Document OzNL86dmYxzg7nm0Lv7beRgkQ

FILE NAME: Westinghouse (WH) DATE: 1980 July 25 DOC#: WH132 DOCUMENT DESCRIPTION: Memo RE OSHA Rule on Medical Records with Rule Attached WBB-0032170 ft D CENTER FML-220 C. f. BICKERSTAFF, ADtISTR. IND. HYGIENE 7 From Building, Room 2060 WIN 235-3476 or 3916 Date July 25, 1980 Su&iect OSHA Access to Employe Exposure and Medical Records Rule - 1910.20 To PERSONNEL RELATIONS MANAGERS PERSONNEL RELATIONS REPRESENTATIVES INDUSTRIAL HYGIENE AND SAFETY COORDINATORS MEDICAL DEPARTMENTS (FML-16, 17, 20 and 45) The new OSHA standard on access to employe exposure and medical records is scheduled to become effective August 21, 1980. It is the Westinghouse position that this new standard is illegal in that it far exceeds the scope of authority delegated by Congress to the Occupational Safety and Health Administration. The Labor Law Section of the Corporate Personnel Department has indicated that the validity of this standard will be challenged in the courts before its effective date. In addition, even prior to the announce ment of this new standard, NIOSH had sued Westinghouse in the U.S. District Court in Pittsburgh to obtain access to medical records at one of our facilities. We defended the suit primarily on the basis of our employes' right to privacy, but the District Court judge rejected our position. The case is now on appeal, and we await the appellate decision. The Corporate posture in relation to the new standard will be one of respectful non-compliance with its provisions pending the outcome of the legal challenge to it that we expect to be filed. Until further notice, no industrial hygiene, safety or medical records shall be given to government or employe representatives unless approval is obtained from the Manager, Corporate Safety for industrial hygiene and safety records; or the Corporate Medical Services Administrator for medical records; or, in their absence, the Labor Law Section of the Corporate Personnel Department. In those instances where there are differences between this notice and Management Directive MD-P66, Privacy of Personal Information; Corporate Procedure CP"E10,, Employe Record Files; and other guidelines, this notice supercedes such earlier instruction until you are otherwise advised. We will keep you informed of developments concerning the legal challenge to the new standard and also concerning our NIOSH litigation. Paul Palmieri, Manager Corporate Safety Giscard Dare: Medical Services E PLAINTIFF'S t EXHIRIT s=3 Sa OUTLINE OSHA - Final Rule Access to Employee Exposure and Medical Records This Rule, which was published May 23, 1980 (45 F.R. 35211, 35277), amends 29 C.F.R. 1910.20 to provide employees and designated representatives a right of access to relevant exposure and medical records. The Rule, which takes effect on August 21, 1980 tlso gives OSHA the right of access to these records. Its stated purpose is to foster both direct and indirect improvements in the detection, treatment, and pre vention of occupational disease. The Rule applies to virtually any employer who makes, maintains, or has access to employee exposure or medical records, or analyses thereof, pertaining to employees exposed to toxic substances or harmful physical agents. The Rule applies to all employee exposure and medical records and analyses thereof, whether or not the records are related to specific occupational safety and health standards. Its provisions are geared to mandate preservation of and access to such records regardless of the manner in which they are made or maintained. In summary form, below are several key definitions provided in the Rule: - (1) "Access" means the right and opportunity to examine and copy. (2) "Employee Exposure Record" means a record containing any information concerning employee exposure to toxic sub stances or harmful physical agents such as environmental . monitoring data, biological monitoring results, material safety data sheets, or, in the absence of the above, any other record which reveals the identity of a toxic substance or harmful physical agent. HMBB-0032172 HMBB-0032173 <C: = (3) "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: (A) Medical and employment questionnaires or histories (including job description and occupational exposures), (B) The results of medical examinations (pre-employment, pre-assignment, periodic, or episodic) and laboratory tests (including X-ray examinations and all biological monitoring), (C) Medical opinions, diagnoses, progress notes, and recommendations, (D) Descriptions of treatment and prescriptions, and (E) Employee medical complaints. (4) "Analysis Using Exposure Or Medical Records" means any compilation of data, research, statistical or other study, which is based at least in part on information collected from Individual employee exposure or medical records, provided that the analysis is known to the employer or no further work is being done by those responsible for preparing the analysis. (5) "Record" means any item, collection or grouping of in formation regardless of the form or process by which it is maintained. t HWBB-003217* (6) "Designated Representative" means any individual or organization given written authorization to exercise a right of access. The record subject to the Rule must be preserved for the period of employment plus 30 years except health Insurance claim records which are maintained separately from the employer's medical program. With some exceptions, employee exposure records must be preserved and maintained for the same period of time. The same period is prescribed for retention of analyses using exposure or medical records. Section (e) of the Rule, which is divided into three parts, details the substantive and procedural requirements of assuring access. Under subsection (1), the general access provision, once a request is made the employer must provide to the employee or his designated repre sentative access to the records within 15 days. The employer is required to provide access to the records without cost; however, when a record has been previously provided, the employer may charge reasonable ad ministrative costs for providing additional copies of the record except that the employer cannot charge for an initial request