OSHA Proposes Rule Clarifying Record Retention Requirements for Injury and Illness Logs

By Steve Parascandola and Megan Black

One of the questions often asked by employers is “how long do I have to keep a given record?” Record retention requirements vary from law to law and many companies struggle with the question of how long to keep certain records when there is no clear legal requirement to do so.

The Occupational Safety and Health Act requires that certain records must be maintained for five years. These include injury and illness records, commonly known as OSHA 300 and 301 logs. For the most part, OSHA 300 and 301 logs involve work-related injuries and illnesses that result in death, medical treatment beyond first aid, days away from work, or restricted work activity or job transfer. These reports must be made available to employees, OSHA and the Bureau of Labor Statistics upon request during the record retention period.

However, a federal appeals court held in 2012 that employers can only be cited for failing to maintain such records for up to six months after the date of the injury or illness that led to the report. As a practical matter, this significantly decreased the record retention period related to OSHA 300 and 301 logs and led to confusion among employers.

On July 29, 2015, OSHA published a Notice of Proposed Rulemaking in which the agency asserts that it can cite employers for recordkeeping violations for up to six months after the five-year OSHA retention period expires. This proposed rule change is based on OSHA’s long-held position that an employer’s duty to record an injury or illness continues for the full duration of the general OSHA record retention period (i.e., five years after the end of the calendar year in which the injury or illness became recordable). The Occupational Safety and Health Review Commission has previously upheld OSHA’s position.

The agency is accepting comments on the proposed rule through Sept. 27, 2015. In the meantime, employers would be well advised to maintain such records for the full five year period.

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