Managing Safety-Related Documents

Managing Safety-Related Documents

Thursday, October 04, 2012 3:00 AM
by Chris Kilbourne

Managing safety-related documents properly and carefully is very important, especially if you're ever involved in an OSHA inspection.

To get hold of documents in the course of an inspection or investigation, OSHA can get a subpoena duces tecum. This is a subpoena requiring evidence to be produced.
While non-mandatory documents do not need to be produced upon request, OSHA can issue a subpoena duces tecum to obtain these materials prior to issuing citations.
OSHA has used its subpoena power to access items such as:

• Sampling results
• Audit records
• Calibration records
• Consultant and supervisor logs and notes
• Training records and syllabi
• Purchase orders

If you're faced with this situation, be sure to consult counsel before you comply. Some subpoenaed documents may be privileged, and it may be possible to quash the subpoena.
This type of situation often inspires companies to create document retention and destruction programs.

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Document Management Guidelines

• It's important to consider mandatory record retention requirements when crafting such a program (there is no "one size fits all" approach).
• Documents covered by such a program should be destroyed consistently, not just documents considered to be potentially harmful.
• Once litigation is anticipated, documents must be preserved to avoid "spoliation" claims.
• All training records and related materials should be kept as long as possible.

Criminal Penalties

Criminal penalties can be imposed under section 17(G) of the OSH Act and 18 USC 1001. These sections make it a crime to falsify records or any documents required under the OSH Act. These carry monetary penalties and incarceration and do not require an accident in order to trigger prosecution.
Specifically, section 17(g) says:
Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.
The Mine Health and Safety Act (MSHA) has similar, but harsher, provisions under Section 110—5 years imprisonment and $250,000 penalty.