Access To Employee Exposure And Medical Records -- OSHA .

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Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.ABE113Access to Employee Exposure and Medical Records -OSHA Standard 1910.10201Carol J. Lehtola, Charles M. Brown, and William J. Becker2The Impact of Safety on FloridaAgricultureFlorida agriculture, including forestry andseafood, made an annual economic impact of 53billion in 1998. More than 81,000 people work on the40,000 farms in the state, and more than 50,000 areemployed in other activities related to agriculture.The state's agricultural enterprises range from largecitrus, vegetable and cattle operations to smallfamily-operated farms.From 1989 to 1998, there were approximately240 deaths related to agriculture in Florida, accordingto data compiled by the Deep South Center forAgricultural Health and Safety. In addition,agriculture has one of the highest injury and deathrates among U.S. industries.Safety in Florida agriculture is challengingbecause: the state's agricultural enterprises are diverse, safety knowledge among workers varies, manual labor is used extensively, the climate creates year-round heat stress.Therefore, it is vital to assist the public inlearning about OSHA documents related toagriculture. More related information is available atthe following Web sites:Florida AgSafe: http://www.flagsafe.ufl.edu OSHA Regulations: http://www.osha.gov/comp-links.html OverviewThis document, a condensation of Section1910.1020 of the Occupational Safety and HealthAct, is not intended to be totally inclusive but ratherto highlight the information and requirements in thecomplete OSHA standard that owners and managersof agricultural businesses should understand.Note: Standard 1910.1020 is in Subpart Z ofstandard 1910, the OSHA standard on Toxic andHazardous Substances.1. This document is ABE113 (formerly AE113), one of a series of the Agricultural and Biological Engineering Department, Florida Cooperative ExtensionService, Institute of Food and Agricultural Sciences, University of Florida. First published November 2000. Minor Revision: August 2006. Please visit theEDIS Web site at http://edis.ifas.ufl.edu.2. Carol J. Lehtola, assistant professor and Extension Safety Specialist; Charles M. Brown, coordinator information/publication services; William J. Becker,professor emeritus; Department of Agricultural and Biological Engineering, Institute of Food and Agricultural Sciences, University of Florida, Gainesville.The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information andother services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex,sexual orientation, marital status, national origin, political opinions or affiliations. U.S. Department of Agriculture, Cooperative Extension Service,University of Florida, IFAS, Florida A. & M. University Cooperative Extension Program, and Boards of County Commissioners Cooperating. LarryArrington, Dean

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020Contents of OSHA Standard1910.1020 1910.1020(a) -- Purpose2information, the duty to disclose information to apatient/employee or any other aspect of themedical-care relationship, or affect existing legalobligations concerning the protection of trade secretinformation. 1910.1020(b) -- Scope and Application 1910.1020(c) -- Definitions 1910.1020(d) -- Preservation of Records 1910.1020(e) -- Access to Records 1910.1020(f) -- Trade Secrets 1910.1020(g) -- Employee Information 1910.1020(h) -- Transfer of Records 1910.1020(i) -- AppendicesNOTE: Some sections of OSHA standards arelabeled "Reserved." This label implies either thatinformation has been deleted from the previousversion of the standard or that additions to thestandard are anticipated. Because standards oftenreference other standards, it is important thatparagraph numbers remain consistent.Section 1910.1020(a) -- PurposeThe purpose of this section is to provideemployees and their designated representatives a rightof access to relevant exposure and medical records;and to provide representatives of the AssistantSecretary a right of access to these records in order tofulfill responsibilities under the Occupational Safetyand Health Act. Access by employees, theirrepresentatives, and the Assistant Secretary isnecessary to yield both direct and indirectimprovements in the detection, treatment, andprevention of occupational disease. Each employer isresponsible for assuring compliance with this section,but the activities involved in complying with theaccess to medical records provisions can be carriedout, on behalf of the employer, by the physician orother health care personnel in charge of employeemedical records. Except as expressly provided,nothing in this section is intended to affect existinglegal and ethical obligations concerning themaintenance and confidentiality of employee medicalSection 1910.1020(b) -- Scope andApplicationThe regulations in 1910.1020 apply to eachgeneral industry, maritime, and constructionemployer who makes, maintains, contracts for, or hasaccess to employee exposure or medical records, oranalyses thereof, pertaining to employees exposed totoxic substances or harmful physical agents.These regulations also apply to all employeeexposure and medical records, and analyses thereof,of such employees, whether or not the records aremandated by specific occupational safety and healthstandards.These regulations also to all employee exposureand medical records, and analyses thereof, made ormaintained in any manner, including on an in-houseor contractual (e.g., fee-for-service) basis. Eachemployer shall assure that the preservation and accessrequirements of this section are complied withregardless of the manner in which records are madeor maintained.Section 1910.1020(c) -- DefinitionsAccess -- The right and opportunity to examineand copy.Analysis using exposure or medical records -Any compilation of data or any statistical study basedat least in part on information collected fromindividual employee exposure or medical records orinformation collected from health insurance claimsrecords, provided that either the analysis has beenreported to the employer or no further work iscurrently being done by the person responsible forpreparing the analysis.Designated representative -- Any individual ororganization to whom an employee gives writtenauthorization to exercise a right of access. For thepurposes of access to employee exposure records and