to copy information that has been added to the record previously provided. Subsections (2) and (3) deal specifically with the requirements pertaining to "employee/ . designated representative access" and "OSHA access" respectively. U-1 > j "J The Rule does not prohibit an employer from deleting any trade secret data from the records requested. However, despite any trade secret claims, the employer is required to provide access to chemical or physical agent identities including chemical names, levels of exposure, and employee health status data contained in the relevant records. The Rule also requires employers to provide employees with certain information regarding access rights and places certain other obligations on the employer in the event of sale or disposition of plant facilities. The following are considered highlights of the Rule: HIGHLIGHTS Applies to all employers in general industry, maritime and construction whose employees are exposed to toxic substances or harmful physical agents. Applies to all employer-generated exposure medical records, regardless of whether created in-house or on contract. Employers must maintain exposure records and analyses based on exposure or medical records for thirty years. Employers must maintain medical records for employment plus thirty years. Certain background data for exposure records need only be kept for one year. * Key terms of the Rule are defined in detail. Employers are provided complete flexibility as to the form or manner in which records are to be maintained, except that X-rays must be kept in their original state. HWBB-0032175 HMBB-0032176 Employers are given flexibility in providing access in a reasonable time, place and manner, but in no event later than fifteen days after a request is made. Employers are given flexibility in responding to requests for copies of records, including charging reasonable costs for repeat requests. An employee and his/her designated representative are assured access to all exposure records relevant to the employee, including records of other employees. An employee and his/her designated representative are assured access to medical records of which the employee is the subject. .Access to the medical records of another employee is provided only upon the ' specific written consent of that employee. The Rule provides a suitable sample authorization form. Physicians on behalf of employers are encouraged to discuss with employees the contents of their medical records, and may recommend means of disclosing medical records other than by direct worker access. A physician may, on behalf of an employer, disclose information on specific diagnoses of terminal illness or physchiatric conditions only to an employee's designated representative, and not directly to the employee. An employee and his/her designated representative are assured access to analyses using exposure or medical records concerning the employee's working conditions or work place. Unions are assured access to exposure records and analyses using exposure or medical records, but are not provided access to medical records absent an employee's written consent. Employers must provide OSHA with immediate access to records covered by the Rule. Employers are provided flexibility to protect trade secret information subject to employee and designated representative access. Employers may condition access upon a written agreement not to abuse the trade secrets. Employees are to be provided annual information concerning their rights under the Rule. I I f ' HMBB-0032178 Gulf and U. S. Steel Issued a le tte r to each plant and d iv isio n manager and Industrial Hygiene and Safety personnel summarizing 1910.20 standard and recommended how to respond to in q u irie s from employees. Each location was to comply with the standard; however, no guidelines to date have been issued ou tlinin g recommended plant compliance program. fei Rockwel 1 Issued a le tte r to each plant and d iv isio n manager, and Industrial Hygiene and Safety personnel summarizing the 1910.20 standard and included a copy of the standard. A general recommended compliance program including: using a notice on the b u lle tin board, maintaining a log of requests, and instructions to inform headquarters of unusual requests fo r records. When records are given, following a request, re su lts are to be reviewed and explained in layman's terms. Alcoa and Mobay Issued a le tte r to each plant and d iv isio n manager, and Industrial Hygiene and Safety personnel summarizing 1910.20 standard. An enclosed poster was also issued for posting in appropriate areas. ' They are s t i l l considering how long the poster should be posted and how to respond to requests fo r records. -^vCi -.5 1 r WBB-0032180 NOTICE TO: ___________________________ ;_______ Employees SUBJECT; Occupational Safety and Health Administration (OSHA) Standard Access to Medical and Exposure Records OSHA has issued an Access Standard, effective August 21, 1980, which gives each employee the right to review and to request a copy of the individual employee's own medical record and work exposure record. Under the standard an employee also has the right to give written permission for another person (physician, bargaining agent, or other responsible individual) to have the right to review and/or obtain a -copy of the individual's record. The employee should indicate in writing who should have access to the record, what information should be made available, and for what purpose the information will be used, if the employee authorizes another person to have access to his medical record, he may first wish to meet with the plant physician to clarify what information should be released. The standard also gives OSHA the right of access to an employee's medical record without the employee's approval. An employee will be notified if OSHA seeks access to his/her medical record. \ HWBB-0032181 - 2- An employee who wishes to review his/her medical record should contact. (plant physician) on extension for an appointment. For a review of work exposure records the 5=3 employee should contact ____ on (industrial hygienist) extension If you wish to inspect a copy of the standard, contact ______ ___________________ on extension - ^ f mznie-aaiiK Requested Records Requested By and Date log OF OSHft RECORDS ACCESS RULE Records Submitted and Date_____. Who Submitted Pornrds and Date To Whom Records Were ^.hmitted and Date_ 1 & <n iv<il (< I 5=3 ^3 .