Who Can See Your Workplace Medical and Exposure Records

Answer first: two record types, one right of access, and no charge for the first copy

The occupational safety regulation on access to employee exposure and medical records states its purpose at the top: to provide employees and their designated representatives a right of access to relevant exposure and medical records, and to provide representatives of the Assistant Secretary a right of access in order to fulfill responsibilities under the Occupational Safety and Health Act.

Access is a defined term, and it is defined generously. Access means the right and opportunity to examine and copy.

The rule reaches each general industry, maritime, and construction employer who makes, maintains, contracts for, or has access to employee exposure or medical records, or analyses of them, pertaining to employees exposed to toxic substances or harmful physical agents. It applies to all such records whether or not they are mandated by a specific occupational safety and health standard, and whether they are made or maintained in-house or on a contractual, fee-for-service basis. The employer must assure that the preservation and access requirements are complied with regardless of how the records are made or maintained.

On timing, the rule is specific. Whenever an employee or designated representative requests access, the employer shall assure that access is provided in a reasonable time, place, and manner. If the employer cannot reasonably provide access within fifteen working days, the employer shall within those fifteen working days apprise the requester of the reason for the delay and the earliest date when the record can be made available.

On cost, the employer must assure one of three things: that a copy is provided without cost; that the necessary mechanical copying facilities are made available without cost for the requester to copy the record; or that the record is loaned for a reasonable time to enable a copy to be made. For an original X-ray the employer may restrict access to on-site examination or make other suitable arrangements for a temporary loan.

Where a record has previously been provided without cost, the employer may charge reasonable, non-discriminatory administrative costs — search and copying expenses but not overhead — for additional copies, with two exceptions. No charge for an initial request for a copy of new information added to a record previously provided. And no charge for an initial request by a recognized or certified collective bargaining agent for a copy of an exposure record or an analysis using exposure or medical records.

One thing this rule is not: it is not the health information privacy regulation. That is a separate rulebook with its own rights and its own covered entities, and it is not described here.

What the two record types actually are

An employee exposure record is defined by content rather than by label, and the definition has four branches.

Environmental or workplace monitoring or measuring of a toxic substance or harmful physical agent, including personal, area, grab, wipe or other sampling, together with related collection and analytical methodologies, calculations, and other background data relevant to interpreting the results.

Biological monitoring results which directly assess the absorption of a toxic substance or harmful physical agent by body systems — the regulation's examples are the level of a chemical in blood, urine, breath, hair or fingernails — 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.

Material safety data sheets indicating that the material may pose a hazard to human health.

And, in the absence of the above, a chemical inventory or any other record which reveals where and when a toxic substance or harmful physical agent was used and its identity, whether by chemical, common, or trade name.

An employee medical record is defined as 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.

The definition of employee is wider than current staff. It means a current employee, a former employee, or an employee being assigned or transferred to work where there will be exposure to toxic substances or harmful physical agents. And in the case of a deceased or legally incapacitated employee, the employee's legal representative may directly exercise all the employee's rights under the section.

A designated representative means any individual or organization to whom an employee gives written authorization to exercise a right of access. For access to exposure records and to analyses using exposure or medical records, a recognized or certified collective bargaining agent is treated automatically as a designated representative, without regard to written employee authorization.

Exposure records reach beyond your own measurements

The access rule for exposure records is broader than it first appears, because it defines relevance rather than ownership.

Each employer shall, upon request, assure access for each employee and designated representative to employee exposure records relevant to the employee. An exposure record relevant to the employee then consists of three things.

A record which measures or monitors the amount of a toxic substance or harmful physical agent to which the employee is or has been exposed. That is the obvious one.

In the absence of such directly relevant records, records of other employees with past or present job duties or working conditions related to or similar to those of the employee, to the extent necessary to reasonably indicate the amount and nature of the substances or agents to which the employee is or has been subjected. That is the branch people do not expect: where nobody measured you specifically, comparable measurements of comparable work become relevant records.

