The U.S. Occupational Safety and Health Administration released a new rule that clarifies its recordkeeping procedure. Previously, there was confusion over an employer’s obligation to create and maintain records of workplace injuries and illnesses.
OSHA’s rule clearly states it’s an employer’s duty to create and keep records for a full five-year retention period. OSHA has long held this view even after court challenges and objections to its rule.
The final rule will go into effect Jan. 18, 2017.
Why did OSHA release clarification?
According to the law firm Seyfarth Shaw LLP (writing for Lexology), OSHA initially proposed a final rule to help improve tracking workplace injuries and illnesses back in July 2015.
However, the proposal was not initially clear as to whether employers had to continue maintaining records, even old ones. OSHA’s clarification in the middle of December 2016 sheds light on the safety agency’s expectations.
“The final rule will go into effect Jan. 18, 2017.”
OSHA’s rule states it’s an employer’s duty to record all injuries and illnesses in the workplace. If an employer fails to keep and maintain records, they will be subject to citations for the full five-year retention period records must be kept.
Opposition to the rule
However, not all employers are happy with this rule, and it remains a point of contention in the workplace. Employers are concerned about OSHA’s possible overreach when issuing fines. A 2012 court decision, AJM LLC v. Secretary of Labor (Volks), ruled OSHA can’t cite employers for failing to keep records if the violation occurred six months before the citation.
However, according to Baker & Hostetler LLP (writing for JD Supra Business Advisor), OSHA assumed a violation continues indefinitely and thus, they are able to issue citations for up to five years after a violation first happened.
Mark Freedman, U.S. Chamber of Commerce’s Executive Director of Labor Law Policy, said OSHA’s refusal to accept the six-month statute of limitations puts the recordkeeping rule on shaky grounds, explained Baker & Hostetler.
The rule has now become a point of controversy, and with a new administration on the horizon, Freedman explained it could be overturned as a result of the Congressional Review Act if Congress and President-elect Trump agree on the matter. Otherwise, a Trump administration could simply delay enforcement.
Even though the rule has garnered controversy, employers should still prepare as if it will go into effect in January.
OSHA wants employers to keep detailed records because the information can serve a few important purposes. First, injury and illness reports let employers know about the various hazards and illnesses and make an effort to improve safety. Injury and illness reports are also important to determine if safety and health programs are actually working to lower accident rates.
Employees can also use information from recordkeeping to learn more about dangers they face in a workplace. Workers are more likely to follow safety advice if they are aware of workplace hazards. They’re also more willing to report violations of safety standards. OSHA stated a combination of awareness and active participation in safety programs helps reduce the number of hazards in a workplace.
Finally, records help the Bureau of Labor Services develop statistics on injuries and illnesses across the country. This data is used by OSHA, Congress and policymakers at the federal, state and local levels to make informed decisions about workplace safety.
OSHA’s clarification on its recordkeeping rule signals to employers that they should prepare to create and maintain records for five years come Jan. 17 even if it might be challenged further in court.