OSHA is making a formal request of the Advisory Committee on Construction Safety and Health to submit a recommendation on whether the agency should proceed with proposed amendments to the recordkeeping regulations at 29 CFR Part 1904. The proposed amendments would clarify that employers have a duty to make and maintain accurate records of work-related injuries and illnesses and that this duty is an ongoing obligation. The proposal comes in response to a 2012 court ruling that went against OSHA (AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752).
In that case, the D.C. Court of Appeals ruled that OSHA must issue citations for violations of injury and illness recordkeeping requirements within six months of the violation occurring. This ruling was passed down after OSHA issued citations to an employer for failing to complete its injury and illness logs, forms, and summaries between January 2002 and April 2006. Since OSHA issued the citations in November 2006, which was at least six months after the last unrecorded injury occurred, the employer moved to dismiss the citations because they were not within the time frame prescribed under the Occupational Safety and Health Act. The Secretary said all the violations for which the employer was cited are “continuing violations” that prevent the statute of limitations from expiring until the end of the five-year document retention period in 29 C.F.R.§ 1904.33(a). Therefore, the Secretary argued, all of the employer’s violations, stretching as far back as January of 2002, were still occurring on May 10, 2006 when the inspection began. The Occupational Safety and Health Review Commission (OSHRC) sided with OSHA on the citation. But, upon further contest by the employer, the D.C. Court of Appeals struck down that ruling, siding with the company.
OSHA’s proposed amendments ONLY clarify the ongoing nature of the requirements to keep and maintain the records throughout the entire five (5) year recordkeeping and retention period. The proposed amendments would clarify the following:
- OSHA 300 Log. Employers must record every recordable injury or illness on the Log. This obligation continues through the five year retention period. In addition, during that period, employers must update the Log by adding newly discovered cases and by showing changes to previously recorded cases.
- OSHA 301 Incident Report. Employers must prepare a Form 301 Incident Report for each new recordable illness or injury. This obligation continues throughout the five year retention period. Employers are not required to update the form to show changes to the case that occur after the form is initially prepared.
- Year-end records review, and preparation, certification, and posting of the Form 301A annual summary. These ancillary tasks are intended to be performed at particular times during each year. They are not continuing obligations.
Sources:
http://www.lexology.com/library/detail.aspx?g=b5a253e3-7795-447e-98e6-1941d5523e8c