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Standard Interpretations
10/29/1997 - Access to employee exposure and medical records. |
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Standard Number: | 1910.120; 1910.1020 |
October 29, 1997 Richard J. DeLuca, MPH, CIH Vice President EMR 4360 Chamblee Dunwoody Road Suite 202 Atlanta, Georgia 30341 Dear Mr. DeLuca: This is in response to your inquiry regarding an inability to provide medical records in accordance with 29 CFR 1910.1020, Access to employee exposure and medical records. You state in your letter that your client is subject to medical surveillance requirements under 29 CFR 1910.120 and various substance-specific standards. You also indicate that, with respect to the Occupational Safety and Health Administration (OSHA) requirements in 29 CFR 1910.1020 regarding recordkeeping for employee medical surveillance records, your client is able to provide historic "medical data and interpretive reports (including chest x-ray interpretations)," but has experienced difficulty in obtaining original chest x-rays taken prior to 1992 despite the following actions:
[Question 1:] What kind of enforcement action, if any, would OSHA take in the above circumstances? [Reply:] OSHA requires that employers conduct a good faith, diligent search for employee medical records and that employers do all they can to assure employee access to these records. OSHA does not intend, however, that the search for and provision of records be a "heroic" effort or one that is unusually disruptive to the employer's operation. If OSHA determines that the employer has demonstrated a good-faith effort to fulfill his or her responsibilities under 29 CFR 1910.1020 to obtain and provide access to employee medical records, then the employer would not be cited in violation of those requirements. [Question 2:] What recommendations would OSHA suggest to further minimize compliance exposure potential? [Reply:] Many medical services are performed through contractual arrangements rather than done in-house by persons employed exclusively by the employer. The contractual arrangements typically exist in written form. Under the records access standard, OSHA specifically requires that, where necessary, contractual arrangements be modified to assure that the access and preservation provisions of the rule are complied with. This includes clearly stating, for example, who maintains original X-rays and for how long of time. if your client's current recordkeeping procedures support compliance with the requirements of 29 CFR 1910.1020 and if your client has made a diligent, good faith effort to rectify deficiencies in prior recordkeeping practices, OSHA would consider your client in compliance with the standard. You are correct in assuming that your client's ability to provide other pre-1992 medical data and X-ray interpretive reports supports their demonstration of compliance [Question 3:] If the agency were to issue a citation, what classification would be anticipated? What monetary penalty, if any, would be applied? [Reply:] It is not OSHA's policy to cite employers when a diligent, good-faith effort has been made. Please refer to the answers to questions 1. and 2. above. for additional guidance about OSHA's citation and penalty procedures, you may want to consult OSHA's Field Inspection Reference Manual (FIRM). Chapter III C addresses types of violations and Chapter IV C discusses penalties issued by OSHA. The FIRM is available on the Internet at http://www.osha-slc.gov/Firm_osha_toc/Firm_toc_by_sect.html. I hope this information is useful to you. If you need further clarification of this letter, please contact [the Office of Health Enforcement (OHE)] at (202) 693-2190. Sincerely, John B. Miles, Jr., Director Directorate of Compliance Programs [Corrected 3/7/2006] |
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