OSHA Clarifies Ongoing Recordkeeping Obligations

January 13, 2017

OSHA Clarifies Ongoing Recordkeeping Obligations

On Dec. 19, 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule amending its recordkeeping regulations. The amendments were adopted to clarify that an employer’s duty to create and maintain work-related injury or illness records is an ongoing obligation. The final rule becomes effective on Jan. 18, 2017.

The clarification explains that an employer remains under an obligation to record a qualifying injury or illness throughout the five-year record storage period, even if the incident was not originally recorded during the first six months after its occurrence.

The final rule does not create any additional or new recordkeeping obligations for employers.

Recordkeeping Requirements
OSHA requires employers to create and maintain records about workplace injuries and illnesses that meet one or more recording criteria. Specifically, employers must:

Create and update a log of work-related injuries and illnesses (OSHA 300 Form);
Create and maintain injury and illness incident reports (OSHA 301 Form); and
Create and display an annual summary of workplace incidents (OSHA 300A Form) between Feb. 1 and April 30 of each year.

Employers must keep these records for at least five years. The five-year retention period begins on Jan. 1 of the year following the year covered by the records. For example, the five-year retention period for incident reports created on Jan. 23, 2015, June 15, 2015, and Nov. 4, 2015, begins on Jan. 1, 2016.

Penalties for Noncompliance
OSHA has the authority to issue citations and assess fines against employers that violate recordkeeping laws. However, in general, the OSH Act does not allow for a citation to be issued more than six months after the occurrence of a violation.

OSHA is of the opinion that a violation exists until it is corrected. Therefore, the six-month period to issue citations and assess penalties begins on the date of the last instance of the violation. For example, if a violation that started on Feb. 1 was corrected on May 15, the six-month period would begin on May 15, and OSHA would have until Nov. 15 to issue a citation.

OSHA also asserts that uncorrected violations are considered ongoing violations, and that each day of noncompliance is subject to a separate penalty.

Action Steps

Review your workplace injury and illness recordkeeping procedures and ensure that they allow for accurate and timely compliance with recordkeeping requirements.
Audit your injury and illness records to make sure all qualifying incidents are recorded during the five-year record storage period.

The Final Rule
According to OSHA, adopting the final rule and amending its recordkeeping regulations was necessary because the previous regulations did not allow OSHA to enforce an employer’s incident recording obligation as an ongoing requirement. In fact, a federal circuit court has held that the former regulations did not authorize OSHA to “cite the employer for a record-making violation more than six months after the recording failure.” The court also noted that there is a discrepancy between the OSH Act and the regulations, and that while the OSH Act allows for continuing violations of recordkeeping requirements, the specific language in the regulations does not implement this statutory authority and does not create continuing recordkeeping obligations.

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