By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

Today, OSHA published a new rule which seeks to impose on employers continuing obligations to create OSHA 300 Logs and OSHA 301 Incident Reports throughout the entire five-year period in which such records are required to be retained.  [See What Employers Need to Know About OSHA Injury/Illness Record Mandates]. In doing so, OSHA seeks to avoid the statute of limitations of the Occupational Safety & Health Act (“OSH Act”) which states that “no citation may be issued … after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).

OSHA’s continuing obligation theory, however, was previously addressed and rejected by the U.S. Court of Appeals for the District of Columbia Circuit in 2012 in AKM, LLC v. Secretary of Labor.  There, OSHA cited and fined Volks Constructors for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006.  OSHA issued the citations in November 2006.  In vacating the citations, the D.C. Circuit opined: “[E]very single violation for which Volks was cited – failures to make and review records – and every workplace injury which gave rise to those unmet recording obligations, were ‘incidents’ and ‘events’ which occurred more than six months before the issuance of the citations.”

OSHA does not dispute the questionable legality of the new rule.  The Preamble acknowledges that, in AKM, LLC, “a majority held the [OSH Act] does not permit OSHA to impose a continuing recordkeeping obligation on employers” and that at least 14 commentators opined that OSHA did not have the legal authority to adopt the rule.  The Preamble also  admits the implementation of the new rule “will likely be the subject of future litigation in various federal courts, and potentially the Supreme Court.”  Much of the Preamble is thus devoted to setting forth the legal arguments which will be presented in such future litigation.

The timing of the new rule is also not coincidental. It is scheduled to become effective on January 18, 2017, two days before Donald Trump is inaugurated as President.  Accordingly, litigation or congressional action will be necessary to prevent its implementation.  In the absence of such action, however, employers should recognize that legal grounds exist to challenge any untimely citation issued by OSHA under the new rules after January 18th.