Should you worry about recordkeeping violations from more than six months ago?

Businesses must maintain OSHA records for five years.  But since 2012, it has been up in the air how long you can be cited for failing to maintain those records, because OSHA and the courts have been fighting the statute of limitations for recordkeeping violations.

In 2012, the U.S. Court of Appeals for the D.C. Circuit held in AKM LLC dba Volks Constructors v. Secretary of Labor that “no citation may be issued … after the expiration of six months following the occurrence of any [recordkeeping] violation,” rather than 5 ½ years as the agency had claimed.  In response, OSHA created the so-called Volks rule, seeking to avoid the Volks decision and reestablish their old statute of limitations.  (A five-year statute of limitations, in other words.)

A preliminary Volks rule was issued in the summer of 2015, and the rule became final in December 2016.  As part of the new Congress’ package of regulatory repeals, both houses of Congress passed a Congressional Review Act resolution of disapproval on March 22nd, 2017, and President Trump signed the resolution on April 7th.  OSHA published a formal withdrawal notice on May 3rd, 2017.  Under the Congressional Review Act, OSHA is forbidden from re-issuing the Volks rule or any rule “substantially similar” to it.

At least one state that operates its own OSHA agency, such as Michigan, has declined to follow the holding of the Volks case.  In contrast, others, such as California, have been persuaded by the holding of the Volks court.  (So, too, has the Fifth Circuit Court of Appeals, in Delek Refining v. Occupational Safety & Health Review Commission.)

The current state of the law is thus the pre-Volks rule status quo.  As such, OSHA now only has six months to issue citations after Congress has issued a resolution of disapproval under the Congressional Review Act.  Businesses can no longer be cited for recordkeeping violations after the six-month statute of limitations expires.

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