^=1 -.5 GUIDELINES RE: OSHA RECORDS ACCESS RULE The following compliance guidelines are being established for the purpose of enabling personnel to meet the corporate objective of complying with various government regulatory laws. These guidelines are not designed to deal with every possible question which can be raised. Questions of general and far-reaching policy will be dealt with in future communications. GENERAL OBLIGATIONS OF____ 1. must inform exposed employees upon hire and at least annually thereafter of the existence, location, and availability of records covered by the Rule, (see Notice attached), and make readily available a copy of the Rule itself. 2. Exposure records and analyses using exposure or medical records must be preserved and maintained for thirty years. 3. Employee medical records must be preserved and maintained for the duration of employment plus thirty years. 4. must absorb all expenses necessary to preserve and retain relevant records for the above-stated periods. HHBB-0032185 <=3 c_5H GENERAL PROCEDURES APPLICABLE TO ANY REQUESTER 1. will refuse access to exposure information when the unit can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the work place in any manner different from typical non-occupational situations. 2. - shall refuse to copy for a requester any record that has been previously provided (copied) unless the record contains additional information or unless the requester agrees to bear the cost of such copying. 3. - shall keep and maintain all relevant records in the manner in which they are presently maintained. If the medical records are not in the Company's custody, the unit will state their location (medical institution or physician's office) to the requester and make every effort to obtain the records. EMPLOYEE REQUESTS Discussion: All past and present employees must upon written request (ACCESS REQUEST - F o r m _______ attached) be granted access to (1) exposure records, (2) medical records, and (3) analyses using exposure or medical records. Access must be provided at a reasonable time, place, and manner. What is "reasonable" depends on the circumstances; however, the Rule requires that the employer's work schedule need not be unduly disrupted or the employee unduly inconvenienced. Procedures : 1. Employee access shall not be provided during their regular working hours. -2 - \ r i HWBB-0032186 MWBB-0032187 *u=3 ^5 ir\-' -a 2. Access must be provided within fifteen calendar days of a request. . 3. The Company shall withhold (by deletion) from the employee, but not the designated representative, medical information relating to terminal illness or psychiatric condition that, in the physician's opinion, would be detrimental to the employee's health. In such cases employees will be informed of the deletion and encouraged to use their personal physician as designated representative. 4. After review, should the employee request copies of the records, the Company shall make arrangements for the employee to obtain a copy of the requested records. No original records of any type are to be given to the employee at any time except for inspection and review purposes. 5. An ACCESS REQUEST ( F o r m _______ ) must be obtained when the employee requests his own medical records. This will serve to document an authorized release of medical information should that information somehow find its way into the hands of a third party. 6. shall refuse access to employee's portions of analyses using medical records containing personal identifiers, if it can be shown that removal of the personal identifier portions is not feasible. (If deletion is feasible, has the obligation to delete personal identifier information.) ' 7. shall delete trade secret data which discloses manu facturing processes or the percentage of a chemical substance in a mixture. The employee must be notified of the deletion, however. As an alternative, can secure a confidentiality agreement from the employee. -3 - HHBB-0032188 DESIGNATED REPRESENTATIVE'S REQUEST Discussion; Under the Rule there are two types of "designated representatives": (1) the employee's collective bargaining agent and (2) any other third party. Procedures for the Collective Bargaining Agent; __ 1. The same procedures as listed under EMPLOYEE REQUESTS Section. 2. In addition, when medical records are requested, a Specific Written Consent ( Form 7357, attached) must be provided. 3. The Company cannot delete any medical information. Procedures for Other Third Party "Designated Representative"; 1. The same procedures as listed under EMPLOYEE REQUESTS Section and Collective Bargaining Agent provision above. 2. In addition, when exposure records are requested and/or - analyses using exposure or medical records, a Written Authorization (form attached) must be provided. OSHA REQUESTS Discussion: OSHA requests must be handled in a different manner from employee and designated representative requests. Procedures for OSHA Requests are as Follows: 1. may demand a search warrant before admitting investigators to review requested records. 2. OSHA is to be provided immediate access as opposed to fifteen days for other requesters. 3. The Company cannot delete any medical information. HWBB-0032189 5=3 fel & U-- J 4. shall require OSHA to bear the expense incurred in the copying of requested records. 5. When medical records are requested, a Written Access Order (OSHA Form) must be presented by the OSHA Representative named on the Order. 6. Personal identifiers in analyses using medical records cannot be deleted. ~ 7. The Rule does not provide for deleting trade secret information. shall use a special transmittal letter (attached) when handing over documents containing proprietary information. _ii_rr -5- [ fei (o {CD -- i & u-- d NOTICE TO ALL EMPLOYEES 1 . EXPOSURE, MEDICAL, AND ANALYSIS USING EXPOSURE AND MEDICAL RECORDS ARE MAINTAINED FOR THIS WORKPLACE. THEY ARE LOCATED AT ____________________________________________ ' " AND ARE AVAILABLE FOR YOUR INSPECTION. 