Safety Articles

Some of the more confusing regulations that OSHA has relates to contractors maintaining employee medical records. Questions like, what records? Who has to maintain records? And for how long? These questions and more will be answered below.

Subpart C “General Safety and Health Provisions”

Subpart C “General Safety and Health Provisions” contains section 1926.33 entitled “Access to employee exposure and medical records”. It’s this section that we’ll focus on.

First, the reason for this access to records is to allow the employee or their representatives (such as a union) to review their records for their personal reasons. Also OSHA requires the same access to fulfill it’s obligation under the OSH Act to make improvements in the detection, treatment, and prevention of occupational disease.

Employees who make, maintain, contracts for, (say, through a physician’s office) or has access to employee exposure and medical records are required to make these records available. Therefore, employees who have no such records are exempt. However that is unlikely since records of accidents (for instance, the OSHA form 300 and 301) are considered a medical record.

The types of medical and exposure records are:

• Employment questionnaires which have health related questions.
• Pre-employment or routine medical examinations or physicals, including and physician’s or technician’s notes.
• First-Aid records and/or accident reports.
• Employee medical complaints.
• Any records or test results from tests performed in response to an employee’s exposure to a hazardous substance.
• MSDS’s which have a hazard to human health or any chemical inventory sheets showing what, where, and when hazardous substances were used.

An important item to note is that the results of any drug testing, records of alcohol or drug use counseling programs, records prepared for litigation, or anonymous health insurance statistical records are exempt from the recordkeeping requirements if these records are kept separately from the employee’s other records.

If you, as the employer retain the services of a medical office to perform physicals, worker injuries, and other such duties, this medical office can be responsible for the OSHA recordkeeping requirements. This medical office may withhold information under patient confidentiality, and OSHA recognizes this right. Otherwise these records should be kept accessible at your central office.

How long do records have to be kept?

Well first and easiest, medical records can be turned over to employees who were terminated before one full year’s employment. This ends the employer’s responsibility for that particular employee. However, all other employee’s medical records (with minor exceptions) have to be maintained for the employee’s duration of work plus thirty years. In addition, all other employee’s exposure records (with minor exceptions) have to be maintained for thirty years. Finally, there are some conditions and provisions which can extend the thirty year limit, so for practical purposes, records should be kept indefinitely.

Records requested by employees, their representatives, or OSHA shall be turned over within 15 days, or a reason shall be given the requester as to why there is a delay. The records may be loaned, copies made by the employer, or copies made by the requester (at no cost- typically by copying facilities on the employer’s site).

If it’s a former employee making the request, the employer may ask for the specific dates the employee worked, social security number, and the employee’s name to help in finding the records. In the case of an employee’s representative, a written consent shall be required from the employee. If OSHA makes the request, the employer shall post the OSHA request publicly for 15 days.

Most jobsites encountered have more than one contractor involved. If you’re the only contractor on a particular jobsite, and a CSHO [Compliance and Health Safety Officer] discovers violations, you would receive any citations and fines- simple.

However, the way OSHA treats jobsites with more than one contractor may surprise you.

For instance general contractors who disregard hazards created by other subcontractors onsite may find themselves with the same citation as well! In most cases, immediate [written if necessary] notification of any violations to the controlling contractor onsite to quickly eliminate the hazard will not only limit possible worker injury, but also prevent widespread citations passed out to all contractors onsite regardless of their perceived involvement.

Lets take a look at a hypothetical situation that could occur on a jobsite. Say a construction project has a construction manager and a general contractor. An excavation subcontractor opens up for an 8′ deep foundation, which is then poured. Before backfill is placed however, the plumbing contractor places a 2×10 board across the 8′ deep excavation for a walkway. Various subcontractors then walk across the board to gain access to the building interior to perform work. A CSHO observes the various trades crossing the makeshift ramp, contacts the construction manager, and conducts an inspection resulting in the citation of this single violation.

