By Eric J. Conn and Kate M. McMahon

Earlier this year, we wrote about a very significant rulemaking to amend OSHA’s injury and illness recordkeeping regulations to require employers to proactively submit their injury logs and reports to OSHA on a regular and frequent basis. We understand OSHA is committed to implementing that rule before the Obama Administration shuts out the lights and hands over the keys. The data submission recordkeeping rule is not, however, the only effort underway by OSHA to reform its recordkeeping regulations.

In what is certain to land OSHA back in court, OSHA plans to soon roll out a rule that attempts to end-run around the U.S. Court of Appeals for the D.C. Circuit’s decision that rejected the Agency’s historical doctrine that violations of OSHA injury and illness recordkeeping requirements continued each day an employer’s log remained incomplete or inaccurate, and declared instead that recordkeeping violations may only be cited within a strict six month statute of limitations.  OSHA has attached the misleading name “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” to this rulemaking.

The driver behind OSHA’s proposed amendment to its injury and illness recordkeeping rule is not to clarify anything, but rather to attempt to undo the D.C. Circuit’s very clear 2012 decision in AKM LLC v. Secretary of Labor (aka the Volks Constructors case). In Volks Constructors, OSHA argued that every day the logs remain inaccurate, the employer commits a new violation, and extends the enforcement deadline. In other words, even though Congress set a six month statute of limitations for OSHA violations, OSHA believed the statute of limitations for injury and illness recordkeeping violations was five years plus six months due to the “continuing” nature of recordkeeping violations. Applying this expansive and flawed view of the statute of limitations historically gave OSHA wide latitude in recordkeeping enforcement.

The D.C. Circuit clearly considered that position, exercised its judicial role in interpreting Congress’ intent by the language of the OSH Act, and held that OSHA’s six-month statute of limitations applies strictly in recordkeeping enforcement. Specifically, a failure to properly record an injury is a violation that occurs the moment – and only that moment – when the injury was due to be recorded (one week after the injury). Therefore, if OSHA is going to cite that violation, it must do so within six-months and eight days of the injury.

D.C. Circuit Judge Merrick Garland – now President Obama’s nominee to fill the current vacancy on the Supreme Court – wrote a concurring opinion in the decision issued by the three-judge panel. Judge Garland wrote in the concurring opinion wrote:

“The Secretary’s regulations impose upon employers ‘discrete’ rather than continuing obligations to make records…. I write to explain why those regulations cannot reasonably be read otherwise, and hence why the citations are untimely under the applicable statute of limitations. This does not mean, however, that the statute could not admit of a continuing violation theory under other circumstances.”

In a rare instance of OSHA offering public comment about the outcome of litigation, OSHA hastily criticized the D.C. Circuit’s opinion at the time it was issued, and shortly thereafter announced that it was introducing a rule that it said would “clarify” its own position that its recordkeeping regulations impose an ongoing obligation on employers.

Because the Secretary of Labor declined to petition for an en banc rehearing of the case by the full D.C. Circuit, or petition for a writ of certiorari to the Supreme Court, it is egregious for OSHA to now attempt to promulgate regulations to effectively reverse the outcome. While it is bad enough that OSHA is attempting to use its rulemaking authority to relitigate an already-resolved and not appealed legal result, this move represents an especially bold effort to assert authority that Congress clearly denied the Agency in the OSH Act itself.  Nevertheless, OSHA describes the proposed the rule this way:

“OSHA is proposing to amend its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”

OSHA maintained in a press release at the time of the Volks decision that the proposed amendments add no new compliance obligations, saying the proposal would not require employers to make records of any injuries or illnesses for which records are not already required. Assistant Secretary David Michaels asserted that in light of the D.C. Circuit’s decision in Volks, such a rulemaking was necessary:

“Accurate records are not simply paperwork, but have an important, in fact life-saving purpose[.] They will enable employers, employees, researchers and the government to identify and eliminate the most serious workplace hazards – ones that have already caused injuries and illnesses to occur.”

OSHA’s attempt to use the rulemaking process to end-run the Court’s very decisive ruling on this issue has met with strong resistance from numerous industry groups. The American Fuel and Petrochemical Manufacturers and the American Petroleum Institute offered formal comments about the proposed rule explaining how the proposal would impermissibly circumvent the D.C. Circuit’s judicial opinion, as well as impair other legal and public policy objectives of the OSH Act. The associations explained in their comments to OSHA that the Secretary’s purported “clarification” of Part 1904 is an impermissible attempt to alter the plain language of the OSH Act:

“Nothing short of a change to the OSH Act’s statute of limitations provision will change the period of time by when OSHA must cite an employer for the duty to record injuries under Part 1904.”

The Associations cautioned that the effort to sidestep the DC Circuit’s opinion through rulemaking would be overturned by any reviewing Court under the Administrative Procedure Act, as the D.C. Circuit can hear the appeal of any OSHA case anywhere in the country, and such an attempt to dodge that precedent by rulemaking puts “the judiciary, legislative, and executive branches on a Constitutional collision course.”

AFPM and API asked OSHA to withdraw the proposed rule and suggested that OSHA tackle the recordkeeping issue through other means, concluding that:

“Specifically, OSHA already has at its disposal a wide array of enforcement tools that it can use to identify and cite compliance violations within the six month statute of limitations, from its new injury and fatality reporting rule, to a long list of national, regional and local emphasis programs, and an expansive whistleblower program.”

OSHA’s most recent regulatory agenda listed December 2015 as the last action taken on the rulemaking, which was the process of analyzing stakeholder comments that were due earlier in the year.

While OSHA has a very short time frame by which it would have to issue the proposed rule before the clock runs out on the Obama Administration, because the legal issues have been so thoroughly vetted by the Labor Solicitor’s Office through the Volks case, the rule itself would not likely take long to finalize if OSHA is able to clear all of its rulemaking procedural hurdles. One way OSHA may attempt to accomplish that would be to attempt to merge this rule with the injury data submission rule to try to get them both through the White House OMB process this year. Either way, this initiative is one to watch closely over the next few months.