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Federal Appellate Courts Limit OSHA Injury Recordkeeping Enforcement

Sigel_Gabrielle_COLORBy Gabrielle Sigel

 

Two recent U.S. Court of Appeals decisions limit the Occupational Safety and Health Administration's ("OSHA") ability to enforce regulations regarding workplace injury and illness reporting. OSHA requires most U.S. employers to prepare detailed logs of every significant work-related injury and illness. 29 C.F.R. Part 1904. The injury/illness must be recorded within seven days of an employer's knowledge of the incident. 29 C.F.R. 1904.29(b)(3). Two different Court of Appeals decisions addressed OSHA's enforcement with respect to the injury/illness regulations.

In AKM LLC v. Secretary of Labor, No. 111106 (U.S. Ct. App. D.C. Cir. Apr. 6, 2012), the Court of Appeals for the D.C. Circuit addressed OSHA's attempt to issue citations for an employer's failure to record certain injuries that occurred more than six months before the OSHA inspection. OSHA regulation requires an employer to maintain injury/illness logs for five years (29 C.F.R. 1904.33(a)), so OSHA took the position that any failure to record within the 5-year period prior to inspection was a continuing violation that could be cited. However, the OSH Act provides that "No citation may be issued . . . after the expiration of six months following the occurrence of any violation." 29 U.S.C. ยง 658(c). AKM appealed a citation for 67 alleged failures to properly record injuries. In AKM's initial appeals, the administrative judicial decisions supported OSHA. The U.S. Court of Appeals disagreed and reversed the administrative decisions. The Court recognized that if a statute is unclear, the agency's interpretation requires deference by the Court. Here, however, the Court found that the six month statute of limitations was clear. The Court held that OSHA could not avoid the statute's six-month limitation period by adopting a five-year retention regulation and enforcing it in a manner that made the statutory limitation meaningless. Thus, although OSHA could issue a citation five years and six months after an employer fails to retain a five year-old injury/illness log, OSHA could not cite an employer for defects or missing information within a retained log more than six months after the employer initially should have recorded the injury or illness.

In Caterpillar Logistics Services v. Solis, No. 112958 (U.S. Ct. App. 7th Cir. Mar. 20, 2012), the Court of Appeals for the Seventh Circuit criticized an administrative judicial decision for failure to properly consider the employer's evidence explaining the basis for its decision not to record an injury. After an employee complained of epicondylitis from her work requiring continuous repetitive motion, Caterpillar assembled a review board and determined that the employee's injuries were not work-related and need not be recorded. On appeal, Caterpillar argued that the Occupational Safety and Health Review Commission Administrative Law Judge ("OSHRC ALJ") had ignored Caterpillar's evidence that no other employee had sustained a similar injury in the more than ten years that the company had used the same operation. The Court found that the OSHRC ALJ was entitled to credit OSHA's expert over Caterpillar's expert. However, the OSHRC ALJ was not entitled to ignore competing evidence and OSHA was required to produce evidence, including expert testimony, explaining Caterpillar's contrary evidence. Given the lack of history of a similar injury, the failure to consider Caterpillar's contrary evidence, and OSHA's legal burden to prove causation by a preponderance of the evidence, the case was remanded to the OSHRC ALJ for further consideration.

In reaching his opinion for the Court, Chief Judge Frank Easterbrook commented that the resources spent to interpret and apply the recordkeeping regulation were misspent. If OSHA issued the regulation only to gather data on the extent of workplace injuries, the regulation should require that all injuries occurring in the workplace be recorded, not just those that an employer is required to correctly determine is "work-related." The Court urged the Secretary of Labor to reconsider its regulation and eliminate the "work-related" judgment. "Eliminating the work-relatedness requirement would make the log more useful and avoid the potentially high costs of evaluation illustrated by this case." Slip op. at p. 5.