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020analyses using exposure or medical records, arecognized or certified collective bargaining agentshall be treated automatically as a designatedrepresentative without regard to written employeeauthorization.Employee -- A current employee, a formeremployee, or an employee being assigned ortransferred to work where there will be exposure totoxic substances or harmful physical agents. In thecase of a deceased or legally incapacitated employee,the employee's legal representative may directlyexercise all the employee's rights under this section.Employee exposure record -- A recordcontaining any of the following kinds of information:3(A) -- Medical and employment questionnairesor histories (including job description andoccupational exposures),(B) -- The results of medical examinations(pre-employment, pre-assignment, periodic, orepisodic) and laboratory tests (including chestand other X-ray examinations taken for thepurpose of establishing a base-line or detectingoccupational illnesses and all biologicalmonitoring not defined as an "employeeexposure record"),(C) -- Medical opinions, diagnoses, progressnotes, and recommendations,(D) -- First aid records,(i) -- Environmental (workplace) monitoringor measuring of a toxic substance or harmfulphysical agent, including personal, area, grab,wipe, or other form of sampling, as well asrelated collection and analyticalmethodologies, calculations, and otherbackground data relevant to interpretation ofthe results obtained;(ii) -- Biological monitoring results whichdirectly assess the absorption of a toxicsubstance or harmful physical agent by bodysystems (e.g., the level of a chemical in theblood, urine, breath, hair, fingernails, etc.) butnot including results which assess thebiological effect of a substance or agent orwhich assess an employee's use of alcohol ordrugs;(iii) -- Material safety data sheets indicatingthat the material may pose a hazard to humanhealth; or(iv) -- In the absence of the above, a chemicalinventory or any other record which revealswhere and when used and the identity (e.g.,chemical, common, or trade name) of a toxicsubstance or harmful physical agent.Employee medical record -- A recordconcerning the health status of an employee which ismade or maintained by a physician, nurse, or otherhealth care personnel, or technician, including:(E) -- Descriptions of treatments andprescriptions, and(F) -- Employee medical complaints.Employee medical record -- Does not includemedical information in the form of:(A) -- Physical specimens (e.g., blood or urinesamples) which are routinely discarded as apart of normal medical practice, or(B) -- Records concerning health insuranceclaims if maintained separately from theemployer's medical program and its records,and not accessible to the employer byemployee name or other direct personalidentifier (e.g., social security number, payrollnumber, etc.), or(C) -- Records created solely in preparation forlitigation which are privileged from discoveryunder the applicable rules of procedure orevidence; or(D) -- Records concerning voluntary employeeassistance programs (alcohol, drug abuse, orpersonal counseling programs) if maintainedseparately from the employer's medicalprogram and its records.Employer -- A current employer, a formeremployer, or a successor employer.

