29 CFR 1904

·         When no records have been kept and there have been injuries or illnesses that should have been recorded under the regulations, a citation for failure to keep records will normally be issued.

·         When no records are kept and there have been no injuries or illnesses, a citation will not be issued.

·         When the required records are kept but no entry is made for a specific injury or illness that meets the requirements for recordability, a citation for failure to record the case will normally be issued.

·         When the required records are kept but have not been completed with the detail required by the regulation, or the records contain minor inaccuracies, the records will be reviewed to determine if there are deficiencies that materially impair the understandability of the nature of hazards, injuries and illnesses in the workplace. If the defects in the records materially impair the understandability of the nature of the hazards, injuries and/or illnesses at the workplace, an other-than-serious citation will normally be issued. If not, no citation will be issued.

How far back can OSHA go to cite for recordkeeping violations? A recent court case has changed the story on that.

Recent Court Decision Limits Recordkeeping Citations

A recent decision by a District of Columbia circuit court means that OSHA can no longer cite employers for recordkeeping violations that occurred more than 6 months prior. The case involved Volks Constructors in Louisiana, which was cited by the agency 5 years after the first of more than 60 violations.

The court overturned an Occupational Safety and Review Commission decision that held that every day an OSHA log was incorrect constituted a "continuing violation."

According to the law firm Constangy, Brooks & Smith, the recent decision is "significant because it dramatically shortens the time that an employer may be cited for OSHA injury and illness recordkeeping violations."

In the past, OSHA has made the case that employers need to maintain the 300 and 301 logs for the present year and for 5 prior years. According to the decision, for an injury reported on May 1, OSHA could cite an employer for failing to record it beginning on May 8. "A citation issued within the following 6 months, and only the following 6 months, would be valid," the court determined.