But That Was 4 Years Ago! According to OSHA, Recordkeeping Requirements are ‘Ongoing’

Here’s a scenario: 4 years ago, your safety manager became seriously ill. He continued to work for you for several more years, but had a lot of absences and wasn’t as proficient as he had been before. Eventually, his health forced him into retirement, and at that point, you discovered that your Log 300 records were not quite complete. Some injuries and illnesses were never recorded, and no one ever verified and signed off on the Log. But, it’s been 4 years! Do you have to correct your Log 300?

According to the U.S. Occupational Safety and Health Administration (OSHA), the answer is—and always has been—“Yes,” and a rule change that was finalized in December and that goes into effect on January 18 is intended to clarify the requirement and give it sharper enforcement teeth.

OSHA Loses in Court

Employers are required to retain their illness and injury logs—Forms 300 and 301—for 5 years. If OSHA, during an inspection, discovers that the Logs are incomplete and that the employer knew that they were incomplete, OSHA will cite the employer for a violation of its recordkeeping standards. That’s what happened in the case of AKM, LLC, d/b/a Volks Constructors. In 2006, OSHA inspected Volks’s worksite in Prairieville, Louisiana for failing to review and verify its OSHA Log 300 records between 2002 and 2006. The employer appealed the citation, arguing that OSHA could not cite it for violations that had occurred so long ago, because the Occupational Safety and Health Act, in section 9(c), subjects OSHA to a 6-month statute of limitations. OSHA argued, in response, that an employer’s duty to maintain illness and injury records is “ongoing,” and that this principle has been upheld by the Occupational Safety and Health Review Commission (OSHRC) more than once.

OSHRC ruled on OSHA’s side in the Volks case, too, in 2007. But the employer appealed to the United States Court of Appeals for the District of Columbia Circuit. The District Court overturned OSHRC, ruling that OSHA’s “continuing violation” argument subverted the 6-month statute of limitations.

‘Clarifying’ the Rule

In response to the ruling, OSHA has “clarified” its recordkeeping rule (29 CFR part 1904) to explicitly require employers to treat injury and illness records as a continuing obligation. OSHA insists that the change is a “clarification” rather than a substantive change. The obligation to record an injury or illness under the revised standard continues for as long as the employer must maintain records for the year in which the injury or illness became recordable. The obligation does not expire if the employer fails to initially create a record.

Specifically, the revision requires employers to:

  • Record all injuries and illnesses. Employers must record every recordable injury or illness on the OSHA 300 Log through the 5-year record retention and access period, updating the Log by adding cases not previously recorded and by noting changes to previously recorded cases.
  • Prepare an incident report. Employers must prepare a Form 301 Incident Report for each recordable illness or injury. This obligation also continues throughout the 5-year retention and access period. Unlike with the Log, employers are not required to update the Incident Report to show changes to the case that occur after the form is initially prepared.

OSHA notes that the requirements for year-end records review, preparation certification, and posting of the Form 300A annual summary are ancillary tasks intended to be performed at particular times during each year. Therefore, these are not continuing obligations.