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020Exposure or exposed -- An employee issubjected to a toxic substance or harmful physicalagent in the course of employment through any routeof entry (inhalation, ingestion, skin contact orabsorption, etc.), and includes past exposure andpotential (e.g., accidental or possible) exposure, butdoes not include situations where the employer candemonstrate that the toxic substance or harmfulphysical agent is not used, handled, stored, generated,or present in the workplace in any manner differentfrom typical non-occupational situations.Health Professional -- A physician,occupational health nurse, industrial hygienist,toxicologist, or epidemiologist, providing medical orother occupational health services to exposedemployees.Record -- Any item, collection, or grouping ofinformation regardless of the form or process bywhich it is maintained (e.g., paper document,microfiche, microfilm, X-ray film, or automated dataprocessing).Specific chemical identity -- A chemical name,Chemical Abstracts Service (CAS) Registry Number,or any other information that reveals the precisechemical designation of the substance.Specific written consent -- A writtenauthorization containing the following:(A) -- The name and signature of the employeeauthorizing the release of medical information,(B) -- The date of the written authorization,(C) -- The name of the individual ororganization that is authorized to release themedical information,(D) -- The name of the designatedrepresentative (individual or organization) thatis authorized to receive the releasedinformation,(E) -- A general description of the medicalinformation that is authorized to be released,(F) -- A general description of the purpose forthe release of the medical information, and4(G) -- A date or condition upon which thewritten authorization will expire (if less thanone year).A written authorization does not operate toauthorize the release of medical information not inexistence on the date of written authorization, unlessthe release of future information is expresslyauthorized, and does not operate for more than oneyear from the date of written authorization.A written authorization may be revoked inwriting prospectively at any time.Toxic substance or harmful physical agent -Any chemical substance, biological agent (bacteria,virus, fungus, etc.), or physical stress (noise, heat,cold, vibration, repetitive motion, ionizing andnon-ionizing radiation, hypo- or hyperbaric pressure,etc.) which:(i) -- Is listed in the latest printed edition of theNational Institute for Occupational Safety andHealth (NIOSH) Registry of Toxic Effects ofChemical Substances (RTECS) which isincorporated by reference as specified in Sec.1910.6; or(ii) -- Has yielded positive evidence of an acuteor chronic health hazard in testing conductedby, or known to, the employer; or(iii) -- Is the subject of a material safety datasheet kept by or known to the employerindicating that the material may pose a hazardto human health.Trade secret -- Any confidential formula,pattern, process, device, or information orcompilation of information that is used in anemployer's business and that gives the employer anopportunity to obtain an advantage over competitorswho do not know or use it.Section 1910.1020(d) -- Preservationof Records1910.1020(d)(1) -- Unless a specificoccupational safety and health standard provides adifferent period of time, each employer shall assurethe preservation and retention of records as follows:

