Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
Many employers are unaware of significant employee rights under Occupational Safety and Health Administration (OSHA) Regulation 29 Code of Federal Regulations 1910.1020 to access certain records relating to their employment that can often be a vehicle for OSHA citations, as well as workers’ compensation claims or product liability litigation. These same regulations impose significant employer obligations to retain these records for periods of time well past the end of the employment relationship and make them available to former employees. In addition, such records may be assessed by the employee’s legal representative, including union representatives, under certain conditions.
Medical Records
Each employee has a right to access his/her medical records made or maintained by a physician, nurse, or other healthcare professional that is in the possession of the employer. The definition is very broad, including:
• medical and employment questionnaires;
• results of medical examinations, including pre-employment, periodic, and laboratory tests;
• biological monitoring;
• medical opinions, diagnoses, progress notes, and recommendations;
• first-aid records;
• prescriptions; and
• medical complaints.
There are certain exclusions from the definition, which are:
• physical specimens (e.g., blood and urine samples) that are typically discarded;
• records relating to health insurance claims that are maintained separately from the medical program and its records and not accessible to the employer by individual employee identifiers;
• records created solely in preparation for litigation that are privileged under applicable rules of procedure or evidence; and
• records relating to voluntary employee assistance programs.
Exposure Records
In addition to medical records, there is an entire other group of records that must be maintained for access by current and former employees and their legal representatives. This broad category includes any record that evidences that an employee was exposed to a toxic substance or harmful physical agent in the course of employment through inhalation, ingestion, skin contact, absorption, or any other means.
A toxic substance or harmful physical agent to which the employee may have been exposed is likewise broad, including chemicals, bacteria, virus, and fungus as well as physical stresses such as noise, heat, cold, vibration, repetitive motion, radiation, and certain atmospheric pressures.
Who has Right to Access
The range of parties who are entitled to access includes a current employee, former employee, the legal representative of a deceased employee, or other designated representative who is given authorization by the employee. This latter category has allowed attorneys who may wish to pursue workers’ compensation claims against the employer or toxic tort claims against third parties (manufacturers, suppliers) to request the records. There is a sample authorization letter in the regulation that can be required to be completed by the designated representative prior to production, and which should be required.
In addition, in situations where labor unions represent employees, requests for records may be forthcoming as part of efforts to enhance the union’s position in collective bargaining by arguing that there are safety or health hazards at the workplace. Also, unions that are seeking to organize employees have retained attorneys to represent individual employees to make requests for these records that they have used to generate OSHA inspections or to put pressure on employers to recognize the union by threatening complaints of safety or health hazards at the workplace.
The regulation contains limitations on who may have access to specific records that should be reviewed prior to production.
Compliance Time Period
Once the request is made, the records must be made available in a reasonable time, place, and manner. The employer should consider requiring the request to be made in writing so that it can track the timeframe from the request to compliance. Further, if there is any subsequent claim that employee privacy rights were violated by disclosure, the employer has written evidence to support the request. If the record cannot be made available in 15 working days, the employer must advise the employee or representative within this period as to the reason for the delay and when the records will be made available.
Cost of Production
The employer must provide a copy of the record at no cost to the employee or representative, or make available at no cost a mechanical copying facility. The employer should not allow the employee to copy the original records unless a monitor is present to observe to ensure that the records are not taken or otherwise destroyed.
Analyses of Exposure
The regulation also allows access to any analyses that have been made utilizing such records. This provision can be another employer pitfall because the analysis may identify safety or health hazards and constitute an admission of liability. Thus, the employer should decide whether it is prudent to even conduct such an analysis, and if so, whether it should be done at the direction of legal counsel to create legal privileges against disclosure including attorney client, work product, and self-critical analysis.
Employee Notification
As would be expected, the employer is required to notify all new employees of their rights under this regulation; the existence, location, and availability of any records that may be covered by the regulation; and who maintains the records. Employees are entitled to a copy of the regulation upon request.
Preservation of Records
Since many occupational diseases can have long latency periods before the disease becomes apparent or diagnosed, the timeframe for preservation is very lengthy, requiring the preservation of the records for the length of the employee’s employment, plus 30 years.
The employer is required to transfer all records to any successor employer. If the employer goes out of business, it can make provisions to preserve the records or transfer the records to the director of the National Institute of Occupational Safety and Health if a regulation requires it, or give three months notice to the director before disposing of the records.
Potential Liabilities
This regulation has far reaching impact for employers. First, failure to comply may give rise to OSHA citations. Second, the improper disclosure of records may give rise to employee claims of invasion of privacy. Third, these records may provide an employer with a defense to future workers’ compensation claims (by proving lack of exposure to a hazardous substance) that will be lost if the records are not maintained. Fourth, in this era of claims by employees that employers lost or destroyed evidence that the employee could use to maintain a claim against a third party (e.g., chemical manufacturer or supplier), failure to maintain the records could give rise to a claim that the employer “spoiled” evidence to support such third party complaint and that the employer is responsible for damages outside of workers’ compensation.
Employers must become aware of the provisions of this complex regulation in order to avoid the many liabilities that can result from noncompliance and develop a policy and practices to evidence compliance.
Labor and the Law - October 2005 Render