NEWS ALERT: OSHA Recordkeeping Violations Continue for Five Years

OSHA has issued one of its last final rules for this administration, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” The final rule was published December 19, 2016 in the Federal Register (81 Fed. Reg. 91792). OSHA is amending its recordkeeping regulations to clarify that the duty to make and maintain accurate illnesses is an ongoing obligation. The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness. The duty does not expire just because the employer failed to create the necessary records when first required to do so. The newly released amendments consist of revisions to the titles of some existing sections and subparts and changes to the text of some existing provisions. The amendments add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not currently required to be made.

The final rule amends the OSHA recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so. The final rule revises §1904.29(b)(3) to state: 

How quickly must each injury or illness be recorded?  You must enter each and every recordable injury or illness on the OSHA 300 Log and on a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to record within seven days does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in § 1904.33.

The amendments in this rule are adopted in response to a decision of the United States Court of Appeals for the District of Columbia Circuit. In that case, a majority held that the Occupational Safety and Health Act did not permit OSHA to impose a continuing recordkeeping obligation on employers. One judge filed a concurring opinion disagreeing with this reading of the statute, but finding that the text of OSHA’s recordkeeping regulations did not impose continuing recordkeeping duties. OSHA essentially disregards the original Occupational Safety and Health Act’s (OSH Act) six-month statute of limitations, and the final rule allows OSHA to cite employers for such recordkeeping violations for up to six months after the five-year retention period expires. OSHA disagreed with the majority’s reading of the law, but did agree that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations. This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.

This final rule becomes effective on January 18, 2017.

Article written by Stephen Burt, MFA, BS
Chair, AOHP Government Affairs Committee