Applying the OSH Acts statute of limitations provisions, in 2012 a Federal Appeals Court ruled that OSHA could not cite an employer for not recording a workplace injury and illness if more than six months had passed from the date that incident was required to be reported.
Unhappy with this court ruling, OSHA has filed a proposed rule which establishes, in part, that failure to record an injury or illness is an ongoing violation. This proposal would have the effect of allowing OSHA to issue recordkeeping citations for and failure to report a required incident as long as 5 and one half years after the alleged recordkeeping violation.
According to OSHA, as long as an employer fails to comply with its ongoing duty to record an injury or illness, there is an ongoing violation of OSHA‚ recordkeeping requirements that continues to occur every day . . . . therefore, OSHA can cite employers for such recordkeeping violations for up to 6 months after the 5 year retention period expires.
Although OSHA does not intend to hold a public hearing on the proposed rule, it is accepting comments through September 28, 2015. Comments may be e-mailed to OSHA at http://www.regulations.gov. If you submit comments you should reference Docket No. OSHA-2015-0006.by