Trump & the Supply Chain
OSHA’s Parting Shot: Requiring Employers to Keep Records for Five Years

OSHA’s Parting Shot: Requiring Employers to Keep Records for Five Years

OSHA attempts to create a work-around for the six-month statute of limitations for bringing recordkeeping cases.

If you are a federal agency and you don’t like what the law says, apparently you can simply declare that the law means something completely different. That seems to be the logic behind an Occupational Safety and Health Administration (OSHA) recordkeeping rule that was released in the waning days of the Obama Administration.

In the final rule issued on December 19, 2016, OSHA basically ignores the Occupational Safety and Health Act’s six-month statute of limitations on recordkeeping violations by employers. Instead, the agency says it can cite employers for recordkeeping violations for up to six months after the five-year retention period expires.

OSHA crafted the new rule in response to a federal appeals court ruling handed down in 2012 which held that, under the OSH Act’s statute of limitations provision, the agency had no authority after six months from the date when a workplace injury or illness must be recorded to cite an employer for not recording it.

In that case one of the judges characterized OSHA’s interpretation of the OSH Act’s recordkeeping requirements and statute of limitations as nothing more than a “cloud of dust.”

In its final rule the agency unabashedly declares that the appeals court was wrong. “The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so,” OSHA states.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health and the head of OSHA, asserts that the new rule is merely a clarification of the law. “The new final rule more clearly states employers’ obligations. This rule simply returns us to the standard practice of the last 40 years,” he says. “It is important to keep in mind that accurate records are not just paperwork; they have a valuable and potentially life-saving purpose.”

“Although OSHA contends that the final rule does not impose new compliance obligations on employers, it may lead to heightened scrutiny of employer injury and illness records and a return to large recordkeeping enforcement cases,” warns the law firm of Beveridge & Diamond. “Accordingly, employers should be diligent about recording, maintaining and ensuring the accuracy of their injury and illness records.”

The rule went into effect on January 18—two days before President Trump’s inauguration—and it is uncertain how long it will survive under the new administration. The Trump Administration could choose to delay enforcement while deciding whether to reopen the proceeding to further clarify the clarification.

Following the November presidential vote, Republican congressional leaders warned President Obama that his administration should cease issuing final rules out of respect for the election results.

The rule could be overturned by Congress under the Congressional Review Act, in which it can strike down any rule issued within the previous 60 days. In addition, the Republican-controlled House of Representatives passed two pieces of legislation in early January that if enacted would give Congress expanded authority to strike down this and similar federal rules that were issued before Trump was sworn in.

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