Document 3QbZr0J74nGKDRRJLeKR9Q0p0

slfe.MiB BfeijiBSl 1^ mnirn `Illil'.ffM mm mmfc ***? E.I. du Pont de Nemours 2. Company Wilmington, Delaware I9B98 LEGAL DEPARTMENT I November 5, 1981 Mr. M&rk Cowan Deputy Assistant Secretary Occupational Safety and Health Administration 200 Constitution Avenue, N.W. S-2315 Washington, D.C. 20210 Re: Interpretation- -- OSHA Regulation entitled "Access to Employee Medical and Exposure Records", 29 CFR 1910.20 Dear Mr. Cowan: The purpose of this letter is to obtain from the Occupational Safety and Health Administration (OSHA) a formal internal interpretation of an issue related to the regulation entitled "Access to Employee Medical and Exposure Records", 29 CFR 1910.20. Recently, an investigation by an OSHA area office has drawn into question the Du Pont Company's interpreta tion of this regulation. As you are aware, the regulation states that employees may have access to their own medical records and the records characterizing their potential exposures to "toxic substances or harmful physical agents". If an employee requests, he or she is entitled to have one copy of his or her medical and exposure records at the employer's expense. After the regulation was issued, Du Pont analyzed it for compliance purposes. The question arose as to whether it required employers to provide employees requesting duplicates of their records with free true copies of their x-rays (i.e., not a photocopy). We determined it did not for a number of reasons. First of ail, the language of the regulation does not appear to require this and, to our knowledge, this was never contemplated by OSHA during the rulemaking proceedings. The regulation defines medical records to include "the results of medical examinations ... and laboratory tests (including x-ray examinations and ail biologi cal monitoring)" [emphasis added]. The result of a radiologist's DU 062389 1154300 OUP Mr. Mark Cowan 2- November 5, 1981 examination of an x-ray is a report which is kept in the employee's medical file. Ou Pont interpreted this provision to require the Company to give employees a copy of the radiologist's report in terpreting their x-ray but not a copy of the x-ray itself. Like the example given in Section (c)(6)(ii)(A) of the regulation, we considered the x-rays to be a "physical specimen* like a blood or urine sample which, according to standard medical practice, is routinely discarded. Indeed, consistent with radiographic practice, were we not required to retain x-rays under another pro vision of the regulation, i.e.. Section (d)(iii) (2), we would . routinely discard normal x-rays after a reasonable time period. We would, however, retain the radiologist's report interpreting the x-ray together with the other medical data which comprises the employee's medical file. Other reasons supporting our interpretation of the regulation are that a copy of an x-ray would be meaningless to an employee and would be of limited clinical value to his physi cian. No one other than a trained medical professional can read an x-ray. The radiologist's report interpreting the x-ray will provide an employee the most useful information. In at least one case, several copies of x-rays were returned to us afteran employee's physician expressed his opinion of their inadequacy for diagnostic purposes. Even though they are of limited useful ness clinically, copies of x-rays are expensive. A single copy costs around $10.00 to make. Some employees may have as many as 25 x-rays in their files and the potential cost of duplicating these films is extraordinary. With regard to x-rays, Du Pont's practice is similar to that of most radiology laboratories. If an employee's physician needs to see his x-rays, we will allow him to review it at our medical facilities. We do not send the original x-rays off-site because in many instances where we have released original x-rays, these have not been returned to us, even after repeated requests. Because we are now required by OSHA to keep the x-rays "in their original state", we are even more convinced that they should remain cn-site. Our interpretation of the access regulation came to CSKA's attention by virtue of an employee complaint. A worker at one of our facilities asked for a copy of his medical records, which we provided him at no charge. When he requested a copy of his x-rays, we informed him that his medical records contained a radiologist's report interpreting the x-ray and that we would make the original x-ray available to his physician if necessary. I Formerly, Du Font's policy with regard to x-ray retention was that it retained the last normal x-ray and the first aonormal x-ray and all those subsequent to it. DU 062390 DUP lI5430t ijiasw- u-. S..Bl!3.1.iMii- ifc.llju.,..,,, Ft! iliS i mii Mr. Mark Cowan 3- Noveaber 5, 1981 Nevertheless, the employee insisted upon a copy of the x-ray and we told him there would be a reproduction charge for this copy, to which he initially agreed. A complaint was subsequently filed with the local area office. The regional solicitor's office has informed us that, on first impression, they believe the letter of the regulation requires employers to provide one.free copy of an employee's x-rays even though they do not dispute that this is of limited value to the employees or their physicians, is impractical, and is not cost effective. We believe that Ou Pont's practice complies with both the letter and the intent of the regulation. To interpret it otherwise leads to an absurd result--i.e., that an employer must pay exorbitant copying costs to provide employees and their physi cians with useless data. This problem is compounded by the fact that x-ray copying equipment is not readily available. Only two Du Pont sites in the entire United States have x-ray copying equip ment. Thus, copying x-rays will prove to be a large administrative burden for Du Pont and all of industry. We have informed the Regional Solicitor's Office that the potential adverse impact of their tentative interpretation of our duties under the regulation is significant. For this reason, we asked that they delay action until we could obtain a formal internal interpretation of the regulation's requirements from the national office. We are aware that OSSA is considering modifying the Current access regulation and commend the agency's efforts with regard to the trade secrets issue. Du Pont fully supports whole sale revision of the regulation for a number of reasons, such as the rule's threat to employee privacy, its burdensome record keeping requirements, and the fact that we believe it far exceeds OSHA's statutory authority. Because of the importance of the x-ray question, as an interim measure, Du Pont respectfully requests that OSHA issue a formal internal interpretation and field directive indicating that the regulation requires employers to provide employees with copies of the radiologist's report interpreting the x-rays but not a copy of the x-ray itself. If the employee's personal physician needs to review original x-rays, the site medical doctor should have the appropriate latitude to either allow him to review the x-ray on site or make some other arrangement consistent with the employer's duty to assure reten tion cf the original x-ray. Access by union representatives should be controlled by the collective bargaining process. If copies of x-rays are sounht for litigation purposes, then their access should be controlled by the applicable discovery procedures. We believe this interpretation appropriately accommodates the interests of ail parties. DU 062391 DUP \154302 Mr. Mark Cowan 4- November 5, 1981 He are grateful for your consideration in this matter. Please feel free to contact me if you need any further information regarding our requests. JLP/cs Very truly yours, JuJia.-L. Pkilitps, Julia L. Phillips Attorney Environment Division (302-774-8284) ,,S33 DUP DU 062392