Question: Which contractors could be cited?
Answer: Every contractor onsite could be cited!

OSHA has defined who on a multiple-contractor jobsite can be cited for a single violation. This comes from the 29 CFR Part 1926.16 (a) through (d) titled “Rules of Construction”. The following applicable statements illustrate OSHA’s position with regard to each contractor’s responsibility concerning safety hazards.

(a) “…the prime contractor and his subcontractors may…make an agreement…thus relieving the subcontractors from the actual but not any legal, responsibility…”

(a) “…In no case shall the prime contractor be relieved of the overall responsibility for compliance with the requirements of the part [the OSHA Act] for all work to be performed under the contract.”

(b) “…the prime contractor assumes all obligations under the [OSHA Act] …, whether or not he subcontracts any part of the work.”

(c) “…[the subcontractor] also assumes responsibility for complying with the [the OSHA Act] with respect to [his portion of work]. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor…shall be deemed to have joint responsibility.”

(d) “Where joint responsibility exists, both the prime contractor and his subcontractor[s] regardless of tier, shall be … subject to [the OSHA Act].”

OSHA has interpreted the above statements to define classes of contractors which can be cited for a violation. There are four types:

The “Exposing Employer”

This is defined as the contractor who by action or inaction allows his workers to be exposed to a hazard. In the hypothetical case described before, any workers crossing the makeshift ramp would allow OSHA to cite [and fine!] their employers- even if their employer had no knowledge of this happening!

The “Creating Employer”

This is defined as the contractor who actually created the hazard. In this case, the plumbing contractor or perhaps the excavation contractor would be determined as having created the hazard by not backfilling, or at least providing a walkway with handrails.

The “Controlling Employer”

This is defined as the contractor who has the authority to ensure that hazardous conditions are corrected. In this case the construction manager would have that role and could be cited for not having the hazard corrected.

The “Correcting Employer”

This is defined as the contractor who has the responsibility to actually correct the hazardous conditions. In this case the general contractor would likely have had that role and could be cited for not correcting the hazard..

As you can see in this example, many contractors can be cited and fined for each violation, depending on a contractor’s involvement- even if peripheral.

Now, what can you do to protect yourself from getting caught “in the net” with other contractors when violations are discovered? Again OSHA has developed a list of items as a defense to a citation- however,

ALL ITEMS MUST APPLY:

• The contractor did not create the hazard.
• The contractor did not have the responsibility or authority to have the hazard corrected.
• The contractor did not have the ability to correct or remove the hazard.
• The contractor notified other contractors in control of the specific hazards to which it’s workers were being exposed to.
• The contractor has instructed it’s workers to:
  • Recognize the hazard.
  • How to avoid it.
  • Where feasible- use protection from it.
  • Remove themselves from the jobsite.

From a review of the above items it would seem that each contractor onsite in effect has to make their own safety inspection of the jobsite prior to, and during the duration of work.

While this may seem impractical, safety is indeed everyone’s concern. Contractors who show written evidence of a practice of notifying other contractors of their potential safety hazards may go a long way in a favorable finding from a CSHO when handing out citations.

Another way to help your position whether you’re a general or subcontractor is to have safety as a regular topic of discussion. Almost every construction project has either weekly or monthly progress meetings. This is an excellent time for you to place jobsite safety on the agenda as an item to be discussed. This is where new hazards seen by any contractor can be brought out, and a plan to quickly eliminate it accomplished. Any new hazardous materials can be determined, the jobsite MSDS sheets updated, and all contractors brought up to speed as to what hazardous materials are onsite [another OSHA requirement].

All contractors onsite should work together to promote safety. At times any contractor can “slip up”, and a word from the general or construction manager can keep everyone onsite not only safe- but safe from possible collateral citations. Looking out for each other should be part of any construction project.

Are your workers causing you liabilities?

An OSHA safety course can help keep you from having to deal with these issues.  Contact us today for a materials safety manual for your jobsite.