And exposure records to the extent necessary to reasonably indicate the amount and nature of the substances or agents at workplaces or under working conditions to which the employee is being assigned or transferred. That branch is forward-looking rather than historical.

For a designated representative seeking unconsented access to exposure records, the rule imposes a form requirement. Such requests shall be in writing and shall specify with reasonable particularity the records requested to be disclosed, and the occupational health need for gaining access to them.

Medical records, consent, and the narrow withholding provision

Medical records are treated differently, and the difference is consent.

Each employer shall, upon request, assure the access of each employee to employee medical records of which the employee is the subject, subject to one exception described below. And each employer shall, upon request, assure the access of each designated representative to the employee medical records of any employee who has given that representative specific written consent. The regulation supplies a sample consent form in its own appendix.

Where access is requested, a physician representing the employer may recommend three things, and the word is recommend rather than require. That the employee or representative consult with the physician for the purposes of reviewing and discussing the records requested. That they accept a summary of material facts and opinions in lieu of the records requested. Or that they accept release of the requested records only to a physician or other designated representative.

The one withholding provision is narrow and has a route around it built in. Where an employee requests access and a physician representing the employer believes that direct employee access to information regarding a specific diagnosis of a terminal illness or a psychiatric condition could be detrimental to the employee's health, the employer may inform the employee that access will only be provided to a designated representative having specific written consent, and may deny direct access to that information only.

Then comes the sentence that limits it. Where a designated representative with specific written consent requests access to information so withheld, the employer shall assure the representative's access to that information — even when it is known that the designated representative will give the information to the employee.

One further deletion is permitted. A physician, nurse, or other responsible health care personnel maintaining medical records may delete from requested medical records the identity of a family member, personal friend, or fellow employee who has provided confidential information concerning an employee's health status.

There is a third category alongside the two record types: analyses using exposure or medical records. An analysis is defined as any compilation of data or statistical study based at least in part on information collected from individual exposure or medical records, or from health insurance claims records, provided the analysis has been reported to the employer or no further work is currently being done on it. Employees and designated representatives get access to each such analysis concerning the employee's working conditions or workplace.

How long the records last, and what happens when a business closes

The retention periods are long, and they are the reason this rule matters years after a job ends.

Unless a specific occupational safety and health standard provides a different period, the medical record for each employee shall be preserved and maintained for at least the duration of employment plus thirty years.

Three categories are exempted from any specified period. Health insurance claims records maintained separately from the employer's medical program and its records. First aid records, not including medical histories, of one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters and the like that do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job — if made on-site by a non-physician and maintained separately from the employer's medical program. And the medical records of employees who have worked for less than one year, which need not be retained beyond the term of employment if they are provided to the employee upon termination of employment.

Exposure records get their own thirty-year period, with carve-outs. Background data to environmental monitoring, such as laboratory reports and worksheets, need only be retained for one year, so long as the sampling results, the collection methodology, a description of the analytical and mathematical methods used, and a summary of other relevant background data are retained for thirty years. Material safety data sheets and chemical-identity records need not be retained for a specified period so long as some record of the identity of the substance, where it was used and when, is retained for thirty years.

The employer also has an affirmative duty to tell people the records exist. Upon an employee first entering into employment, and at least annually thereafter, each employer shall inform current employees covered by the section of the existence, location and availability of any records covered by it; the person responsible for maintaining and providing access to records; and each employee's rights of access to these records. The employer must keep a copy of the section and its appendices and make copies readily available on request, and must distribute any informational materials about the section made available by the Assistant Secretary.

And there is a rule for the end of a business. Whenever an employer is ceasing to do business, it shall transfer all records subject to the section to the successor employer, who shall receive and maintain them. Where there is no successor employer to receive and maintain them, the employer shall notify affected current employees of their rights of access at least three months prior to the cessation of business.

The rule closes one door on itself and leaves another open. It states that the information in its appendices is not intended, by itself, to create any additional obligations nor to detract from any existing obligation. And it states that nothing in the section is intended to preclude employees and collective bargaining agents from collectively bargaining to obtain access to information in addition to that available under the section.