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020Employee medical records -- The medicalrecord for each employee shall be preserved andmaintained for at least the duration of employmentplus thirty (30) years, except that the following typesof records need not be retained for any specifiedperiod:(A) -- Health insurance claims recordsmaintained separately from the employer'smedical program and its records,(B) -- First aid records (not including medicalhistories) of one-time treatment andsubsequent observation of minor scratches,cuts, burns, splinters, and the like which do notinvolve medical treatment, loss ofconsciousness, restriction of work or motion,or transfer to another job, if made on-site by anon-physician and if maintained separatelyfrom the employer's medical program and itsrecords, and(C) -- The medical records of employees whohave worked for less than (1) year for theemployer need not be retained beyond the termof employment if they are provided to theemployee upon the termination ofemployment.Employee exposure records -- Each employeeexposure record shall be preserved and maintainedfor at least thirty (30) years, except that:(A) -- Background data to environmental(workplace) monitoring or measuring, such aslaboratory reports and worksheets, need onlybe retained for one (1) year so long as thesampling results, the collection methodology(sampling plan), a description of the analyticaland mathematical methods used, and asummary of other background data relevant tointerpretation of the results obtained, areretained for at least thirty (30) years; and(B) -- Material safety data sheets andparagraph (c)(5)(iv) records concerning theidentity of a substance or agent need not beretained for any specified period as long assome record of the identity (chemical name ifknown) of the substance or agent, where itwas used, and when it was used is retained for5at least thirty (30) years(1); (Note: Materialsafety data sheets must be kept for thosechemicals currently in use that are affected bythe Hazard Communication Standard inaccordance with 29 CFR 1910.1200(g)) and,(C) -- Biological monitoring results designatedas exposure records by specific occupationalsafety and health standards shall be preservedand maintained as required by the specificstandard.Analyses using exposure or medical records -Each analysis using exposure or medical records shallbe preserved and maintained for at least thirty (30)years.Nothing in this section is intended to mandate theform, manner, or process by which an employerpreserves a record so long as the informationcontained in the record is preserved and retrievable,except that chest X-ray films shall be preserved intheir original state.Section1910.1020(e) -- Access toRecordsSection 1910.1020(e)(1) -- General(i) -- Whenever an employee or designatedrepresentative requests access to a record, theemployer shall assure that access is provided in areasonable time, place, and manner. If the employercannot reasonably provide access to the record withinfifteen (15) working days, the employer shall withinthe fifteen (15) working days apprise the employeeor designated representative requesting the record ofthe reason for the delay and the earliest date when therecord can be made available.(ii) -- The employer may require of the requesteronly such information as should be readily known tothe requester and which may be necessary to locate oridentify the records being requested (e.g., dates andlocations where the employee worked during the timeperiod in question).(iii) -- Whenever an employee or designatedrepresentative requests a copy of a record, theemployer shall assure that either:

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020(A) -- A copy of the record is provided withoutcost to the employee or representative,(B) -- The necessary mechanical copyingfacilities (e.g., photocopying) are madeavailable without cost to the employee orrepresentative for copying the record, or(C) -- The record is loaned to the employee orrepresentative for a reasonable time to enable acopy to be made.(iv) -- In the case of an original X-ray, theemployer may restrict access to on-site examinationor make other suitable arrangements for thetemporary loan of the X-ray.(v) -- Whenever a record has been previouslyprovided without cost to an employee or designatedrepresentative, the employer may charge reasonable,non-discriminatory administrative costs (i.e., searchand copying expenses but not including overheadexpenses) for a request by the employee ordesignated representative for additional copies of therecord, except that(A) -- An employer shall not charge for aninitial request for a copy of new informationthat has been added to a record which waspreviously provided; and(B) -- An employer shall not charge for aninitial request by a recognized or certifiedcollective bargaining agent for a copy of anemployee exposure record or an analysis usingexposure or medical records.records relevant to the employee. For thepurpose of this section, an exposure recordrelevant to the employee consists of:(1) -- A record which measures or monitors theamount of a toxic substance or harmfulphysical agent to which the employee is or hasbeen exposed;(2) -- In the absence of such directly relevantrecords, such records of other employees withpast or present job duties or workingconditions related to or similar to those of theemployee to the extent necessary toreasonably indicate the amount and nature ofthe toxic substances or harmful physicalagents to which the employee is or has beensubjected, and(3) -- Exposure records to the extent necessaryto reasonably indicate the amount and natureof the toxic substances or harmful physicalagents at workplaces or under workingconditions to which the employee is beingassigned or transferred. Requests by designated representatives forunconsented access to employee exposurerecords shall be in writing and shall specify withreasonable particularity:(1) -- The record requested to be disclosed; and(2) -- The occupational health need for gainingaccess to these records.Access to Employee medical records:(vi) -- Nothing in this section is intended topreclude employees and collective bargaining agentsfrom collectively bargaining to obtain access toinformation in addition to that available under thissection.Section 1910.1020(e)(2) -- Employee anddesignated representative accessAccess to Employee exposure records: Except as limited by paragraph (f) of thissection, each employer shall, upon request,assure the access to each employee anddesignated representative to employee exposure6 Each employer shall, upon request, assure theaccess of each employee to employee medicalrecords of which the employee is the subject,except as provided below (See below at **.) Each employer shall, upon request, assure theaccess of each designated representative to theemployee medical records of any employee whohas given the designated representative specificwritten consent. Appendix A to this sectioncontains a sample form which may be used toestablish specific written consent for access toemployee medical records.

