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OSHA Issues Notice of Proposed Rulemaking in Response to Court Ruling


On July 29, 2015, the United States Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking clarifying its position on an employer’s obligation to make and maintain “accurate” records of each recordable injury and illness throughout the five year period during which an employer is required to keep the records.

OSHA issued this proposed rule in response to a 2012 federal court decision1 that ruled the language in the OSH Act is not authorization for OSHA to cite an employer for a record-keeping violation more than six months after the recording failure. According to the ruling, OSHA may cite an employer for failing to record an injury or illness within six months of the first day on which the regulations require the recording of the injury or illness. Therefore, a citation issued later is barred by the OSH Act’s six month statute of limitations.

However, in a separate concurring opinion, one member of the court opined that the OSH Act allows for continuing violations, but noted the specific language in OSHA’s existing recordkeeping regulations does not implement this statutory authority and therefore does not create continuing recordkeeping obligations.

While OSHA asserts the proposed rule simply clarifies OSHA’s position that an employer’s duty to record an injury or illness continues for as long as the employer is required to keep records, it is clear that OSHA is trying to overcome this court’s decision. Indeed, among the proposed changes is the addition of the word “accurate” to the requirements set forth in Section 1904 of the OSH Act. In making this change, among others, OSHA attempts to extend the limitations period so they can cite employers for reporting errors (i.e., “non-accurate” reporting) that go back more than six months.

While OSHA contends the proposed amendments add no new compliance obligations, and that the proposal does not require employers to make records of any injuries or illnesses for which records are not already required, it is clear the proposed change is of far more significance to employers who are required to maintain OSHA 300 logs.

Members of the public can submit written comments on the proposed rule at, the Federal e-Rulemaking Portal. Comments must be submitted by September 28, 2015.

1See AKM LLC v. Secretary of Labor (Volks II) 675 F.3d 752 (D.C. Cir. 2012).