Aug 13, 2019
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OSHA requires that employees who are or may be exposed to toxic
substances or harmful physical agents be given access to their
medical and exposure records. Further, OSHA requires that such
records be maintained for a long period of time because often the
symptoms of the illnesses that come from the exposure don’t appear
until many years later.
OSHA’s requirement to maintain medical and exposure records
applies to all employers who have employees exposed to toxic
substances or harmful physical agents, such as heat, cold,
radiation, repetitive motion, biological, chemical, etc.
Terms you need to know
Access: means the right and opportunity to
examine and copy.
Designated representative: means any
individual or organization to whom an employee gives written
authorization to exercise a right of access. For the purposes of
access to employee exposure records and analyses using exposure or
medical records, a recognized or certified collective bargaining
agent shall be treated automatically as a designated representative
without regard to written employee authorization.
Employee: means a current employee, a former employee, or
an employee being assigned or transferred to work where there will
be exposed to toxic substances or harmful physical agents. In the
case of a deceased or legally incapacitated employee, the
employee’s legal representative may directly exercise all the
employee’s rights pertaining to this OSHA requirement.
Employee exposure record:
means 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 forms of sampling, as well as related
collection and analytical methodologies, calculations, and other
background data relevant to the interpretation of the results
obtained;
- Biological monitoring results which directly assess the
absorption of a toxic substance or harmful physical agent by body
systems (e.g., the level of a chemical in the blood, urine, breath,
hair, fingernails, etc.) but not including results which assess the
biological effect of a substance or agent or which assess an
employee’s use of alcohol or drugs;
- Safety data sheets indicating that the material may pose a
hazard to human health; or
- In the absence of the above, a chemical inventory or any other
record which reveals where and when used and the identity (e.g.,
chemical, common, or trade name) of a toxic substance or harmful
physical agent.
Employee medical record:
means a record concerning the health status of an employee which is
made or maintained by a physician, nurse, or other health care
personnel, or technician, including:
- Medical and employment questionnaires or histories (including
job description and occupational exposures),
- The results of medical examinations (pre-employment,
pre-assignment, periodic, or episodic) and laboratory tests
(including chest and other X-ray examinations taken for the purpose
of establishing a base-line or detecting occupational illnesses and
all biological monitoring not defined as an “employee exposure
record”),
- Medical opinions, diagnoses, progress notes, and
recommendations,
- First-aid records,
- Descriptions of treatments and prescriptions, and
- Employee medical complaints.
-
- Note: “Employee medical record” does not
include medical information in the form of: (1) Physical specimens
(e.g., blood or urine samples) which are routinely discarded as a
part of normal medical practice; (2) Records concerning health
insurance claims if maintained separately from the employer’s
medical program and its records, and not accessible to the employer
by employee name or other direct personal identifiers (e.g., social
security number, payroll number, etc.); (3) Records created solely
in preparation for litigation which is privileged from discovery
under the applicable rules of procedure or evidence; or (4) Records
concerning voluntary employee assistance programs (alcohol, drug
abuse, or personal counseling programs) if maintained separately
from the employer’s medical program and its records.
Exposure or exposed: means that an employee is
subjected to a toxic substance or harmful physical agent in the
course of employment through any route of entry (inhalation,
ingestion, skin contact or absorption, etc.), and includes past
exposure and potential (e.g., accidental or possible) exposure, but
does not include situations where the employer can demonstrate that
the toxic substance or harmful physical agent is not used, handled,
stored, generated, or present in the workplace in any manner
different from typical non-occupational situations.
Record: means any item,
collection, or grouping of information regardless of the form or
process by which it is maintained (e.g., paper document,
microfiche, microfilm, X-ray film, or automated data
processing).
Toxic substance or harmful physical
agent: means any chemical substance, biological agent
(bacteria, virus, fungus, etc.), or physical stress (noise, heat,
cold, vibration, repetitive motion, ionizing and non-ionizing
radiation, hypo- or hyperbaric pressure, etc.) which:
- Is listed in the latest printed edition of the National
Institute for Occupational Safety and Health (NIOSH) Registry of
Toxic Effects of Chemical Substances (RTECS); or
- Has yielded positive evidence of an acute or chronic health
hazard in testing conducted by, or known to, the employer; or
- Is the subject of a safety data sheet kept by or known to the
employer indicating that the material may pose a hazard to human
health.
Overview of what is required
- Assess the workplace for any toxic
substance or harmful physical agent exposures that may generate
medical or exposure records.
- Keep employee medical records for at
least the duration of employment plus 30 years.
- Keep employee exposure records for at
least 30 years.
- Provide access to employees of their
medical and exposure records.
- Inform employees annually of the
existence and location of medical and exposure records and the
process and rights for accessing them.
FAQ
When removing obsolete chemicals from the facility, does the
removal date need to be documented? If yes, what is the proper
procedure to do that?
For the purposes of 29 CFR
1910.1200(e) whenever a hazardous chemical in the
workplace are obsoleted, the employer must:
- Update the hazardous chemical inventory list, which is part of
the written Hazard Communication Program; and
- Update the Hazard Communication Program as
necessary.
The employer should also remove the safety data sheet (SDS) for
the obsoleted chemical from its employee SDS stations.
For the purposes of a different regulation, 29 CFR
1910.1020(d), an employer must preserve and maintain employee
exposure records for 30 years. SDSs indicating that the material
may pose a hazard to human health are considered employee exposure
records. In the absence of SDSs, a chemical inventory or any other
record which reveals where and when a toxic substance or harmful
physical agent was used and its identity is also an employee
exposure record. SDSs must be kept for those chemicals currently in
use that is affected by §1910.1200(g).
However, once a hazardous chemical in the workplace is
obsoleted, the employer has the choice of preserving and
maintaining for 30 more years:
- The obsolete SDS, or
- A record concerning the identity of the hazardous chemical,
where it was used, and when it was used.
While OSHA does not “specifically” require the employer to
document the removal date, it may be helpful to record that date so
that an employer knows when the obsolete SDS may be disposed of
after 30 years, if that option is taken. If the employer chooses to
record the chemical identity and where and when the chemical was
used, the employer will indirectly document the removal date
because it will be included in the timeframe the chemical was
used.
Note that if an employer just keeps the SDS without the other
information, the SDSs don’t really meet the original “intent” of
§1910.1020. That’s why OSHA “recommends” that if you opt to keep
SDSs you also include them when and where information, even though
it is not mandated when the SDS option is taken.
What is the liability for transferring/maintaining medical
records when there is no successor employer?
The Code for Federal Regulations, 29 CFR 1910.1020,
Access to Employee Exposure and Medical Records outlines the
correct process of managing employee records. According to that
regulation, whenever an employer either is ceasing to do business
and there is no successor employer to receive and maintain the
records or intends to dispose of any records required to be
preserved for at least thirty (30) years, the employer shall do one
of two things. An employer must transfer the records to the
Director of the National Institute for Occupational Safety and
Health (NIOSH) or they must notify the Director of NIOSH in writing
of the impending disposal of records at least three (3) months
prior to the disposal of the records. Depending on the content of
the OSHA records, you may wish to share the information in them
with the specific employee to whom they belong before transfer or
disposal.