OSHA-Related Documents: Creation and Retention

It is important to note that any documents produced can be utilized to issue citations, thus, the employer should not produce any documents unless required by law.

• By Mark A. Lies, Ilana R. Morady
• Jul 01, 2015

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.

Categories of Documents
The following list sets out the typical OSHA standards and the General Duty Clause that may require an employer to create, retain, and produce certain documents during the course of an inspection, if requested by the OSHA compliance officer. Obviously, whether the employer is required to have certain of these programs or others will depend on the nature of the work activities at the site. This list is focused on the standards that are applicable to employers in general industry (29 CFR 1910 et. seq.) and not construction (29 CFR 1926 et. seq.), although some general industry standards are substantially similar and also applicable to the construction industry. There are many hazards that are common to each industry, but the regulatory obligations frequently differ. For employers in the construction industry, it will be necessary to reference the existing regulations addressing hazards in that industry when responding to an OSHA document request.

During the inspection, the employer should request the compliance officer to make the document request in writing (it can be handwritten) so there is no confusion over what documents are being requested and so the employer is not cited for failure to produce a document it did not believe was requested by the compliance officer. The employer's on-site representative should review this request with management and decide which documents will be produced to the compliance officer. It is important to remember that the employer has no duty to produce certain documents (e.g., post-accident investigations, insurance audits, consultant reports, employee personnel information) because no regulation requires such production. It is important to note that any documents produced can be utilized to issue citations, thus, the employer should not produce any documents unless required by law.

Control of Hazardous Energy–Lockout/Tagout (LOTO)

• 29 CFR 1910.147 requires the employer to develop procedures to protect employees who service or maintain its machines against unexpected energization or start-up of equipment or release of stored energy.
• 29 CFR 1910.147(c)(7). The employer must train its "authorized" employees how perform LOTO with these procedures, as well as "affected" employees who may be exposed to the equipment.
• 29 CFR 1910.147(f)(2) requires the on-site employer and outside employer to inform each other of their respective lockout or tagout procedures.

Document retention: The LOTO standard requires employers to certify that periodic inspections have been performed at least annually. Accordingly, employers should retain certifications for one year or until a new certification is created. It is also advisable that employers retain employee LOTO training records for the duration of employment.

Occupational Noise Exposure

• 29 CFR 1910.95 requires the employer to provide a hearing conservation program (education, annual audiograms, hearing protection) for employees who are exposed to noise levels equal to or exceeding an eight-hour time weighted average (TWA) of 85 decibels on the A scale. The employer must conduct a noise survey to determine those jobs that may require employees to be included in the program. Employees who suffer hearing loss at certain frequencies must be included on the OSHA 300 Log. The employer must develop a written program and administer it.

Document retention: Employers must retain noise exposure measurement records for two years. Employers also must retain audiometric test records for the duration of the affected employee’s employment.

Personal Protective Equipment (PPE)

• 29 CFR 1910.132. The employer must conduct an initial certified hazard assessment of the workplace to determine whether hazards are present that require personal protective equipment for eyes, face, head, and extremities to protect against injury. The employer must provide each employee with the necessary PPE, train the employee in the use of PPE, and enforce its use. The employer must pay for the PPE with limited exceptions. A second certification is required to confirm that the PPE was provided, the employee received training in how to utilize it, and that the employee "understood" the training.

Document retention: Employers should retain the written certifications of a hazard assessment and employee training for the duration of employment for all employees exposed to identified hazards. It is also advisable for employers to retain employee PPE training records for the duration of employment.

Hazard Communication (Employee Right to Know)

• 29 CFR 1910.1200 requires the employer to develop a written hazard communication program to protect employees against any hazardous chemical that presents a physical or health hazard.  The employer is required to conduct an assessment to determine which hazardous chemicals may be present, to inform employees of the presence of the hazardous chemicals, train employees on how to read a Safety Data Sheet (SDS) for each hazardous chemical. Employees are entitled to access to the SDS and to obtain copies.

