On February 5th, 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.
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.
Specifically, the Department of Labor is seeking comments on the following issues:
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:
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?
A record concerning the health status of an employee made or maintained by a physician, nurse or other health care personnel, or technician, including:
A record containing any of the following kinds of information:
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:
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:
OSHA also has a right to access these medical and exposure records (subject to confidentiality obligations for medical information).
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:
An employer can withhold trade secret information in an otherwise disclosable record if certain conditions are met.
For more information about the OSHA recordkeeping requirements or the OSHA practice of Sheehy Ware & Pappas, visit our website, or contact Steven Grubbs, Amanda Flanagan, Joe Garnett, or Alma Aguirre to discuss your matter.