OSHA Update: Employer Duty to Record Injuries and Illnesses Extended to Five Years

By Rod Smith, Pat MillerChuck Newcom, Matt Morrison, and Alyssa Levy

On December 19, OSHA issued an amendment to its injury and illness recordkeeping regulation. The change states that an employer’s duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation lasting five years. The new rule takes effect January 18, 2017, two days before President-Elect Trump takes office.

The new rule is in direct response to a 2012 U.S. Circuit Court decision, commonly referred to as Volks. In Volks, OSHA cited the employer for failing to maintain records between January 2002 and April 2006. Volks argued that the citations were barred by the six-month statute of limitations in the OSH Act, which provides that no citation may be issued six months or more after the “occurrence of any violation.” Volks asserted its failure to maintain injury and illness records occurred more than six months before the citations were issued in November 2006, and as such the citations should be barred. The court agreed and vacated the citations.

The Volks decision did not sit well with OSHA. Soon after the decision, OSHA began an effort to amend the regulation to, in its words, “clarify” the existing regulation. The amendments to the rule now state that the duty to make and maintain records is an ongoing obligation for the five-year period of time employers are required to maintain such records. The new rule attempts to override the court’s decision in Volks by saying that employers may be cited any time during the five-year retention period if injury and illness records are found to be out of compliance.

The new rule affects employer OSHA 300 Logs, OSHA 301 Incident Reports, and the OSHA 300A Summary of Work-related Injuries and Illnesses. Many employers substitute a Workers’ Compensation “First Report of Injury,” or similar document, as the OSHA 301 Incident Report. Under existing regulations, all of these forms must be retained by the employer for five years. Given the possibility that errors or omissions in OSHA 300 Logs can now be cited no matter when they occur during the five-year period, employers are advised to pay close attention to their recordkeeping policies and practices. Here are the highlights:

  • All recordable injuries and illnesses must be recorded on the OSHA 300 Log within seven calendar days of receiving information that a recordable injury or illness has occurred.
  • If the entry is not made within seven calendar days, there remains a continuous duty to do so for the five year period that the records are retained.
  • If additions or corrections to the OSHA 300 Log are necessary, they too must be made as soon as possible. This obligation runs for five years. Additions or corrections could include the discovery of previously unrecorded cases, “lined-out” cases later found not to be recordable, or even changes to the classification or description of a previously recorded case. Additions and corrections to the 301 Incident Report and the 300A Summary are not required.
  • Required records must be retained for five calendar years.
  • Review your OSHA 300 Logs for accuracy and completeness at the end of 2016. Prepare and post the OSHA 300A Summary for each establishment in your company by February 1, 2017.

Rod Smith, Pat Miller, Chuck Newcom, Matt Morrison and Alyssa Levy are part of Sherman & Howard’s Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.


Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2016 Sherman & Howard L.L.C.                                                                                   December 21, 2016