In 2012, the U.S. Court of Appeals for the District of Columbia held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Unhappy with the unfavorable ruling, OSHA added agency action to its Regulatory Agenda for “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness” and on July 29, 2015, OSHA issued a Notice of Proposed Rulemaking.

According to OSHA this proposed rule is meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”  In short, this agency action is an attempt by OSHA to undo the holding in the Volks case.

OSHA claims that no new obligations are created through this rulemaking yet proposes to revise the language of various recordkeeping requirements, including 1904.29(b)(3) as follows:

How quickly must each injury or illness be recorded? You must enter each and every recordable injury or illness on the OSHA 300 Log and on a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to meet this deadline does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in Sec. 1904.33.

Public comments to this proposed rule are due on or before September 27, 2015. A copy of the proposed rule can be found online.