2 . THE PERSON RESPONSIBLE FOR MAINTAINING AND PRO VIDING ACCESS TO THESE RECORDS I S 3. YOU HAVE RIGHTS OF ACCESS TO THESE RECORDS. A. CONTACTING A COPY OF THIS OSHA RULE I S AVAILABLE BY . HWBB-0032190 HWBB-0032191 ACCESS REQUEST fei Date I, t _____________________________________________ request (Requester) to provide access to the following in accordance with 29 C.F.R. 1910.20: Signature ~.) Form Number Time HWBB-003P192 Last Name First Name uaie Middle Initial Social Security No. AUTHORIZATION TO RELEASE MEDICAL INFORMATION FROM f hereby authorize to disclose medical information in its possession on the person named above to (name and address) _________________________________________ in regard to (cite specific illness, disability or research study): (a) This medical information is released with the stipulation that the medical information released, with all copies, will be returned to w ithin______ k Initial______ (b) This information will not be disclosed to others except with my written permission or except as required by law. initial______ (c) is authorized to release information from my medical file related to the purpose stated above and to individual named above for ______________from this date. Initial______ (d) a, b, and c above are not applicable (to be used when release is to the family physician). . Initial______ (e) is authorized to release information from my medical file covering the p erio d _______________t o __________ _ Initial_____ Witness fOM7J$7Ev -0-7 Signature Signer -- indicate relationship to person named in statement above (viz: 'self,' "executor," "attorney," or other status). If other than self, submit proof of capacity to act tor the person named above. MMBB-0032193 WRITTEN AUTHORIZATION I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _______ < hereby name ________________________________________________ to be my "Designated Representative" for purposes of the OSHA Access Records Rule and authorize him/her to have access to the following exposure records and analyses using exposure or medical records: Date: (Type Employee's Name) HWBB-0032194 PROPOSED DOCUMENT TRANSMITTAL LETTER To: OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION - Re: Records requested pursuant to 29 CFR 11910.20, as amended (Exposure/Medleal Records Access Rule) Attached are copies of the records that you requested be made available to the Occupational Safety and Health Administration by Many of the documents submitted herewith contain information which regards as confidential largely because they concern or relate to highly sensitive personal information or proprietary information including, but not limited to, trade secrets, processes, operations, style of work or apparatus, or to commercial or statistical data, which in the hands of third parties could be competitively harmful to Accordingly, you are advised that PPG requests such documents be accorded confidential treatment and, consequently, be exempted from disclosure under the Freedom Of Information Act or otherwise to any third party. The statutory and regulatory bases for the requested exemption are, among others, the Freedom of Information Act "5 USC 552(b)'(3), (4), (6), and (7)J7* the Trade Secrets Act (18 USC 11905) and the OSHA's Freedom Of Information Act regulations (29 CFR 2201 et seq. and 570.26, 70a.3.) f --- J J The submission of these-records is being made with the under standing that OSHA will afford adequate prior notice (1) of any determination by OSHA not to accord confidential treatment to all or any of such documents or the information contained in such documents and/or (2) of any request of OSHA by any third party, or the commencement of any proceedings by any third party to cause OSHA, to disclose all or any of such documents or the information contained in such documents and on the further understanding that OSHA will not disclose all or any of such documents or the Information contained in such documents in any ruling or other document that would be subject to disclosure under the Freedom Of Information Act or otherwise. Such notice may be afforded by telephoning the undersigned at . requests that all of the attached documents be returned to it upon the completion of OSHA's investigation and/or use with respect to the reason for requesting access pursuant to 29 CFR 1910.20. REPRESENTATIVE HWBB-0032195 HWBB-0032196 fei M & -.f) PLANT RIGHTS UNDER THE OSHA RECORDS RULE 1. As the present status of the law permits, you have the right to demand a search warrant before admitting investigators. 2. You have the right to say medical records are not in your custody but you must give their location (medical institution or physician) to the OSRA representative or other requester. ' 3. You have the right to refuse access to information when you 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. A. You have the right to refuse to copy for a requester any record that has been previously provided (copied) unless the record contains additional information. 5. You have the right to withhold from the employee, but not his designated representative, medical information relating to terminal illness or psychiatric condition that, in the physician's opinion, would be detrimental to the employee's health. 6. You have the right to receipt of a Written Access Order before granting access to OSHA of any medical records. 7. You have the right to receipt of a Specific Written Consent before granting access to an employee or his designated representative of any medical records. 8. You have the right to refuse access to an employee's designated representative unless the representative produces written authorization from the employee. 9. You have the right to keep and maintain all relevant records in the manner they are presently kept and maintained. 10. You have the right to take 15 days in granting access to an employee or his designated representative unless that time is unreasonable under the circumstances. 11. You have the right to refuse access to employees or designated repre sentatives to portions of analyses using exposure or medical records containing personal identifiers if you can show that removal of the personal identifier portions is not feasible. 