March 14, 1988

Mr. Richard Boggs
Vice President
Organization Resources Counselors, Inc.
National Place, Suite 911
1331 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Dear Mr. Boggs:

This is in further response to your letter of November 24, 1987, regarding the medical surveillance provisions of the benzene standard, 29 CFR 1910.1028(i). We believe some additional clarification may be needed to our response of February 8.

Regarding the employers' responsibility when an employee refuses to take a medical examination, as mentioned in our earlier letter, your interpretation is essentially correct. The employee is not required to take the medical examination. If the employer fairly and in good faith offers the examination to the employee and the employee refuses, the employer has no additional obligation under the standard. As you mention, having the employee sign a release affirming that he or she had been offered the benefits and refused to participate is a good way to document the refusal.

Your second question dealt with whether employers must include new employees in a medical surveillance program because of possible benzene exposure with prior employers. The response given in our February 8 letter is accurate. An employer is responsible for providing medical surveillance to its employees based on the the employees' exposures with that employer, not based on possible exposures with other employers.

Your third question was on employers' responsibilities to provide ongoing medical surveillance for employees who have been exposed to more than 10 ppm of benzene for 30 or more days in a year prior to the effective date of the standard when employed by their current employer. Our earlier response is not completely clear on this point.

The purpose of this provision is to provide medical surveillance for those employees who were exposed to higher exposures in the past and would most benefit by it. Accordingly, employees who were exposed to over 10 ppm for more than 30 days in any year while employed by the employees' current employer are covered by the requirement for yearly medical surveillance. This interpretation is consistent with use of the term "a year" prior to effective date of the standard rather than the term "the year."

If we can be of further assistance, please feel free to contact us again.

Sincerely,



Thomas J. Shepich, Director
Directorate of Compliance Programs