OSHA'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. In 2012, the D.C. Circuit issued a decision in AKM LLC v. Secretary of Labor (Volks) reversing the Commission and rejecting OSHA's position on the continuing nature of its prior recordkeeping regulations.
The new final rule more clearly states employers' obligations. "This rule simply returns us to the standard practice of the last 40 years," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "It is important to keep in mind that accurate records are not just paperwork; they have a valuable and potentially life-saving purpose."
The amendments in the final rule add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.
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Historically, "It is the purpose and policy of Congress '....to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.'” 29 U.S.C.A. § 651(b). Gelman, Jon L., 39 N.J. Prac., Workers' Compensation Law § 19.12 (3d ed.).
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).
For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
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