On December 19, 2016, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a final rule amending its record keeping regulations, located at 29 C.F.R. Part 1904. The Amendment clarifies that a covered employer has an on-going obligation to create and maintain accurate records of recordable work-place injuries and illnesses. It did so in response to the decision in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

The Occupational Safety and Health Act (“Act”) requires covered employers to create and preserve records of certain workplace injuries and illnesses that are prescribed by the Secretary of Labor. Pursuant to this delegated authority, OSHA has issued regulations that require covered employers to record workplace injuries and illnesses on the OSHA 301 Incident Report form and on the OSHA 300 Log form, within seven days of learning of a recordable workplace injury or illness, to review the Log for accuracy at the end of each calendar year and to correct any deficiencies found during the annual review.  A covered employer must prepare, certify and post annual summaries of the recordable workplace injuries and illnesses that occurred during the previous year by February 1 and keep them posted until April 30.  OSHA regulations further require covered employers to maintain its Logs, Incident Report forms and annual summaries for five calendar years and to make this information available to its employees, OSHA, and the Bureau of Labor Statistics.  OSHA may issue citations for violations of the Act, but must do so within six months after “the occurrence of any violation.”  29 U.S.C. § 658(c). The new continuing obligation provides the basis for record-keeping violations to be timely years after a reportable incident under the rationale of the AKM case.

When this final rule becomes effective on January 18, 2017, covered employers will have a continuing obligation to create and maintain accurate records of recordable workplace injuries and illnesses and to update their records during the five year retention period.

To comply with OSHA’s amended regulations, employers should:

• Ensure that it completed OSHA 301 Incident Report forms for all recordable workplace injuries and illnesses that occurred during the previous year and ensure that its OSHA 300 Log form accurately reports all recordable workplace injuries and illnesses and, if appropriate, update the Log with any recordable workplace injuries and illnesses not previously recorded.

• Conduct an audit of its OSHA 300 Log forms for the past five years to confirm that they accurately reported all recordable workplace injuries and illnesses that occurred during the past five years. The audit should also include a review of the employer’s OSHA 301 Incident Report forms to ensure that the employer completed forms for each recordable injury and illness during the past five years.