OSHA Seeks Comments About Rules Governing Access to Employee Exposure and Medical Records

On February 5^th, the Occupational Safety and Health Administration (OSHA) invited employers and others to submit comments by April 6, 2020 about its existing retention and access rules for employee exposure and medical records.

What is OSHA trying to figure out?

The Occupational Safety and Health Act authorizes OSHA to require employers to collect information to the extent necessary to (1) enforce the Act and (2) develop data about the causes and prevention of occupational injuries, illnesses, and accidents. But the Act also mandates that any required recordkeeping imposes the minimum burden on employers, particularly those operating small businesses.

This request for comments is part of the Department of Labor’s continuing effort to reduce paperwork and simplify legal compliance.

What should the comments cover?

Specifically, the Department of Labor is seeking comments on the following issues:

1. Whether the information that the regulations require employers to collect are necessary for the proper performance OSHA’s functions, including whether the information is useful.
2. The accuracy of OSHA’s estimate of the burden (time and costs) of the information collection requirements.
3. The quality, utility, and clarity of the information collected.
4. Ways to minimize the burden on employers–for example, by using automated or other technological information collection and transmission techniques.

What are the retention/access rules for Employee Exposure/Medical Records?

Many employers assume that OSHA recordkeeping consists only of the log of occupational illnesses and injuries required by 29 CFR 1904, but OSHA also requires employers to retain a completely different set of records for at least 30 years: Employee Exposure Monitoring Data and Employee Medical Records.

Under 29 CFR 1910.1020, employers must provide workers, the workers’ designated representatives (such as their spouses, doctors and union representatives), and OSHA itself, with access to employee exposure monitoring and medical records, and any analyses resulting from these records required under OSHA’s toxic chemical and harmful physical agent standards.

These records enable employees to examine:

• Their level of exposure to workplace hazards (based on the monitoring)
• Medical records that could show whether their health was affected by the exposure.

The access rules cover records relating to chemicals, biological hazards such as bacteria, viruses and fungi, and physical hazards like ergonomic stress, repetitive motion, radiation and vibration. Given the length of the retention requirements (30 years), each employee is basically entitled to access his or her data covering their entire working lifetime.

Employers need to take these rules seriously. Although the record retention and access rules have not traditionally been a major focus of OSHA’s enforcement activities, there is always the risk that OSHA will consider each specific record for which an employee is not given access as a separate violation generating a separate fine.

Failing to tell employees that they have these rights is also a violation. In theory, OSHA could consider each employee who failed to receive notice about the ability to access records as a separate violation carrying with it a separate fine.

So what are the basic rules?

“Employee Medical Record” Defined

A record concerning the health status of an employee made or maintained by a physician, nurse or other health care personnel, or technician, including:

• Medical and employment questionnaires/histories
• Results of medical examinations and lab tests
• Medical opinions, diagnoses, progress notes, and recommendations
• First aid records
• Descriptions of treatments and prescriptions
• Employee medical complaints

“Employee Exposure Records” Defined

A record containing any of the following kinds of information:

• Environmental (workplace) monitoring or measuring of a toxic substance or harmful physical agent, including personal, area, grab, wipe or other form of sampling, as well as related collection and analytical methodologies, calculations and other background data relevant to interpretation of the results obtained
• Biological monitoring results which directly assess the absorption of a toxic substance or harmful physical agent by a body system (but not including alcohol or drug tests)
• Material safety data sheets or any other record that reveals the identity of a toxic substance or harmful physical agent

Retention Requirements

The medical record for each employee must be preserved and maintained for at least their term of employment plus 30 years, unless a specific OSHA standard provides for a different time period. Exceptions from the retention rule include:

• Records for employees who worked less than a year for an employer (so long as the records are given to the employee upon his/her termination)
• Health insurance claims records
• Certain first aid records (not including medical histories) for one-time minor injuries

Access Rules

Access means not only the right to examine records but also to copy them. Within 15 working days after the date of the request, employees and their representatives must either be provided with a copy of the records they ask for or with the facilities to make a photocopy at no charge.

An employee is entitled to access only those medical records in which he/she is the patient.

Employees have access rights to exposure records “relevant” to them, meaning:

• Records of the employee’s own specific exposure to a toxic substance.
• Records of other employees with past or current job duties or working conditions that are similar to the requesting employee.

OSHA also has a right to access these medical and exposure records (subject to confidentiality obligations for medical information).

Preservation and Transfer Obligations

If an employer is selling or transferring a business, the exposure and medical records covered by the regulation must be transferred to the successor employer.

If an employer is winding down a business and there no successor, the employer must:

• Give all current employees notice of their record access rights at least three months before the business closes
• Give the National Institute for Occupational Safety and Health (NIOSH) three months’ prior notice of the business closure and then transfer the records to NIOSH.

Protection of Trade Secrets

An employer can withhold trade secret information in an otherwise disclosable record if certain conditions are met.

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For more information about the OSHA recordkeeping requirements or the OSHA practice of Pappas Grubbs Price, visit our website, or contact Steven Grubbs, Amanda Flanagan, Joe Garnett, or Alma Aguirre to discuss your matter.