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OSHA Clarification of Recordkeeping Requirements

OSHA recently issued one of its last rules, “Clarification of Employer’s Continuing Obligation to “Make and Maintain Accurate Records of Each Recordable Injury and Illness.” 81 Fed. Reg. 91792 (December 19, 2016).

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 an don 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.

OSHA's longstanding position has been that an employer's duty to record an injury or illness continues for the full five-year record-retention period, and this position has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993. In 2012, the D.C. Circuit issued a decision in AKM LLC v. Secretary of Labor (Volks) reversing the Commission and rejecting OSHA's position on the continuing nature of its prior recordkeeping regulations.

The new final rule more clearly states employers' obligations. "This rule simply returns us to the standard practice of the last 40 years," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "It is important to keep in mind that accurate records are not just paperwork; they have a valuable and potentially life-saving purpose."

The amendments in the final rule add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.

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