On Monday, December 19, the Occupational Safety and Health Administration (OSHA) issued a final rule designed to clarify an employer's continuing obligation to make and maintain an accurate record of each recordable injury and illness. The final rule does not add any new compliance obligations for employers or change any existing reporting requirements. The final rule is slated to become effective January 18, 2017.
OSHA has long held the position that an employer’s duty to record an injury or illness continues for the full five-year required record-retention period, and this position has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993. This final rule comes in opposition to litigation dating from 2012 which reversed the Commission’s findings.
So what does this mean for a club? Generally, workplace violations are subject to citations and penalties for up to six months after the last instance of employee exposure to the unsafe condition. However, through this rule, OSHA is deeming failure to report the issue as an ongoing violation and thus employers could be fined up to five years from the date of the unreported injury or illness. In essence, OSHA is extending the statute of limitations from six months to five years.
For example, a worker suffers an injury at the club on January 1, 2017, while working in the kitchen that requires medical attention. The club fails to report it to OSHA and record it on OSHA 300 log. Under the new rule, the club could be fined and cited through January 1, 2022, for this omission and the unsafe conditions (if they existed). Previously, the club could have only been cited until July 1, 2017.
Given the ongoing Presidential transition, this rule could be reviewed by the incoming Administration as well as the new Congress when they return in January. Due to the timing of its issuance, it would be subject to the Congressional Review Act.