12. You have the right to delete trade secret data from records requested by an employee or his designated representative. r HWBB-0032198 OCCUPATIONAL I A R T T AND HEALTH 7=3 ^3 w s-sasm t c STANDARDS AND INTERPRETATIONS PART 1910 OCCUPATIONAL SAFETY A N D HEALTH STANDARDS SUBPART C-- GENERAL SAFETY A N D HEALTH PROVISIONS 1910.20 Access to employer exposure and medical records 'U -.a Qun|12 t * 19 *F=D fcl -1 ^ 51 -s ers i ` 1*10.20 (a) STANDARDS AND INTERPRETATIONS OCCUPATIONAL SAFETY AND HEALTH 1910.20-- ACCESS TO EMPLOYEE EXPOSURE AND MEDICAL RECORDS (o) Purpose. The purpose of this section is to pro vide employees snd their designated representa tives a right of access to relevant exposure and medieal records; and to provide representatives of the Assistant Secretary a right of aeeess to these records in order to fulfill responsibilities under the Oeeuaptional Safety and Health Aet. Access by employees, their representatives, and the Assistant Secretary is necessary to yield both direct and indirect improvements in the detec tion, treatment and prevention of occupational disease. Each employer is responsible for assur ing compliance with this section, but the activi ties involved in complying with the access to medical records provisions can be carried out, on behalf of the employer, by the physician or other health care personnel in charge of employee med ical records. Except as expressly provided, nothing in this section is intended to affect exist ing legal and ethical obligations concerning the maintenance and confidentiality of employee medical information, the duty to disclose informa tion to a patient/employee or any other aspect of the medical-care relationship, or affect existing legal obligations concerning the protection of trade secret information. (b) Scop* and application. (1) This section applies to each general indus try, maritime, and construction employer who makes, maintains, contracts for, or has access to employee exposure or medical records, or analyses thereof, pertaining to employees ex posed to toxic substances or harmful physical agenta. (2) This section applies to all employee expo sure and medical records, and analyses thereof, of employees exposed to toxic substances or harmful physical agents, whether or not the records are related to specific occupational safety and health standards. (3) This section applies to all employee expo sure and medical records, and analyses thereof, made or maintained in any manner, including on an in-house or contractual (e.g., fee-forservice) basis. Each employer shall assure that the preservation and access requirements of this section are complied with regardless of the manner in which records are made or main tained. ~ (c) Definitions. (1) "Access" means the right and opportunity to examine and copy. (2) "Analysis using exposure or medical records" means any compilation of data, or any research, statistical or other study based at least in part on information collected from indi vidual employee exposure or medical records or information collected from health insurance claims records, provided that either the analy sis has been reported to the employer or no fur ther work is currently being done by the per son responsible for preparing the analysis. (3) "Designated representative" means any individual or organization to whom an employee gives written authorization to exer cise a right of access. For the purposes of access to employee exposure records and ana lyses using exposure or medical records, a rec ognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization. (4) "Employee" 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. In the case of a deceased or legally incapacitated employee, the employee's legal representative may directly exercise all the employee's rights under this section. (5) "Employee exposure record" means s record containing any of the following kinds o( information concerning employee exposure to toxic substances or harmful physical agents: (I) environmental (workplace) monitoring or measuring, ineluding personal, area. grab. wipe, or other form of sampling, as well as 1910.20<eX6Xi) 20 C hant. * HWBB-0032199 HUBB-0032200 OCCUPATIONAL SAFETY AND HEALTH related collection and analytical methodol ogies, calculations, and other background data relevant to interpretation of the results obtained; (H) biological monitoring resu lts which directly assess the absorption of a substance or 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 sub stance or agent; (III) material safety data sheets; or (Iv) in the absence of the above, any other record which reveals the identity (e.g., chem ical, common, or trade name) of a toxic sub stance or harmful physical agent. 0) "Employee medical record" means a record eonerning the health status of an employee whieh is made or maintained by a physician, nurse, or other health care person nel, or technician, including: (a) medical and employment question naires or histories (including job descrip tion and occupational exposures), (b) the results of medical examinations (pre-employment, pre-assignment, peri odic, or episodic) and laboratory tests (including X-ray examinations and all bio logical monitoring), (c) medical opinions, diagnoses, progress notes, and recommendationa, (d) descriptions of treatments and pre scriptions, and (e ) employee medical complaints. (II) "Employee medieal record" does not include the following: (a) physical specimens (e.g., blood or urine samples) which are routinely discarded as a part of normal medical practice, and are not required to be maintained by other legal requirements. lllfcJOitXSXO STANDARDS AND INTERPRETATIONS (b) records concerning health insurance claim 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 identifier (e.g., social security number, payroD number, etc.), or (c) records concerning voluntary employee assiatance programs (alcohol, drug abuse, or personal counseling pro grams) if maintained separately from the employer's medical program and its records. (7) "Employer" means a current employer, a former employer, or a successor employer. (g) "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 (inha lation, ingestion, akin 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 harm ful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-oecupational situations. . (f) "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). (10) "Specific written consent" 0) means a written authorization containing the following: (a) the name and signature of the employee authorizing the release of medi cal information, (b ) the date of the written authorization. (c) the name of the individual or organiza tion that is authorized to release the medi cal information, (d) the name of the designated represent- C h a n t* U 20.1 1910.20(cX10XiXd) HWBB-0032202 =3 & u-- il -.3 OCCUPATIONAL SAFETY AND HEALTH l l J 0(eXl) STANDARDS AND INTERPRETATIONS () Access to records. (1) General. 