On July 29, 2015, the federal Occupational Safety and Health Administration issued a proposed rule to clarify that employers have a continuing obligation to make and maintain accurate records of work-related recordable injuries and illnesses. This position makes it an ongoing violation each day an employer fails to make or keep required records for up to five years. If the proposed changes are adopted, employers may face tougher OSHA scrutiny of their records and may be accountable for violations longer than expected.
The proposed rule arises from a debate over the enforcement period for creating and maintaining records of reportable incidents. Under the OSHA recordkeeping regulation (29 CFR 1904), covered employers are required to make and keep records of serious occupational injuries and illnesses for a period of five years following the year to which they relate. (§1904.33(a)). The Occupational Safety and Health Act (OSH Act), however, contains a statute of limitations providing that no citation may be issued after the expiration of six months following “the occurrence of any violation.” (29 U.S.C. § 658(c)).
When the issue came before one court, it determined that the obligation to make a record of a recordable incident is separate from the obligation to keep a record of the incident. It held that the failure to create a record of the incident may be cited up to six months following the incident under the six-month statute of limitations. The failure to keep records of a recorded incident was held to be a violation that can be cited under the five-year retention rule.
OSHA is proposing to amend its recordkeeping regulations to clarify that employers covered by the recordkeeping requirements have a continuing obligation to make and maintain accurate records of all recordable injuries and illnesses. This obligation continues for as long as the employer must maintain records for the year in which an injury or illness became recordable, and it does not expire at six months if the employer fails to create a record when first required to do so. Instead, the failure to create a record is an ongoing violation enforceable through the five-year record retention period. The proposed regulatory amendments also impose on employers an annual duty to review illness and injury logs and incident reports for accuracy.
Read the text of the proposed rule here. Members of the public can submit written comments on the proposed rule at http://www.regulations.gov. Comments must be submitted by Sept. 28, 2015.