Circuit Courts Restrict OSHA’s Enforcement of Record-keeping Requirements

Two recent Circuit Court decisions vacated OSHA citations with regard to record-keeping requirements. In Caterpillar Logistics Services, Inc. v. Solis, 2012 WL 919659 (7th Cir. March 20, 2012), the Seventh Circuit vacated a citation because the agency had not adequately defined what “contributed to” means in determining the work-relatedness of an injury. In AKM LLC v. Sec. of Labor, et. al., 2012 WL 1142273 (D.C. Cir. April 6, 2012), the D.C. Circuit vacated an OSHA citation because the agency wrongly concluded that a record-keeping violation was a continuing violation that tolled the six month statute of limitations.

In Caterpillar Logistics, an employee who worked in Caterpillar’s packing department was diagnosed with epicondylitis, a swelling of the ligaments in the elbow more commonly known as "tennis elbow." Caterpillar determined that the injury was not work related because the injury is caused by a combination of repetitive motion plus force (weight or impact), and her position in the packing department did not involve impact or the lifting of heavy objects. Therefore, Caterpillar did not record the injury in its log books.

OSHA cited Caterpillar for the omission, contending that the repetitive motion involved in her position likely “contributed to” the employee’s injury. In vacating the citation, the Seventh Circuit noted that OSHA had not adequately defined “contributed to” and failed to properly take into account the employer’s past experience with its staff in the packing department, which showed that none of its employees had developed “tennis elbow.” The court explained that OSHA must articulate clear criteria for an employer to assess whether an employee’s work has “contributed to” an injury.

In AKM, LLC, OSHA cited the employer on November 8, 2006 for failing to properly maintain records of work-related injuries, including incomplete incident report forms, incomplete injury logs, and failing to conduct year-end reviews and prepare year-end summaries between January 11, 2002 and April 22, 2006. OSHA determined that the statutory six-month limitation for citations was essentially tolled because, according to the agency, record-keeping violations are continuing violations and, therefore, the statute of limitations is five years (record retention period) and six months from the date of the unrecorded injury. The D.C. Circuit disagreed and vacated the citations. The court explained that under OSHA’s interpretation, “the statute of limitations Congress included in the Act could be expanded ad infinitum …” if OSHA decided to extend the record-keeping requirement beyond five years. The court concluded that the OSHA’s interpretation subverted the statutory limitation period and reiterated that the Agency could only issue citations for violations that occurred within the six-month limitation period.

In combination, these cases represent important developments that should help to limit OSHA’s efforts to expansively enforce record-keeping requirements.