Final Rule Effective January 18, 2017

The U.S. Occupational Safety and Health Administration (OSHA) has issued a final rule, effective January 18, 2017, that clarifies an employer's continuing obligation to make and maintain an accurate record of each employee recordable injury and illness.

Background
OSHA's recordkeeping regulations require employers to record information about certain work-related injuries and illnesses on an OSHA 300 Log. Employers must enter each recordable injury or illness on the OSHA 300 Log, as well as on a supplementary OSHA 300 Log, within 7 calendar days of receiving information that a recordable injury or illness has occurred. At the end of each calendar year, employers must create, certify, and post annual summaries of the cases listed on their 300 Logs for the prior calendar year. Generally, employers must retain their OSHA Logs, Incident Reports and annual summaries for 5 years following the end of the calendar year that they cover.

If an employer initially fails to record a recordable injury or illness on the OSHA 300 log or the corresponding OSHA 301 Incident Report, the employer still has an ongoing duty to record that case; as long as an employer fails to comply with the ongoing recording duty, there exists an ongoing violation of OSHA's recordkeeping requirements. OSHA can cite employers for such recordkeeping violations for up to 6 months after the 5-year retention period expires.

Final Rule Clarifies Continuing Obligation
The final rule clarifies that if an employer fails to record an injury or illness within 7 days, the obligation to record continues on past the 7th day, such that each successive day where the injury or illness remains unrecorded constitutes a continuing "occurrence" of the ongoing violation. If the employer records the injury on some later day than the 7th day, the violation ceases to occur at that point, and any citation would need to be issued within 6 months of the cessation of the violation.

The final rule clarifies that an employer cannot avoid the five-year maintenance requirement by failing to make the record in the initial 7 days; rather, the obligation to make the record, for both the OSHA 300 Log as well as the OSHA 301 Incident Report, continues throughout the 5-year maintenance period even if the employer fails to meet its initial obligation.

Note: 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.

The final rule becomes effective January 18, 2017. To read the text of the final rule, please click here.

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