On December 16, 2016, OSHA announced that it will publish in the Federal Register a rule on Monday that clarifies that an employer’s duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation, and does not arise solely at the time the injury or illness occurred.[1]  Therefore, if an employer becomes aware of an illness or injury that was not previously recorded, or learns of an error in the way an injury or illness was recorded in the OSHA Form 300 log, he must revise his records—even if the injury or illness originally occurred more than six months ago, which is the amount of time OSHA has to issue a citation following the occurrence of a violation.

The conflict between OSHA’s interpretation of the recordkeeping rule as a continuing obligation and its 6-month time frame for issuing a citation was litigated in a case ultimately decided by the U.S. Court of Appeals for the District of Columbia Circuit.[2]  The Court actually found that the Occupational Safety & Health Act doesn’t permit OSHA to impose a continuing recordkeeping obligation on employers considering this 6-month enforcement deadline.  Therefore, OSHA saw fit to revise its recordkeeping regulations to clarify that it sees the duty to keep accurate illness & injury logs as a continuing requirement, such that employers must revise the logs to reflect any new information obtained.

This rulemaking actually puts the state of the law in an interesting place—the Court decided that OSHA’s authorizing statute itself does not allow OSHA to enforce the recordkeeping obligation as a continuing one.  In response, OSHA focused upon the concurring opinion that disagreed with the majority’s statutory interpretation but still found that the recordkeeping regulations did not impose such a duty, and OSHA revised the portion of the law that remains under its own control—its regulations.

This conflict between court precedent and OSHA’s regulatory response could eventually be definitively resolved in a future court case; however, an advisable best practice is to follow OSHA’s regulations and revise 300 Logs as appropriate.  The end of 2016 in particular offers a good time for employers to look back on their records for the year and make any necessary changes.  The rule establishing this continuing obligation is set to become effective on January 18, 2017.

[1] Pre-publication version of the rule available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-30410.pdf.

[2] AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

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