In December, OSHA issued a clarifying that the duty of employers to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The final rule, which went into effect on Jan. 18, 2017, amends OSHA’s recordkeeping regulations to clarify 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 in this final rule were adopted in response to a decision of the U.S. Court of Appeals for the District of Columbia Circuit issued in 2012 in which a majority held that the OSH Act does not permit OSHA to impose a continuing recordkeeping obligation on employers.

OSHA’s press release notes that the agency’s “longstanding position has been that an employer's duty to record an injury or illness continues for the full five-year record-retention period, and this position has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993.”

“OSHA disagrees with the majority's reading of the law, but agrees that its recordkeeping regulations were not clear with respect to the continuing nature of employers' recordkeeping obligations,” the notice reads. “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.”

OSHA’s new final rule adds no new compliance obligations and does not require employers to make and maintain records of any injuries and illnesses for which they are not currently required.

“This rule simply returns us to the standard practice of the last 40 years,” said Assistant Secretary of Labor for OSHA David Michaels, PhD, MPH. “It is important to keep in mind that accurate records are not just paperwork; they have a valuable and potentially life-saving purpose.”