As most employers are aware, OSHA inspections typically involve a request for the employer to produce certain documents. In many cases, employers are unsure of what documents the compliance officer is entitled to see and copy. Employers can also be unsure of how long to retain certain documents required under OSHA. Some OSHA regulations require a specific retention period for documents. Other OSHA regulations, however, do not (although it is often advisable to retain certain documents even if retention is not technically required). This article is intended to give general guidance in these areas. (Continued from part one last week)
|29 CFR 1910.1030 – requires an employer to develop a written program to protect employees at the workplace who are reasonably expected to have occupational exposure to bloodborne pathogens, i.e., bloodborne diseases. The employer is required to assess all jobs to determine if there is such exposure and if so, to train employees in the hazards, provide PPE and to develop procedures for medical evaluation and treatment if an employee has actual exposure. Document retention: Employers must retain employee exposure records for the duration of employment plus 30 years. Training records must be retained for 3 years from the date on which the training occurred, although it is advisable to retain training records for the duration of employment.
|29 CFR 1910.134 – requires the employer to conduct an assessment of the workplace to determine if there are harmful dusts, fumes, mists, sprays, or vapors which may create a respiratory health hazard. If there are such hazards, the employer is required to develop a written respiratory protection program, to evaluate employees to determine if they are physically capable of wearing a respirator, to provide such respiratory protection, at the employer’s cost, and train employees how to wear and maintain respiratory protection. The employer must enforce use of the respiratory protection. Document retention: Employers must retain records of employee medical evaluations for the duration of employment plus 30 years. Employers must also retain fit test records for respirator users until the next fit test is administered.
|Electrical Safety (Safety-Related Work Practices)
|29 CFR 1910.331-.335 – requires an employer who will permit its employees to perform work on or in the vicinity of exposed energized parts (which cannot be locked out and tagged out) to provide extensive training in the hazards of working or in the vicinity of live electrical equipment, protective clothing and insulated tools and devices. The employer must designate employees as “authorized” in order to perform such work or “unqualified” in which case such employees cannot perform such work. The employer may be required to conduct an electrical exposure hazard survey of electrical equipment under NFPA 70E in order to determine what PPE should be used, what training is necessary, and to otherwise be in compliance with OSHA safety requirements. Document retention: OSHA’s electrical safety standards do not have any specific record retention requirements; however, it is advisable to retain employee training records under these standards for the duration of employment. If an employer conducts an electrical exposure hazard survey, the employer should retain it for as long as the hazard exists.
|Access to Employee Exposure and Medical Records
|29 CFR 1910.1020 – requires employer to inform employees of their right to have access to all records maintained by the employer that reflect an employee’s exposure to any toxic substance or harmful physical agent (e.g., chemicals, dusts, vapors, noise, mold, etc.) or any medical records which the employer maintains on an employee, except for certain exceptions. Employees are entitled to have access and to obtain a copy at the employer’s expense. Document retention: Employers must retain employee exposure records for the duration of employment plus 30 years. If the employer maintains certain employee medical records, the employer must retain them for the duration of employment plus 30 years.
|Powered Industrial Trucks
|29 CFR 1910.178 – requires an employer to develop a written program to train all employees who will be required and authorized to operate powered industrial trucks (including forklifts, manlifts, etc.) as to the hazards of such equipment and to certify their training after they receive classroom-type training and are actually observed operating the equipment under the physical conditions at the workplace, such as aisles, ramps, etc. The employee must be retrained and recertified every three years, at minimum, or after an accident or “near miss” which resulted from an unsafe act. Document retention: The powered industrial truck standard does not specify how long training certifications must be retained after the initial certification or the certification required every three years or after a “near miss”. It is advisable that employers retain the training certifications for the duration of employment for each employee.
|OSHA 300 Log of Work-Related Fatalities, Injuries, and Illness
|29 CFR 1904.0 – the OSHA 300 Log must be maintained by employers unless there is an exemption, based on the NAICS code or the size of the employer. The employer is required to record on the Log, within seven (7) calendar days, each fatality, injury, or illness that is recordable under OSHA definitions. The host employer is required to enter into its Log the injuries or illnesses of outside employees at the worksite under certain conditions, for example, temporary employees who are under the direction and control of the host employer. The OSHA 300 Log must be maintained and certified by the employer on an annual basis. For each entry on the Log, there must be an OSHA 301 Incident Report form, or its equivalent, which can be the employer’s First Report of Injury or Illness form required by the State worker’s compensation law. An annual summary must be prepared and posted using the 300-A annual summary form or an equivalent. In order to comply with OSHA’s recordkeeping requirements, it is critical that employees are trained from their initial employment that they must immediately report any occupational injury or illness to determine if it is recordable. Document retention: The OSHA Log, the annual summary, and the OSHA Incident Report forms must be retained by employers for 5 years following the end of the calendar year that these records cover. The OSHA Log must be maintained on an “establishment basis” based on NAICS codes. It is possible that employers may have some “establishments” where a Log must be maintained, and others where maintaining a Log is not necessary.
|General Duty Clause
|Section 5(a)(1) of the OSHA Act requires an employer to identify “recognized hazards likely to cause serious injury or death” to an employee, which hazards may not be regulated by a specific OSHA regulation, and to take “feasible” actions to abate or correct such hazards. This duty can be based upon the “recognition” of the hazard in the employer’s own, existing programs, or within the employer’s industry. Some examples of this legal obligation may be:
Document retention: While there are no specific standards for “recognized hazards” covered under the General Duty Clause, and thus no specific record retention requirements, it is advisable for employers to retain any training records it has developed addressing any “recognized hazards” for the duration of employment, including the written policy, training records and documents that evidence discipline for violation of the policy. Remember that certain documents related to General Duty Clause obligations may also fall under exposure/medical recordkeeping requirements (see above).
|There is no regulation that requires an employer to maintain written records of employee discipline for violations of the employer’s safety and health policies. If, however, the employer wants to credibly assert the “unavoidable employee misconduct” defense to avoid liability for OSHA citations, the employer is highly recommended to maintain written records of discipline indicating the nature of the violation, the date, the name of the employee who committed the violation and the name of the supervisor who imposed the discipline. This same documentation can be useful in the event that the employer has to defend an employment discrimination or wrongful termination action by being able to prove that the action was based on a legitimate non-discriminatory reason, that is, violation of safety and health policies.
In addition to the summary of OSHA-related documents discussed, there are numerous other OSHA regulations that may have document retention requirements. If an employer is subject to any these regulations, the regulations must be reviewed, and appropriate document retention procedures must be developed.
Remember that it is critical that an employer control the flow of information during the inspection, including the information contained in documents. By avoiding production of documentary evidence that is not required by law, the employer reduces the potential for regulatory citations. It is also critical that employers understand what documents they are required to create and retain. Even when an OSHA standard does not specify how long certain records must be retained, it is advisable to consider retaining such records for a significant length of time. For example, many OSHA standards require employee training, but do not necessarily require documentation of training or retention of training documents. Nonetheless, it is advisable to prepare and retain training documents for the duration of employment because training documents are often indispensable in asserting certain defenses to citations.
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