The United States Court of Appeals for the District of Columbia Circuit ruled on April 6 that OSHA has only six months to cite an employer for recordkeeping violations from the date that an employer failed to record an injury or illness on an OSHA 300 Log. This decision overrules a recent Occupational Safety and Health Review Commission decision, Secretary of Labor v. AKM LLC d/b/a Volks Constructors (2011), which had held that recordkeeping violations were "continuing violations" in the sense that every day an OSHA 300 Log was inaccurate constituted a continuing violation. The immediate effect of the D. C. Circuit's decision is that, when an injury or illness occurs that an employer should have recorded within seven calendar days of receiving information that a recordable case has occurred, OSHA has only six months from that date to issue a citation alleging a recordkeeping violation. Needless to say, this is a very significant decision because it dramatically shortens the time that an employer may be cited for OSHA injury and illness recordkeeping violations.

Section 9(c) of the OSH Act, what is referred to as the statute of limitations section, provides that "No citation may be issued . . . after the expiration of six months following the occurrence of any violation" (emphasis added). OSHA has consistently taken the position over the years that employers have a continuing obligation to maintain accurate OSHA 300 Logs and OSHA 301 forms for the present calendar year and for the five preceding calendar years. Administrative Law Judges and the OSH Review Commission had consistently upheld such "continuing violations." The D. C. Circuit's decision has now rejected this long-standing practice and precedent by ruling that the six-month limitation period within which OSHA must issue citations runs only from the discrete act or omission of failing to record an individual injury or illness. The Court further explained that the obligation to maintain OSHA 300 Logs for the five-year period means only that an employer must "save" those Logs and that this obligation is separate and apart from the obligation to record an individual case. In essence, the Court has ruled that the "occurrence" of a violation, as stated in Section 9(c) of the OSH Act, happens if an employer fails to record a case as required within the required seven calendar days. Thus, if an employer receives information in June of 2011 that should have led to the recording of that case at that time, unless OSHA conducts an inspection and issues a citation within six months of the failure to record that June 2011 case, or any subsequent cases, the Agency would be time-barred from issuing such a citation.