Recordkeeping under the Occupational Safety and Health (OSH) Act is often top of mind for workplace safety professionals. Under the OSH Act, employers must record injuries and illnesses resulting in medical treatment beyond first aid, loss of consciousness, death, days away from work, restricted work/restricted duty, transfer to another job, or a significant ailment diagnosed by a physician or other licensed health care professional. These Occupational Safety and Health Administration (OSHA) Form 300s or “300 Logs” must be prepared within seven calendar days of discovery of the recordable injury and maintained for a five-year retention period. OSHA Form 300A summaries need to be prepared from the OSHA Form 300 and posted in the workplace no later than February 1 of the year following.

In the early 2000s, OSHA began insisting the OSHA Form 300 be kept up to date for five years—the retention period established under the OSH Act—and cited employers for failing to do so even if the failure fell outside the act’s six-month statute of limitations. In 2012, the United States Court of Appeals for the D.C. Circuit addressed this issue in AKM LLC dba Volks Constructors v. Secretary of Labor.

In Volks, OSHA discovered the employer had not prepared or maintained OSHA Form 300s from January 2002 to April 2006. On November 8, 2006, OSHA, applying instance-by-instance citations, issued 171 citations and $13,300 in fines. The employer challenged the citations as untimely with the earliest violation occurring fifty-four months prior to the citations, and the latest violation occurring six months and ten days prior to the citations, all outside the act’s six-month statute of limitations. OSHA argued the five-year retention period must be taken into account. Thus, according to OSHA, employers could be cited for five years beyond the six months.

A three-judge panel agreed with the employer and vacated the citations, reasoning that a recordkeeping failure becomes a violation when the employer fails to properly record the injury within seven days after the injury, and that “a citation issued within the following six months, and only the following six months, would be valid.” OSHA attempted to adopt a rule that would have circumvented Volks, but formally withdrew the proposal with a notice in the Federal Register on May 3, 2017.

In 2022, the U.S. Government Accountability Office (GAO) published the testimony of a GAO official before a subcommittee of the U.S. House of Representatives’ Committee on Education and Labor (now called the Committee on Education and the Workforce), titled “Data and Enforcement Challenges Limit OSHA’s Ability to Protect Workers During a Crisis.” Five of the more than twenty pages of testimony focused on the need for improvements in employer reporting of injury and illness data, including the means to compel recordkeeping. Rumors are circulating that OSHA may attempt to change the recordkeeping rules so as to reinstate the pre-Volks ability to cite employers for violations of recordkeeping that date back more than six months.

Regardless of the status of Volks, many employers have taken from Volks that citations must be issued within six months and can only be issued within six months of OSHA opening an inspection. OSHA, however, routinely issues citations “during” an inspection, when the six-month window will close, but before OSHA officially “closes” the inspection. In other words, if OSHA begins an investigation on November 1, and discovers a five-month-old recordkeeping violation on November 2, they may then hurry to issue a citation on the recordkeeping violation but continue to investigate other issues.

This practice, which has risen in popularity, buys OSHA more time to issue citations, especially during complex investigations, which may not be resolved until after the six-month window. However, this workaround can only buy OSHA so much time as the citations still must be issued before the statute of limitations elapses. With this in mind, employers may begin seeing more instances where they are issued multiple citations at different points in an investigation. The practice is further indication of OSHA’s plans to continue targeting recordkeeping as a key area of concern, especially as we come out of the COVID-19 pandemic when recordability was often unclear.