKM LLC d/b/a Volks Constructors, OSHRC, No. 06-1990, oral arguments 11/2/10).

Inspections that took place between May and November 2006 led OSHA to conclude that the employer failed to record 67 work-related injuries or illnesses at the work site between August 2002 and April 2006.  OSHA asserted that because the employer on an ongoing basis failed to record the injuries and illnesses right up to the time of the inspections, the violations were continuing and fell within the six-month window outlined in the OSH Act between the time of the violation and the issuance of the citation.

Volks is contesting the citations based on Section 9(c) of the OSH Act which provides that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.”  However OSHA contends that the Review Commission has long held that section 9(c) allows the OSHA to “cite an uncorrected violation six months from the date the Secretary discovers, or reasonably should have discovered, the facts necessary to issue the citation.”

The case against Volks may set a precedent for the window of time in which a business can be cited for OSHA record keeping violations.  ‘Can a business be cited for 5-year-old recordkeeping violations?’  For now OSHA says yes..they conclude that inaccurate entry violates the law until it is corrected, or the 5-year record retention requirement expires.

Similar arguments have been made in the past, for example in 1993, OSHA in Johnson Controls Inc. held that the clock starts ticking not when the reporting violation actually occurs, but rather “six months from the time OSHA does discover, or reasonably should have discovered, the facts necessary to issue a citation” although subsequent court cases may supersede that ruling.  The details of this are exactly what the Review Commission is set to rule on in April and there is reason to believe there’s a good chance the Review Commission will rule in favor of OSHA, since the Commission is made up of two Democrats and one Republican (all Presidential appointees).

A decision in favor of OSHA means that employers better ensure that their OSHA 300 logs are correct going back for a full five years prior to the current year or face the possibility of citations.

Many have also speculated that if Volks wins the case, it may lead to much more stringent OSHA inspections.  After all if an employer is going to argue, ‘You were in here a couple of years ago, you had the opportunity to discover the violation then.  The statute of limitations starts running then, now you’re out of time to start issuing citations.’  OSHA will essentially have only one chance to catch all violations.  So you can bet they will spend more time looking for violations during their inspections.

Either way I don’t see an upside for small businesses.  Do you need help with your OSHA logs?

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