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1995-01-22
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INFORMATION DATE 19901017
DESCRIPTION USDOL Program Highlights - Access to Employee Exposure
and Medical Records
SUBJECT Access to Employee Exposure and Medical Records
U.S. Department of Labor
Program Highlights
Fact Sheet No. OSHA 89-29
ACCESS TO EMPLOYEE EXPOSURE AND MEDICAL RECORDS
SCOPE - Employers in general industry, the maritime, and construction
industries must provide records access to all employees exposed to toxic
substances and harmful physical agents, their union representatives,
health personnel, and OSHA. The rule does not require creation of any
records, only preservation. Access means the right to examine and copy
records.
ACCESS RULES - Records requests need not be in writing except where trade
secrets are involved. Union and health professionals must have specific
written consent to gain access to employees' personal medical records but
may examine exposure records without such consent. However, they must
state the specific record needed and the occupational health need for
requesting the information. Health professionals include physicians,
occupational health nurses, industrial hygienists, toxicologists, and
epidemiologists who provide medical or other occupational health services
to exposed employees.
Employees have automatic access to their own exposure and medical
records except where a physician representing the employer believes that
direct employee access to certain information in the record could be
detrimental to the employee's health. However, they have access to
exposure records of others when these exposures represent their past or
present exposure or exposures represent their past or present exposure or
exposure where an employee is being assigned or transferred.
Employers must provide records promptly, generally within 15 working
days. They must provide a date for release of the information and an
explanation of the delays should it take longer to process the request.
Employers are to inform their workers initially and at least annually of
their rights to access to medical and exposure records. OSHA may obtain
personal medical records promptly without the written consent of the
subject employees, but will adhere to strict data controls to protect
confidentiality.
RECORDS AND RETENTION RATES -- The rule covers records of employee
exposure to toxic substances and harmful physical agents and employee
personal medical records. Exposure records must be maintained for 30 years
and medical records for the duration of employment plus 30 years. First
aid records and experimental toxicological research records are excluded
from the 30-year retention requirements.
If a company maintains a chemical inventory or set of material safety
data sheets, it need not retain production records, shipping records,
invoices, batch cards or other similar documents. Biological monitoring
results, except those pertaining to alcohol or drugs, are to be retained,
but records created in anticipation of litigation (workers' compensation
examinations, for example) need not be. Personal medical records for
short-term employees (less than one year) do not have to be retained if
they are provided to the employee on termination.
Employers need not copy X-rays and may require viewing on site or at
some other suitable location. All X-rays, except chest X-rays, may be
microfilmed for records storage.
TOXIC SUBSTANCES -- Toxic substances and harmful agents include any
material listed in the National Institute for Occupational Safety and
Health (NIOSH) Registry of Toxic Effects of Chemical Hazards (RTECHS);
substances which have evidenced an acute chronic health hazard in testing
conducted by or known to the employer; or substances in a material safety
data sheet kept by or known to the employer indication that the material
may pose a health hazard. Except for trade secrets, employers are to
disclose the specific chemical identity [chemical name and Chemical
Abstract Service (CAS) number] of materials for which exposure records are
requested.
TRADE SECRETS -- Employers may withhold the specific chemical identity of
a toxic substance if:
-- they can support a claim that this information represents a trade
secret;
-- all other information concerning the toxic substance is disclosed
as required;
-- they state that the specific chemical identity is being withheld as
a trade secret;
-- they make the chemical name available to health professionals,
employees, and designated representatives under certain specified
conditions.
In a medical emergency, an employer must immediately disclose the
specific chemical identity of a toxic substance to a treating physician or
nurse when needed for emergency or first aid treatment. The employer may
obtain a statement of need and a confidentiality agreement as soon as
circumstances permit.
When there is no emergency, requestors seeking trade secret identity
must put their request in writing, describing the medical or health need
for which this is requested and explain why other information (such as
health risks of the chemical, proper protective measures, etc.) is
insufficient. Requestors must also describe the procedures they will take
to protect confidentiality, agree not to use the information except for
health purposes, and not to disclose the information to anyone except
OSHA. Confidentiality agreements must be signed and may include a
liquidated damages provision, but no penalty bond.
Employers denials of request for specific chemical identities must be
in writing within 30 days of the request. Denials must provide evidence
that the information is a trade secret and explain how alternate
information will suffice. The requestor can appeal the denial to OSHA. If
the agency finds the denial to be improper, the employer can be cited and
penalties proposed.
__________________________________________________________________________
This is one of a series of fact sheets highlighting U.S. Department of
Labor programs. It is intended as a general description only and does not
carry the force of legal opinion.