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020 Whenever access to employee medical recordsis requested, a physician representing theemployer may recommend that the employee ordesignated representative:(1) -- Consult with the physician for thepurposes of reviewing and discussing therecords requested,(2) -- Accept a summary of material facts andopinions in lieu of the records requested, or(3) -- Accept release of the requested recordsonly to a physician or other designatedrepresentative. (**) Whenever an employee requests access tohis or her employee medical records, and aphysician representing the employer believesthat direct employee access to informationcontained in the records regarding a specificdiagnosis of a terminal illness or a psychiatriccondition could be detrimental to the employee'shealth, the employer may inform the employeethat access will only be provided to a designatedrepresentative of the employee having specificwritten consent, and deny the employee's requestfor direct access to this information only. Wherea designated representative with specific writtenconsent requests access to information sowithheld, the employer shall assure the access ofthe designated representative to this information,even when it is known that the designatedrepresentative will give the information to theemployee. A physician, nurse, or other responsible healthcare personnel maintaining employee medicalrecords may delete from requested medicalrecords the identity of a family member, personalfriend, or fellow employee who has providedconfidential information concerning anemployee's health status.Access to Analyses using exposure or medicalrecords: Each employer shall, upon request, assure theaccess of each employee and designatedrepresentative to each analysis using exposure or7medical records concerning the employee'sworking conditions or workplace. Whenever access is requested to an analysiswhich reports the contents of employee medicalrecords by either direct identifier (name, address,social security number, payroll number, etc.) orby information which could reasonably be usedunder the circumstances indirectly to identifyspecific employees (exact age, height, weight,race, sex, date of initial employment, job title,etc.), the employer shall assure that personalidentifiers are removed before access isprovided. If the employer can demonstrate thatremoval of personal identifiers from an analysisis not feasible, access to the personallyidentifiable portions of the analysis need not beprovided.Section 1910.1020(e)(3) -- OSHA accessEach employer shall, upon request, and withoutderogation of any rights under the Constitution or theOccupational Safety and Health Act of 1970, 29U.S.C. 651 "et seq.," that the employer chooses toexercise, assure the prompt access of representativesof the Assistant Secretary of Labor for OccupationalSafety and Health to employee exposure and medicalrecords and to analyses using exposure or medicalrecords. Rules of agency practice and proceduregoverning OSHA access to employee medical recordsare contained in 29 CFR 1913.10.Whenever OSHA seeks access to personallyidentifiable employee medical information bypresenting to the employer a written access orderpursuant to 29 CFR 1913.10(d), the employer shallprominently post a copy of the written access orderand its accompanying cover letter for at least fifteen(15) working days.Section 1910.1020(f) -- TradeSecrets1910.1020(f)(1) -- Except as provided inparagraph (f)(2) of this section, nothing in thissection precludes an employer from deleting fromrecords requested by a health professional, employee,or designated representative any trade secret datawhich discloses manufacturing processes, or

