Employers’ duty to keep and maintain accurate records rule now final

Duty to record work-related injuries and illnesses continues for as long as the employer must keep records

Posted December 19, 2016

OSHA’s final rule to clarify the employer’s continuing obligation to make and maintain accurate records for each recordable injury and illness appeared in the December 19, 2016, Federal Register.

The rule explains that the duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so.

The amendments consist of revisions to the titles of some existing sections and subparts and changes to the text of some existing provisions. According to OSHA, the amendments add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not currently required to be made.

OSHA adopted the amendments in response to a decision of the United States Court of Appeals for the District of Columbia Circuit. In that case, a majority held that the Occupational Safety and Health Act does not permit OSHA to impose a continuing recordkeeping obligation on employers. While the Agency says it disagrees with the majority’s reading of the law, OSHA does agree that its recordkeeping regulations were not clear about the continuing nature of employers’ recordkeeping obligations. This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.

The final rule becomes effective on January 18, 2017.

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