U.S. Department of Labor
Program Highlights

SCOPE - Employers in general industry and the maritime and construction industries must provide records access to all employees exposed to toxic substances and harmful physical agents, their employee representatives, health professionals, and OSHA. The rule does not require creation of any records, only preservation. Access means the right to examine and copy records.

ACCESS RULES - Employers must provide records promptly, generally within 15 working days. They must provide a date for release of the information and an explanation of the delay should it take longer to process the request. Employers are to inform their workers initially and at least annually of their rights to access to medical and exposure records. OSHA may obtain personal medical records promptly without the written consent of the subject employees, but will adhere to rules of agency practice and procedure governing OSHA access to employee medical records contained in Title 29 Code of Federal Regulations (CFR) 1913.10.

Records requests need not be in writing except where trade secrets are involved. Union and health professionals must have specific written consent to gain access to employees' personal medical records but may examine exposure records without such consent. However, they must state the specific record needed and the occupational health need for gaining access to the information. Health professionals include physicians, occupational health nurses, industrial hygienists, toxicologists, and epidemiologists who provide medical or other occupational health services to exposed employees.

Employees have prompt and no unreasonable barriers to gaining access to their own exposure and medical records except where a physician representing the employer believes that direct employee access to certain sensitive information in the record could be detrimental to the employee. However, they have access to exposure records of others when these exposures represent their past or present exposure or exposure where an employee is being assigned or transferred.

RECORDS AND RETENTION RATES - The rule covers records of employee exposure to toxic substances and harmful physical agents and employee personal medical records. Exposure records must be maintained for 30 years and medical records for the duration of employment plus 30 years. First aid records and experimental toxicological research records are excluded from the 30-year retention requirements.

If a company maintains a chemical inventory or set of material safety data sheets, it need not retain production records, shipping records, invoices, batch cards or other similar documents. Biological monitoring results, except those pertaining to alcohol or drugs, are to be retained, but records created in anticipation of litigation (workers' compensation examinations, for example) need not be. Personal medical records for short-term employees (less than one year) do not have to be retained if they are provided to the employee on termination.

Employers need not copy X-rays and may require viewing on site or at some other suitable location. All X-rays, except chest X-rays, may be microfilmed for records storage.

TOXIC SUBSTANCES - Toxic substances and harmful agents include any material listed in the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Hazards (RTECHS); substances which have evidenced an acute chronic health hazard in testing conducted by or known to the employer; or substances in a material safety data sheet kept by or known to the employer indicating that the material may pose a health hazard. Except for trade secrets, employers are to disclose the specific chemical identity [chemical name and Chemical Abstract Service (CAS) number] of materials for which exposure records are requested.

TRADE SECRETS - Employers may withhold the specific chemical identity of a toxic substance if:

* they can support a claim that this information represents a trade secret;

* all other information concerning the toxic substance is disclosed as required;

* they state that the specific chemical identity is being withheld as a trade secret;

* they make the chemical name available to health professionals, employees, and designated representatives under certain specified conditions.

In a medical emergency, an employer must immediately disclose the specific chemical identity of a toxic substance to a treating physician or nurse when needed for emergency or first aid treatment. The employer may obtain a statement of need and a confidentiality agreement as soon as circumstances permit.

When there is no emergency, requestors seeking trade secret identity must put their request in writing, describing the medical or health need for which this is requested and explain why other information (such as health risks of the chemical, proper protective measures, etc.) is insufficient. Requestors must also describe the procedures they will take to protect confidentiality, agree not to use the information except for health purposes, and not to disclose the information to anyone except OSHA. Confidentiality agreements must be signed and may include a liquidated damages provision, but no penalty bond.

Employers denials of request for specific chemical identities must be in writing within 30 days of the request. Denials must provide evidence that the information is a trade secret and explain how alternate information will suffice. The requestor can appeal the denial to OSHA. If the agency finds the denial to be improper, the employer can be cited and penalties proposed.

_________________________________________________________________

This is one of a series of fact sheets highlighting U.S. Department of Labor programs. It is intended as a general description only and does not carry the force of legal opinion. This information will be made available to sensory impaired individuals upon request. Voice phone: (202) 219-8151. TDD message referral phone: 1-800-326-2577.