Employees who have a possible exposure to or uses toxic substances or harmful physical agents at their work site or employers who have employees that may be exposed, need to know, and understand their rights and responsibilities under OSHA’s Standard 1910.1020 on Access to Employee Exposure and Medical Records.
It is generally recognized that the OSHA 1910 standards apply to General Industry, but this particular standard applies to general industry as well as the maritime and construction industries.
OSHA Standard 1910.1020(b)(1) This section applies to each general industry, maritime, and construction employer who makes, maintains, contracts for, or has access to employee exposure or medical records, or analyses thereof, pertaining to employees exposed to toxic substances or harmful physical agents.
For employees who may have been exposed to toxic substances or harmful physical agents in the workplace, this OSHA regulation may help detect, prevent, and treat occupational disease. Employees have the right to access relevant exposure and medical records.
Designated employee representatives may access employee medical, or exposure records and analyses created from those records only in very specific circumstances. Designated employee representatives include any individual or organization to whom an employee has given written authorization to exercise a right of access.
Note: While this article was not written to specifically address medical and vaccination records related to COVID-19, an interpretation letter provided by OSHA in July of 2021 clarifies exactly how OSHA Standard 1910.1020 does apply to the coronavirus pandemic.
"A record concerning an employee’s work-related exposure to SARS-CoV-2 is considered an employee exposure record and a record of COVID-19 medical test results, medical evaluations, or medical treatment is considered an employee medical record within the meaning of this standard."
This OSHA standard applies to records documenting the amount of employee exposure to “toxic substances and harmful physical agents.” Toxic substances and harmful physical agents may include the following:
Employees have the right to access exposure and medical records and analyses based on the records that concern their employment. Employers must permit employees and, in certain circumstances their designated representatives, to access exposure and medical records relevant to the employee, free of charge, within a reasonable period of time.
OSHA Standard 1910.1020(e)(1)(i) Whenever an employee or designated representative requests access to a record, the employer shall assure that access is provided in a reasonable time, place, and manner. If the employer cannot reasonably provide access to the record within fifteen (15) working days, the employer shall within the fifteen (15) working days apprise the employee or designated representative requesting the record of the reason for the delay and the earliest date when the record can be made available.
Employees, or designated representatives, may access their medical and exposure records in one of three ways, as the employer may:
Employees have the right to access any employee exposure records that show the measuring or monitoring of their own exposure to a toxic substance or harmful physical agent. If employers do not have any records that specifically chart the employee’s exposure levels, then the employee has the right to access the exposure records of other employees (with personal identifiers removed) who engage in similar work or working conditions and may have experienced exposures similar to theirs. Employee exposure records include the following:
Employees also have the right to access any employee medical records concerning their health status that were created or maintained by a physician, nurse, health care professional, or technician. Employee medical records include the following:
In addition, employees may access any analyses (compilations of data or statistical studies) of employee medical and exposure records that concern their working conditions or workplace. If an analysis includes information that could be used to identify individual employees (directly or indirectly) the employer is required to remove these “identifiers” to the extent possible before permitting employee access to the analysis. Examples of identifiers include an employee’s name, address, social security number, and job title.
This OSHA standard states that employers have a responsibility to:
The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12112(d)(3)(B)-(C) generally requires employers to keep employee medical information confidential. Equal Employment Opportunity Commission (EEOC) standards, however, do not prohibit employers from making the disclosures required by OSHA’s medical access standard.
To clarify, employers do not have to make all records available. The following are not considered “medical records” under this standard:
Unless another OSHA rule specifically provides a different period of time, employers must keep the following documentation.
Employee medical records must be saved for at least the duration of the employee’s employment plus 30 years, except for:
Employee exposure records must be saved for at least 30 years, except for:
Analyses using medical or exposure records must be saved for at least 30 years.
If an organization ceases to operate, employers must do one of two things:
OSHA requires states with their own safety and health programs to have rules and enforcement programs that are at least as effective as those of the federal program. Employees and employers in any state with an OSHA-approved state plan have the same rights and responsibilities as states under federal OSHA jurisdiction but state plans may have additional requirements.
For more information on state plans, contact the state plan in your state or visit OSHA’s website at www.osha.gov.
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