Appellate Court Backs Controversial OSHA Citations Ruling
(January 26, 2017)
- InsideOSHAOnline.com reports that a December 29 ruling by the 5th Circuit U.S. Court of Appeals vacated two citations for the alleged violations of Occupational Safety and Health Administrations (OSHA) process safety management (PSM) rules on the grounds that enforcement is time-barred under the Occupational Safety and Health (OSH) Act.
The ruling rests on the precedent of a similar 2012 case, AKM LLC dba Volks Constructors v. Sec’y of Labor. In the Volks ruling, a D.C. Circuit Court determined that employer record keeping for employee injury or illness is subject to the OSH Act’s general six-month statute of limitations.
The ruling is, however, controversial, and OSHA, citing the concurring opinion in the Volks case, insists that employers have a five-year obligation to maintain these safety records. OSHA has gone on record stating that the issue will likely foster continued litigation, perhaps even at the level of the Supreme Court.
Industry officials and attorneys appear to be more than prepared for a continued fight with the agency. They have framed OSHA’s resistance as an inappropriate circumvention of court precedent, and another in a long-line of unwieldy government overreaches. A victory for OSHA would likely hurt industry bottom-lines either through expanded record-keeping costs, or the penalties involved with failure to do so.
According to Art Sapper, a lawyer with the firm Ogletree Deakins who argued the Volks case, the momentum is likely now on the side of industry. “Now that the 5th Circuit has said it agrees with Volks,” stated Sapper, “the odds that another Circuit will say it disagrees with Volks has just dropped precipitously.”
Read the full ruling here
, or read the Volks case here