OSHA finalizes rule that specifies employers have an ongoing duty to keep records of recordable injuries and illnesses
In the December 19, 2016 Federal Register, the Occupational Safety and Health Administration (OSHA) issued a final rule that clarifies that employers have an ongoing obligation to make and maintain accurate records of work-related injuries and illnesses. OSHA issued this final rule in response to a court decision in the Court of Appeals for the District of Columbia, which held that the Occupational Safety and Health Act did not permit OSHA to impose a continuing recordkeeping obligation on employersrs. One judge’s concurring opinion disagreed with the majority’s view on the Occupational Safety and Health Act, but found that the regulatory text did not create a continuing obligation. OSHA believes that it has the authority to create an ongoing obligation for employers to maintain accurate work-related injury and illness records, and this final rule is intended to clarify its intentions in its recordkeeping regulations. This final rule becomes effective January 18, 2017.
Under OSHA’s final rule, employers have an ongoing obligation to make an accurate record of a work-related injury or illness until the record is made, or until the end of the record-retention-and-access period. The ongoing obligation language is important, as OSHA may cite employers for violations within six months after an incident. Without an ongoing obligation, OSHA may only cite employers for failing to record an incident within six months of the incident occurring. With OSHA’s ongoing obligation, however, OSHA may cite an employer within six months after the record-retention-and-access period, which is five years after the end of the calendar year in which the injury or illness became recordable. Aside from the ongoing duty to make and keep accurate records, this final rule does not impose additional burdens.