The Occupational Safety and Health Administration, or OSHA, is currently accepting comments from employers and other relevant entities regarding its rules on employee exposure and medical record access. OSHA will accept comments until April 6, 2020.
OSHA’s purpose in soliciting comments is to determine the burden placed on employers by current recordkeeping regulations. According to the Occupational Safety and Health Act, OHSA is able to require employers to provide certain information as a way of both enforcing the Act and gathering various data on employee accidents, injuries, and illnesses. However, the Act also states that such data collection should not unreasonably burden employers, including those who own and operate small businesses.
This recent request for comments is an effort to simplify compliance with the Occupational and Safety Health Act for employers.
What Are the Rules Regarding Employee Exposure & Medical Record Access?
In addition to logging work-related injuries and illnesses, employers are required by OSHA to provide employees, designated representatives, and OSHA with Employee Exposure Monitoring Data and Employee Medical Records. These records are intended to disclose to employees when they have been exposed to hazards in the workplace, as well as whether or not their health may have been affected as a result.
These records should cover hazards such as:
- Biological hazards
- Toxic chemicals
- Harmful substances
- Repetitive motions
- Harmful vibration
Additionally, employers are required to retain these records for a period of 30 years following the employee’s full term of employment. There are some very limited exceptions to this, but in most cases, an employer essentially must keep these records for the full scope of the employee’s work history.
Exceptions to the 30-Year Retention Rule
As previously stated, employees’ medical records must be kept for at least 30 years. However, there are some exceptions to this rule. If an employee works for an employer for less than one year (12 months), the employer can provide the employee with his/her records upon termination and does not need to keep them for the 30-year retention period.
Additionally, employers do not need to keep health insurance claims records or certain one-time injury first aid records for 30 years. Additionally, if specific OSHA standards designate a timeline that is different from the 30-year period, that timeline should apply.
What Does “Access” Mean?
In regards to employee exposure and medical records, “access” does not only mean the employee has the right to view these records but also that he or she has the right to receive copies of those records. Employers must provide copies of any requested records to the employee and/or the employee’s representative within 15 business days. If the employer cannot provide a copy, the employee has the right to make a copy of the record at no cost.
Employees have the right to gain access to any records in which they are the patients or which apply to them. This includes any records of the specific employee’s exposure to a hazard, as well as records of other employees who held/hold the same position as the requesting employee or who conducted similar work duties as the requesting employee.
Transferring Employee Exposure & Medical Records
When an employer goes out of business or transfers the business to a successor, the employer has certain obligations in regards to employees’ exposure and medical records. If there is a successor, the employer must transfer all records to that successor. If there is no successor, the employer must supply notice to all employees regarding their rights to access their records at least three months prior to the closing of the business. Additionally, when there is no business successor, the employer will also need to provide three months’ notice to the National Institute for Occupational Safety and Health (NIOSH) and transfer employees’ exposure and medical records to the NIOSH.
What Should Employer’s Comments on Employee Exposure & Medical Records Access Cover?
The Department of Labor is seeking answers to specific inquiries in regards to employers’ responsibilities related to employee exposure and medical records access.
As an employer, your comments should include answers to the following questions:
- Is the information you are required to collect under the Occupational Safety and Health Act useful and is it necessary for proper OSHA functioning?
- Are OSHA’s estimates regarding the time and costs associated with collecting the required information accurate?
- How clear, useful, and valuable is the collected information?
- Are there any ways to minimize the burden placed on employers in collecting this information?
If you would like to learn more about submitting comments or any aspect of OSHA’s reporting, information collecting, or recordkeeping requirements, visit the Sheehy, Ware & Pappas website.