0) Whenever an employee or designated representative requests aeeess to a record, the employer shall assure that aeeess is pro vided in a reasonable time, place, and man ner. but in no event later than fifteen (15) days after the request for aeeess is made. * (2) Employ and designated raprasontatlv access. (I) Employ oxposuro rocords. Each employer shall, upon request, assure the access of each employee and designated rep resentative to employee exposure records relevant to the employee. For the purpose of this section, exposure records relevant to the employee consist of: 00 Whenever an employee or designated representative requests a copy of a reeord, the employer shall, within the period of time previously specified, assure that either: (a) a eopy of the record is provided with out cost to the employee or representative, (a) records of the employee's past or pres ent exposure to toxic substances or harm ful physical agents, (b) exposure records of other employees with past or present job duties or working conditions related to or similar to those of the employee, (b) the necessary mechanical copying facilities (e.g., photocopying) are made available without cost to the employee or representative for copying the record, or (c) records containing exposure informa tion concerning the employee's workplace or working conditions, and (c) the record is loaned to the employee or representative for a reasonable time to enable a copy to be made. (d) exposure records pertaining to work places or working conditions to which the employee is being assigned or transferred. v (II) Employ medical rocords. (IH) Whenever a record has been previously provided without cost to an employee or des ignated representative, the employer may charge reasonable, non-discriminatory administrative costs (i.e., search and copying expenses but not including overhead ex penses) for a request by the employee or des (a) Each employer shall, upon request, assure the access of each employee to employee medical records of which the employee is the subject, except as pro vided in paragraph (e)(2)(ii)(d) below. ignated representative for additional copies of the record, except that (b) Each employer shall, upon request, assure the access of each designated rep (a) An employer shall not charge for an initial request for a copy of new informa tion that has been added to a record which was previously provided; and resentative to the employee medical records of any employee who has given the designated representative spcifi written consent. Appendix A to this section con tains a sample form which may be used to (b) An employer shall not charge for an initial request by a recognized or certified establish specific written consent for access to employee medical records. collective bargaining agent for a copy of an employee exposure record or an analysis using exposure or medical records. (c| Whenever access to employee medical records is requested, a physician repre senting the employer may recommend that the employee or designated represent (Iv) Nothing in this section is intended to ative: preclude employees and collective bargain ing agents from collectively bargaining to ob (1) consult with the physician for the tain access to information in addition to that available under this section. purposes of reviewing and discussing the records requested, Change 12 20.3 19I0.20(cX2XUXcX 1) r HWBB-0032203 mOJK.XZXUXeX OCCUPATIONAL SAFETY AND HEALTH STANDARDS AND INTERPRETATIONS (2} accept a summary of material facts number, payroll number, etc.) or by infor and opinions in lieu of the records re mation which could reasonably be used quested, or under the circumstances indirectly to iden tify specific employees (exact age, height, (3) accept release of the requested weight, race, sex, date of initial employ records only to a physician or other des ment, job title, etc.), the employer shall ignated representative. assure that personal identifiers are removed before access is provided. If the (d) Whenever an employee requests access to his or her employee medical records, and a physician representing the employer believes that direct employee access to information contained in the rec employer can demonstrate that removal of personal identifiers from an analysis is not feasible, access to the personally identifi able portions of the analysis need not be provided. ords regarding a specific diagnosis of a terminal illness or a psychiatric condition could be detrimental to the employee's (3) OSHAoccoss. health, the employer may inform the employee that access will only be provided to a designated representative of the employee having specific written consent, and deny the employee's request for direct access to this information only. Where a designated representative with specific written consent requests access to infor mation so withheld, the employer shall assure the access of the designated repre 0) Each employer shall, upon request, assure the immediate access of represent atives of the Assistant Secretary of Labor for Occupational Safety and Health to employee exposure and medical records and to ana lyses using exposure or medical records. Rules of agency practice and procedure gov erning OSHA access to employee medical records are contained in 29 CFR 1913.10. sentative to this information, even when it is known that the designated representa tive will give the information to the employee. (II) Whenever OSHA seeks access to per sonally identifiable employee medical infor mation by presenting to the employer a writ ten access order pursuant to 29 CFR (e) Nothing in this section