Record Keeping: Exposure & Medical Records
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.