Document retention: Employers must retain SDSs for the duration of employment plus 30 years for all employees exposed to the chemical in question, unless there is some other record of the identity of the substance or chemical, where it was used, and when it was used. The employer must also be sure it has a copy of all SDSs for all chemicals that are currently in use. It is also advisable for employers to retain employee hazard communication training records for the duration of employment.

Process Safety Management

• 29 CFR 1910.119 requires employers who utilize certain toxic, reactive, flammable, or explosive chemicals in certain quantities to develop a written 14-part PSM program. The PSM program addresses all aspects of work around the covered "process" that utilizes the chemicals.
• 29 CFR 1910.119(h) requires training of contractor employees who perform certain work around the covered process concerning the hazards and elements of the PSM program.

Document retention: Employers must retain process hazard analyses (PHAs) for the life of the covered process. In addition, the employer must prepare a written record that each employee who is involved in the operation of the process was trained and understood the training. These verification records should be retained for the length of the employee's employment. We recommend that employers also retain all process safety information (PSI) used for developing, maintaining, auditing, and otherwise managing all processes for the life of the processes. Any incident investigation conducted under the PSM standard must be retained for five years. Additionally, employers must retain the two most recent compliance audit reports conducted under the PSM standard.

Emergency Action Plans

• 29 CFR 1910.38 requires the employer to develop an emergency action plan (EAP) to protect employees against the hazards of fires or other emergencies. The EAP must include provisions for reporting a fire or other emergency, evacuation procedures, and the alarm system. The employer must train each employee. (29 CFR 1910.38(e))

Document retention: There are no specific document retention requirements under 29 CFR 1910.38, aside from the requirement that employers develop and maintain a written EAP. If the employer has 10 or fewer employees, the plan does not have to be in writing.

Fire Extinguishers

• 29 CFR 1910.157 requires the employer to provide fire extinguishers and mount, locate, and identify them so that they are readily accessible to employees. If employees are expected to use the fire extinguishers, the employer must provide training upon initial employment and at least annually thereafter. The employer must develop an educational program if it expects the employees to use the fire extinguishers. Many employers specifically prohibit employees from using the fire extinguishers to avoid this training obligation.

Document retention: If the employer permits the employees to use the fire extinguishers, the educational program and training should be in writing and maintained for the length of employment.

Permit-Required Confined Spaces

• 29 CFR 1910.146 requires the employer to identify all confined spaces within the workplace that employees or outside contractors may be required to enter and contain a hazardous atmosphere, engulfment hazard, an internal configuration that could trap or asphyxiate an entrant, or other serious safety or health hazard. The employer must develop a written program and procedures for employees who enter the confined spaces. Only trained and authorized employees can enter the space.
• 1910.146(c)(8) requires the host-employer to provide certain information to other contractors who will have their employees enter the space.

Document retention: Employers must retain each canceled entry permit for at least 1 year and review them within one year after each entry. It is also advisable to retain employee confined space training records for the duration of employment.

Bloodborne Pathogens

• 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 whether there is such exposure and, if so, to train employees in the hazards, provide PPE, and 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 three years from the date on which the training occurred, although it is advisable to retain training records for the duration of employment.

Respiratory Protection

• 29 CFR 1910.134 requires the employer to conduct an assessment of the workplace to determine whether 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 whether they are physically capable of wearing a respirator, to provide such respiratory protection at the employer’s cost, and to train employees how to wear and maintain respiratory protection. The employer must enforce the use of the respiratory protection.

Document retention: Employers must retain records of employee medical evaluations for the duration of employment plus 30 years. Employers also must 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 the 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 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" that 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 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 work site 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 workers’ 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 whether it is recordable.

Document retention: The OSHA Log, the annual summary, and the OSHA Incident Report forms must be retained by employers for five 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 employers industry. Some examples of this legal obligation may be: ergonomics, heat illness, workplace violence, or combustible dust.

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 also may fall under exposure/medical recordkeeping requirements (see Electrical Safety, above).

Disciplinary Records
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.

Conclusion
In addition to the summary of OSHA-related documents discussed above, there are numerous other OSHA regulations that may have document retention requirements. If an employer is subject to any of 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.

This article originally appeared in the July 2015 issue of Occupational Health & Safety.