precludes a physician, nurse, or other responsible health care personnel maintaining employee medical records from deleting 1913.10(d), the employer shall prominently post a copy of the written access order and its accompanying cover letter for at least fif teen (15) working days. from requested medical records the identi ty of a family member, personal friend, or If) Trade sacrats. fellow employee who has provided confi dential information concerning an (1) Except as provided in paragraph (f)(2) of employee's health status. this section, nothing in this section precludes an employer from deleting from records re (Ill) Analyses using exposure or medical quested by an employee or designated repre records. sentative any trade secret data which discloses manufacturing processes, or discloses the per (a) Each employer shall, upon request, centage of a chemical substance in a mixture, as assure the access of each employee and long as the employee or designated represent designated representative to each analysis ative is notified that information has been -3 using exposure or medical records concern ing the employee's working conditions or deleted. Whenever deletion of trade secret information substantially impairs evaluation of workplace. the place where or the time when exposure to a toxic substance or harmful physical agent oc (b) Whenever access is requested to an curred, the employer shall provide alternative analysis which reports the contents of employee medical records by either direct information which is sufficient to permit the employee to identify where and when exposure identifier (name, address, social security occurred. 1910.20(0(1) 20.4 Change 12 i i 7=3 k ' M ?5] 3 OCCUPATIONAL SAFETY AND HEALTH 1*10.20(0(9 STANDARDS AND INTERPRETATIONS (2) . Notwithstanding any trade secret claims, whenever access to records is requested, the employer shall provide access to chemical or physical agent identities including chemical names, levels of exposure, and employee health status data contained in the requested records. (3) Whenever trade secret information is pro* vided to an employee or designated represent* stive, the employer may require, as a condition of access, that the employee or designated rep resentative agree in writing not to use the trade secret information for the purpose of commercial gain and not to permit misuse of the trade secret information by a competitor or potential competitor of the employer. employees of their rights of access to records at least three (3) months prior to the cessation of the employer's business. (3) 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 pre served for at least thirty (30) years, the em ployer shall: 0) transfer the records to the director of the National Institute for Occupational Safety and Health (NIOSH) if so required by a spe cific occupational safety and health standard; or > (g) Employee information. (1) Upon an employee's first entering into employment, and at least annually thereafter, each employer shall inform employees exposed to toxic substances or harmful physical agents of the following; (I) the existence, location, and availability of any records covered by this section; (II) the person responsible for maintaining and providing access to records; and (ill) each employee's rights of access to these records. (2) Each employer shall make readily available to employees a copy of this standard and its appendices, and shall distribute to employees any informational materials concerning this standard which are made available to the employer by the Assistant Secretary of Labor for Occupational Safety and Health. (h) Tronsfor of records. (1) Whenever an employer is ceasing to do business, the employer shall transfer all records subject to this section to the successor employer. The successor employer shall receive and maintain these records. (2) Whenever an employer is ceasing to do business and there is no successor employer to receive and maintain the records subject to this standard, the employer shall notify affected (II) 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. (4) Where an employer regularly disposes of records required to be preserved for at least thirty (30) years, the employer may, with' at least (3) months notice, notify the Director of NIOSH on an annual basis of the records in tended to be disposed of in the coming year. (I) Appendices. The information contained in the appendices to this section is not intended, by itself, to create any additional obligations not otherwise imposed by this section nor detract from any existing obligation. Q) Effective date. This section shall become effec tive on August 21, 1980. All obligations of this section commence on the effective date except that the employer shall provide the information required under paragraph (g)(1) of this section to all current employees within sixty (60) days after the eff*ective date. Appendix A to 1 1910JO --Semple Authorization Letter for the Releaae of Employee Medical Record Information to Dealtnated Representative I, - (full name of worker/patient) hereby autbonae _____ (individual or organization bolding the medical recordsI to release t o _____ (individual or organization authorized to receive the medical information), the following medical inter mation from my personal medical records:*I (Describe generally the information desired to be released > I give my permission for this medical information to be used Change 12 20.5 Appendi! A HWBB-003220*! <3=3 fcl U-- i -.a Appendix A OCCUPATIONAL SAFETY AND HEALTH STANDARDS AND INTERPRETATIONS for the following purpoo: - but I do not give permission for any other um or re-disclosure of thii inform*tion. (Note.