COMPLIANCE PERSPECTIVES

How Much Time Does OSHA Have to Cite Labs for Recordkeeping Violations?

GROUND RULE
OSHA Recordkeeping Regulations (Section 1904.33) require labs and other employers to retain accurate illness and injury records) for 5 years. OSHA has a 6-month window to issue citations for recordkeeping violations.


SCENARIO
On July 1, 2017, a staff lab technician complains to OSHA that ConnSeel Laboratories is deliberately covering up work-related illnesses to employees. A week later, OSHA sends over an inspector who checks ConnSeel’s 2016 illness and injury reports, i.e., OSHA Form 300 Logs, Form 300A Summary and Form 301 Reports. Sure enough, she finds at least 3 cases in which ConnSeel didn’t report recordable illnesses, in violation of recordkeeping rules.

QUESTION
Can OSHA cite ConnSeel for recordkeeping violations?

  1. No, because ConnSeel committed the violations more than 6 months ago
  1. Yes, as long as the citations are issued within 6 months after the inspector discovered the violations

ANSWER
A. No because OSHA didn’t discover the violations until after the 6-month window for issuing citations had closed. Note: If you got this one wrong, don’t feel too bad. Up until a few weeks ago, the rules were different and B would have been the right answer.

EXPLA NATION
OSHA recordkeeping regulations give the agency 6 months to issue citations for violations but don’t specify when the window period begins to run. In 2013, OSHA purported to resolve the problem by adopting a new rule clarifying that OSHA recordkeeping violations are "ongoing" and that the window period begins to run not when the violation occurs but when OSHA first discovers it.

But on April 3, 2017, the new President signed a congressional action (H.J. Res. 83) nullifying the OSHA rule and specifying that the 6-month window period begins when the employer commits the violation.

IMPA CT ON YOU
The rule change doesn’t affect the substance of OSHA recordkeeping requirements. Your lab will still need to maintain the same OSHA illness and injury records as before. But resetting the window start to the date of violation means that OSHA will now have only 6 months to uncover violations. This will make it much harder for OSHA to enforce the rules.

The above scenario, which is purely hypothetical, illustrates how this may play out. Remember that ConnSeel committed the recordkeeping violations in 2016 and that OSHA discovered them on July 8, 2017.

  • Before: Under the previous rules, ConnSeel’s 2016 recordkeeping violations would have been considered ongoing and OSHA could have cited the lab despite not discovering them until 7 months after they were committed.
  • Current: Under the new rules, the 6-month window period for recordkeeping violations committed in 2016 would end on June 30, 2017 and OSHA couldn’t cite ConnSeel for the violations since it discovered them in July 2017.
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