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020discloses the percentage of a chemical substance inmixture, as long as the health professional, employee,or designated representative is notified thatinformation has been deleted. Whenever deletion oftrade secret information substantially impairsevaluation of the place where or the time whenexposure to a toxic substance or harmful physicalagent occurred, the employer shall provide alternativeinformation which is sufficient to permit therequesting party to identify where and when exposureoccurred.1910.1020(f)(2) -- The employer may withholdthe specific chemical identity, including the chemicalname and other specific identification of a toxicsubstance from a disclosable record provided that:(i) -- The claim that the information withheldis a trade secret can be supported;(ii) -- All other available information on theproperties and effects of the toxic substance isdisclosed;(iii) -- The employer informs the requestingparty that the specific chemical identity isbeing withheld as a trade secret; and(iv) -- The specific chemical identity is madeavailable to health professionals, employeesand designated representatives in accordancewith the specific applicable provisions of thisparagraph.1910.1020(f)(3) -- Where a treating physician ornurse determines that a medical emergency exists andthe specific chemical identity of a toxic substance isnecessary for emergency or first-aid treatment, theemployer shall immediately disclose the specificchemical identity of a trade secret chemical to thetreating physician or nurse, regardless of theexistence of a written statement of need or aconfidentiality agreement. The employer may requirea written statement of need and confidentialityagreement, in accordance with the provisions ofparagraphs (f)(4) and (f)(5), as soon ascircumstances permit.1910.1020(f)(4) -- In non-emergency situations,an employer shall, upon request, disclose a specific8chemical identity, otherwise permitted to be withheldunder paragraph (f)(2) of this section, to a healthprofessional, employee, or designated representativeif:(i) -- The request is in writing;(ii) -- The request describes with reasonabledetail one or more of the followingoccupational health needs for the information:(A) -- To assess the hazards of thechemicals to which employees will beexposed;(B) -- To conduct or assess sampling ofthe workplace atmosphere to determineemployee exposure levels;(C) -- To conduct pre-assignment orperiodic medical surveillance of exposedemployees;(D) -- To provide medical treatment toexposed employees;(E) -- To select or assess appropriatepersonal protective equipment for exposedemployees;(F) -- To design or assess engineeringcontrols or other protective measures forexposed employees; and(G) -- To conduct studies to determine thehealth effects of exposure.(iii) -- The request explains in detail why thedisclosure of the specific chemical identity isessential and that, in lieu thereof, thedisclosure of the following information wouldnot enable the health professional, employeeor designated representative to provide theoccupational health services described inparagraph (f)(4)(ii) of this section;(A) -- The properties and effects of thechemical;(B) -- Measures for controlling workers'exposure to the chemical;

Archival copy: for current recommendations see http://edis.ifas.ufl.edu or your local extension office.Access to Employee Exposure and Medical Records -- OSHA Standard 1910.1020(C) -- Methods of monitoring andanalyzing worker exposure to thechemical; andinformation shall be informed by the healthprofessional prior to, or at the same time as, suchdisclosure.(D) -- Methods of diagnosing and treatingharmful exposures to the chemical;1910.1020(f)(8) -- If the employer denies awritten request for disclosure of a specific chemicalidentity, the denial must:(iv) -- The request includes a description of theprocedures to be used to maintain theconfidentiality of the disclosed information;and(v) -- The health professional, employee, ordesignated representative and the employer orcontractor of the services of the healthprofessional or designated representative agreein a written confidentiality agreement that thehealth professional, employee or designatedrepresentative will not use the trade secretinformation for any purpose other than thehealth need(s) asserted and agree not torelease the information under anycircumstances other than to OSHA, asprovided in paragraph (f)(7) of this section,except as authorized by the terms of theagreement or by the employer.1910.1020(f)(5) -- The confidentiality agreementauthorized by paragraph (f)(4)(iv) of this section:(i) -- May restrict the use of the information tothe health purposes indicated in the writtenst

The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and . 1910.1020(f) -- Trade Secrets 1910.1020(g) -- Employee Information 1910.1020(h) -- Transfer of Records 1910.1020(i) -- Appendices . pertaining to employees exposed to toxic .

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