OSHA Record-Keeping Citations Limited to 6 Mos.: D.C. Cir.

By Stephanie Rabiner, Esq. on April 25, 2012 | Last updated on March 21, 2019

The D.C. Circuit has limited the authority of the Occupational Safety and Health Administration to issue citations, overturning longstanding administrative precedent. OSHA may no longer cite employers for record-keeping violations that occurred more than 6 months prior.

The agency has long held that the OSH Act imposed a 5-year statute of limitations on such citations. But the court chose to strictly construe the law, which specifically states that "No citation may be issued after the expiration of six months following the occurrence of any violation."

The underlying challenge was filed by Volks Constructors, which was fined $13,300 for 67 record-keeping violations. The company was cited nearly five years after the first violation occurred.

OSHA tried to argue that these were "continuing violations," and were therefore still actionable under the agency's 5-year document retention rule. The court disagreed, finding that these violations were "discrete antecedent events," and were to be considered "occurrences" under the law.

The D.C. Circuit went on to explain just how the 6-month statute of limitations will work:

OSHA may cite employers for violations within six months of the violation's occurrence. If an injury is reported on May 1, OSHA can cite an employer for the failure to create a record beginning on May 8, and a citation issued within the following six months, and only the following six months, would be valid.

[O]nce an employer has made such a record, it must also retain it ... for five years ... [S]o for six months after the fifth year, and only for those six months, OSHA can cite an employer for the loss or destruction of a record.

Though this certainly eases an employer's financial burden, it only applies to record-keeping violations. The court indicated that OSHA's "continuing violation" theory may still be relevant when, for example, a "company continues to subject its employees to unsafe machines."

[4/30/12 Editor's Note: The title of this post was changed to clarify that the D.C. Circuit's ruling applies to OSHA's ability to cite over record keeping.]

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