Federal court sides with employer on OSHA statute of limitations issue

The Occupational Safety and Health Act requires employers to make, keep and preserve records of workplace injuries and illnesses as the Secretary of Labor prescribes by regulation (29 U.S.C. § 658(c)).  The pertinent regulations provide that employers must prepare an incident report and a separate injury log 'within seven (7) calendar days of receiving the information that a recordable injury or illness has occurred' (29 C.F.R § 1904.29(b)(3)) and must also prepare a year-end summary report of all recordable injuries during the calendar year (§ 1904.32(a)(2)).  The employer must save these documents for five years from the end of the calendar year the records cover (§1904.33(a)).  The Act also provides that '[n]o citation may be issued . . . after the expiration of 6 months following the occurrence of any violation' (29 U.S.C. § 658(c)).  In a recently decided case, AKM LLC, d.b.a Volks Constructors v. Secretary of Labor, 2012 WL 1142273 (C.A.D.C.), the United States Court of Appeals for the District of Columbia Circuit sided with the employer on the issue of whether OSHA's record keeping requirement and five year regulatory retention period allows OSHA to disregard the Act's six month statute of limitations period.  Volks makes it clear that an employer's obligation to create a record of workplace injuries and illnesses is distinct from the obligation to maintain the record.  In November 2006, OSHA cited Volks for failing to properly record certain workplace injuries and for failing to properly prepare its reports, logs and summaries between January 2002 and April 2006.  Volks was not cited for violations of the requirement to 'save' the documents for five years, but only for its failure to create the records.  Volks moved to dismiss the citations as untimely, because the injuries giving rise to the recording failures took place more than six months prior to the issuance of the citations.  The Secretary of Labor argued that the violations continued every day the unmet record keeping obligation remained unsatisfied – and therefore the statute of limitations was the length of the record retention period plus the limitations period set by Congress – or five years beyond the six months stated in § 658(c).  The Volks Court disagreed and held that if an employer fails to make records of workplace injuries, OSHA may only cite the employer for the violations within six months of the violation's occurrence.  For example, if the workplace injury is reported on May 1, OSHA can cite an employer for failure to create a record beginning on May 8 and a citation is valid only if issued within six months thereafter.  On the other hand, once an employer has made such a record, it must also retain the record for the required time (five years) and OSHA may cite employers for loss or destruction of the record for six months after the fifth year of the retention period.  The Iowa Occupational Safety and Health Act mirrors federal OSHA (for example, the language of the six month statute of limitations provision in Iowa Code 88.7 is identical to that found in 29 U.S.C. 658(c)).  Federal law interpreting and applying OSHA provisions is considered persuasive authority in interpreting and applying Iowa's Act, consequently, the Volks decision is good news for Iowa employers, too.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.