-Several extra linei are provided below eo that you can place additional restriction* on tbia authorisation letter if you want to. You may. however, leave these lines blank. On the other hand, you may want to (1) specify * particular expiration date for this letter (if less than on* yearh (2) describe medical information to be created in the future that you intend to be covered by this authorization letter; or (3) describe portions of the medical information in your records which you do not in tend to be released aa a result of this letter.) Full name of Employee or Legal Representative Signature of Employee or Legal Representative Date of Signature "This Registry contains 124.247 listing* of chemical sub stance*; 33,929 are names of different chemicals with their associated toxidty data and 90,318 are synonym*. This edition includes approximately 7,500 new ebemical compounds that did not appear ia the 1977 Registry, (p. xiii) "The Registry's purposes are many, and it serves a variety of users. It is a single source document for basic toxicity infor mation and for other data, such a* chemical identifiers and information necessary for the preparation of safety directives and hazard evaluations for ehemical substance*. Tbs various types of toxic effects linked to literature citation* provide researchers and occupational health scientists with an intro duction to the toxicological literature, making their own review of the toxic hazard* of a given substance easier. By presenting data on the lowest reported doses that produce effect* by several route* of entry in various species, the Registry furnishes valuable information to those responsible for preparing safety data sheets for chemical substances in the workplace. Chemical and production engineers can use the Registry to identify the hazards which may be associated with chemicri intermediates in the development of final produets, and thus can more readily select substitutes or alternate proc esses which may be less hazardous, (p. xiii) Appendix B to 1910.20--Availability of NIQSH Registry of Toxic Effects of Qiemical Substances RTECS)1 The final standard, 29 CFR 1910.20, applies to all employe* exposure and medical records, and analyses thereof, of employees exposed to toxic substances or harmful physical agents (paragraph (b)(2)). The term "toxic substance or harm ful physical agent" is defined by paragraph (cHll) to encom pass chemical substances, biological agents, and physical stresses for which there is evidence of harmful health effects. The standard uses the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effect* of Chemical Substance* (RTECS) a* one of the ehief sources of information a* to whether evidence of harmful health effects exists. If a substance is listed in the latest printed RTECS. the standard applies to exposure and medical records (and analyses of these records) relevant to employees exposed to the substance. It is appropriate to note that the final standard does not require that employers purchase a copy of RTECS. and many employers need not consult RTECS to ascertain whether their employee exposure or medical records are subject to the stan dard. Employers who do not currently have the latest printed edition of the NIOSH RTECS, however, may desire to obtain a copy. The RTECS is issued in an annual printed edition as man dated by section 20(a)(6) of the Occupational Safety and Health Act (29 U.S.C. 669(a)(6)). The 1978 edition is the most recent printed edition u of May 1, 1980. It* Foreward and Introduc tion describes the RTECS as follows: ' "The annual publication of a list of known toxic substances ia a NIOSH mandate under the Occupational Safety and Health Act of 1970. It ia intended to provide basic information on the known toxic and biological effect* of chemical substances for the use of employers, employees, physicians, industrial hygien ists, toxicologists, researchers, and, in general, anyone con cerned with the proper and safe handling of chemicals. In turn, this information may contribute to a better understanding of potential occupational hazards by everyone Involved and ulti mately may help to bring about a more healthful workplace environment, (p. ili) "In this edition of the Registry, the editors intend to identify "all known toxic substances" which may exist in the environ ment and to provide pertinent data on the toxic effects from known dose* entering an organism by any rout* described. Data may be used for th* evaluation of chemical hazards in the environment, whether they be in tb* workplace, recreation area, or living quarters, (p. xiii) "It must be reemphasized that th* entry of a substance in the Registry does not automatically mean that it must be avoided. A listing does mean, however, that the substance has th* documented potential of being harmful If misused, end ear* must be exercised to prevent tragic consequences, (p, xiv)" Th* RTECS 1978 printed edition may be purchased for 313.00 from the Superintendent of Documents, UJ>. Govern ment Printing Office (GPO), Washington, D.C. 20402 (202 788-3238) (Order GPO Stock No. 017-033-00348-7). Th* 197 printed edition is anticipated to b* issued in tb* summer of 1980. Som* employers may also desire to subscribe to th* quar terly update to tb* RTECS which is published ia a microfiche edition. An annual subscription to quarterly microfiche may be purchased from th* GPO for 314.00 (Order the "Microfiche Edi tion, Registry of Toxic Effects of Chemical Substances"). Both the printed edition and the microfiche edition of RTECS are available for review at many university and pubtie libraries throughout the country. The latest RTECS editions may also be examined at the OSHA Technical Data Center, Room N2439-Rear, United States Department of Labor, 200 Consti tution Avenue, N.Wn Washington, D.C. 20210 (202-523-97001. or at any OSHA Regional or Area Office (See major d ty tele phone directories under United States Government-Labor Department). 1Os April (4. 1980, th* Director of th* Federal Register approved for incorporation b j rsfersoeo into 29 CFR 1910. th* 1978 edition of the National Institute for Occupational Safety and Health Registry of Tox ic Effect* of Chemical Substance* (th* Registry). (See CFR 1910.201c 1(11Hiil). Appendix B 20.6 Chang* 12 HUBB-0032205 HWBB-0032207 (6) Guidelines for medical surveillance of workers, including pre-employment physical examinations to eliminate those physically or psychologically unfit to wear respirators, and periodic physical examinations to review the effectiveness of the respirator program on the basis of .physiological factors. (7) Guidelines for evaluating the programs effectiveness. 3. Exact format of the written procedures can vary.with .each location. 4. Evaluate program annually. Z.R.H. 5/7/81 i.----J -1 6 - I