Once the Occupational Safety and Health Administration opens an investigation of an employer, it has six months to complete the investigation and issue citations. In 2012, the D.C. Circuit Court of Appeals determined that this regulatory limit also applies to recordkeeping violations. For example, OSHA cannot cite employers for failure to record missed day accidents if the violation occurred more than six months ago.

Last month, OSHA issued proposed regulations extending the period for citing recordkeeping violations to six months after the existing five-year records retention period. In other words, the agency could issue fines and other penalties based on any violation found during the time employers are required to maintain certain injury and illness records.

This proposal follows OSHA’s conclusion that U.S. employers substantially underreport workplace illnesses and injuries. The extension of the reporting period would substantially increase the magnitude of penalties available to the agency as a result of violations. The proposal did not provide details on how it would legally square with the 2012 appellate court decision. Employers are certain to challenge the rule as incompatible with the underlying OSHA statutory authority. OSHA is accepting comments on the proposed rule through September 28.