There are a multitude of reasons why employers create safety and health-related documentation. These include compliance with mandatory paperwork requirements promulgated by the Occupational Safety & Health Administration (OSHA) and the Mine Safety & Health Administration (MSHA), which range from injury/illness records, to documentation of training provided to workers (both formal courses and less formal "toolbox talks"), as well as workplace examinations, equipment inspections, industrial hygiene monitoring, and exposure control plans to guard against health hazards associated with asbestos, lead, silica, and other toxic chemicals.

There is another universe of documents, which are routinely created and maintained in the course of business voluntarily or as a matter of "best practice." These include: employee handbooks, safety and health audits, safety and health programs, incentive and disciplinary programs, safety and health committee minutes, job hazard analysis (JHA) or other standard operating procedures, job descriptions, safety and health management systems, environmental compliance handbooks, occupational health programs, medical surveillance programs, and internal training materials.

Properly prepared and maintained, these documents can be your best line of defense (a shield) against unwarranted citations or other enforcement actions. But failure to invoke legal privilege where available, carelessly written documents, or materials that contain information constituting an admission against interest by the employer or its agents of management, can be used as a sword against you by OSHA and MSHA. Even documents viewed as proactive, or helpful, by an employer can be used to show "employer recognition" of hazardous conditions, which can support enforcement actions under OSHA's General Duty Clause, or to heighten the level of negligence assigned to a citation by showing a pattern or practice of recurring safety and health problems. Documents that can inadvertently be produced voluntarily and then used as the government's "Exhibit A" against the employer include safety and health audits, safety and health committee meeting minutes, near-miss reports, and job hazard analysis forms. Moreover, improper destruction of documents, particularly those where a litigation "hold" has been placed under notice by OSHA or MSHA, can even give rise to criminal prosecution for obstruction of justice or conspiracy!

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