The Labor Department’s Occupational Safety and Health Administration (OSHA) has issued a “clarification” to its reporting rules for workplace injuries and illnesses that some experts say is an attempt to circumvent a legal precedent.

On December 19, OSHA published a final rule that says an employer can be issued citations for workplace injuries or illnesses within five years of the date of the incident. It becomes effective on January 18, 2017. However, the rule appears to contradict a 2012 decision in the U.S. Circuit Court for the District of Columbia that said OSHA had no authority to issue citations against an employer after six months from the date of a workplace injury or illness.

“This rule simply returns us to the standard practice of the last 40 years,” said David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. “It is important to keep in mind that accurate records are not just paperwork; they have a valuable and potentially life-saving purpose.”

However, labor attorneys with the Sherman & Howard law firm in Denver disagree.

“The new rule attempts to override the court’s decision … by saying that employers may be cited any time during the five-year retention period if injury and illness records are found to be out of compliance,” a group of lawyers with the firm writes on the JD Supra website.

Attorneys Darren A. Crook and Michael T. Taylor of the Baker Hostelter law firm say the rule might not last long.

“The U.S. Chamber of Commerce’s Executive Director of Labor Law Policy, Mark Freedman, stated that ‘[t]he court … was unequivocal that the statute of limitations for issuing citations on recordkeeping violations is six months despite OSHA’s attempts to say six months means five years,’” the attorneys write in a blog post on their firm’s website. “As a result, the rule currently stands on tenuous grounds.”

Crook and Taylor say the rule could be overturned by Congress through the Congressional Review Act. It could also be challenged in federal court or before the Occupational Safety and Health Review Commission. Finally, the Trump administration, which takes office two days after the rule goes into effect, could simply delay enforcement of the rule.

However, the attorneys warn that employers must be prepared for the rule’s implementation.

“If the rule goes unchallenged, employers could be subject to numerous, years-old citations that they would have to defend with stale evidence,” the lawyers write.

2016 has been an active year for OSHA when it comes to rules for employers reporting injuries.

In May, the agency issued a new rule that requires companies to make all of their injury and illness data public under the “Improve Tracking of Workplace Injuries and Illnesses” rule, which revises OSHA’s “Recording and Reporting Occupational Injuries and Illnesses” regulation. Under the new rule, employers in high-hazard industries will send OSHA injury and illness data that the employers are already required to collect, and it will be posted on the agency’s website.

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