Employee%20Medical%20and%20Exposure%20Records

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Employee Medical and Exposure Records

• Keeping and providing access to medical and
  exposure records

November, 2010
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This Module will cover the following

• The scope and purpose of the rule WAC 296-802
• The specific retention periods and requirements
  for medical and exposure records, and analysis
• The process for accessing identifiable medical
  information

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Rule Scope

• This rule applies to all employers who make,
  maintain, contract for, or have access to
  employee medical or exposure records, or analysis
  of employee medical or exposure records.

All employee medical and exposure records are
included, whether or not they are required by
specific safety and health rules.
Note exposure records are any records, data or
measurements of employee exposure to chemicals or
physical hazards, or biological monitoring results
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Rule Purpose

• The rule fulfills 3 primary purposes
• To require the retention of medical and exposure
  records related to employees exposure to toxic
  substances or harmful physical agents.
• To ensure access to records by affected
  employees, designated representatives and DOSH.
• To ensure employees are informed by their
  employers of their right to access records, how
  records are maintained and the procedures for
  obtaining access.

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Related Rules

• The following 3 slides provide information on
  these related rules
• Trade secrets
• Chemical hazard communication
• Material Safety Data Sheets (MSDS)

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Trade Secrets

• WAC 296-816, Trade Secrets allows employers to
  withhold trade secret information from employee
  medical or exposure records.
• Employers may condition access to trade secret
  information upon a written agreement not to
  misuse the information.

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Chemical Hazard Communication

• The chemical hazard communication standard
  requires manufacturers and importers to assess
  the hazards of chemicals, label the containers
  with the hazards and provide MSDS
• Employers must provide employees with information
  on the hazards of chemicals they are exposed to.

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Material Safety Data Sheets

• WAC 296-800-180, Material Safety Data Sheets as
  Exposure Records, establishes that MSDS are a
  type of exposure record.
• MSDS must be retained and made available to
  employees, their representatives and the
  department as exposure records.

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Other legal obligations

• The requirements of this rule do not affect any
  other legal obligations the employer has to keep
  employee medical information confidential.
• In general the employer contracts with a medical
  provider to maintain employee medical records in
  a confidential manner.

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Medical Records Retention

• Employee medical records must be retained for
  duration of employment plus 30 years.
• If a specific rule provides a different
  retention period that retention period must be
  followed, e.g. the lead rule requires that
  medical records be retained for at least forty
  years, or for the duration of employment plus
  twenty years, whichever is longer.

Link to list of specific rule retention
requirements
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Medical Records (Cont.)

• Retention Exemption
• If an employee works less than one year the
  medical record does not need to be retained as
  long as the record is provided to the employee
• The following records do not need to be kept
• Health insurance claims maintained separately
  from the medical record
• Records of first-aid treatment, if made on-site
  by a non-physician and kept separately from the
  medical record

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Exposure Records Retention

• Exposure records must be retained for 30 years
  from the date they were created.
• If a specific rule provides a different retention
  period that retention period must be followed.
• For example the arsenic rule requires that
  exposure records be retained for at least forty
  years, or for the duration of employment plus
  twenty years, whichever is longer.

Specific employee medical exposure records
requirements
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Exposure Records (Cont.)

• All monitoring background data does not need to
  be kept for more than one year as long as a
  summary of the data is kept for 30 years.
• Individual exposure records concerning the
  identity of a substance need not be kept as long
  as some record of the identity of the substance,
  where and when it was used, is kept for 30 years.

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Analysis of Records

• Analysis using medical or exposure records must
  be kept for at least 30 years.
• Employees must not be identified in any portion
  of released analysis that reports the contents of
  employee medical records, e.g., names, social
  security number, or other identifying information.

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Informing Employees about Records

• The following information must be provided upon
  employment and at least annually
• Where records are located
• Who is responsible for the records
• Who to contact for access
• Their rights to copy records
• The information must be made accessible, but
  formal training is not necessary

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Employee Access

• The requirements of this rule apply to both
  current and former employees.
• Provide employees, or their representatives,
  access to their records upon request
• In a reasonable time, place and manner
• Within 15 working days of the request
• Provide a copy at no cost. A nominal charge may
  be applied for additional copies.

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Employee Access (Cont.)

• A physician representing the employer may
  restrict access to health information regarding a
  terminal illness or psychiatric condition if the
  physician believes this information could harm
  the employee.
• The physician may recommend that this
  information only be released to a designated
  employee representative.

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Employee Access (Cont.)

• A healthcare professional maintaining employee
  medical records may delete the identity of a
• Family member
• Personal friend or fellow employee who has
  provided confidential information concerning the
  employees health status.

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Employee Access (Cont.)

• Provide requested exposure records for an
  employee's current or transfer work assignment.
• In the absence of records specific to the
  employee, exposure records of other employees
  with the same job duties or related working
  conditions may be provided.

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Written Authorization for Access

• Provide designated representatives access to
  employee medical records when the employee
  provides specific written authorization.
• If the authorization does not contain an
  expiration dates it expires in 90 days.
• An employee may revoke the authorization at any
  time.

Sample authorization letter to release medical
information
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DOSH Access Orders

• DOSH may issue an access order when it is
  necessary to obtain identifiable employee medical
  information.
• The rule specifies the contents of an access
  order. WAC 296-802-500

An access order is not needed - For records
that do not contain personal identification
information - To verify compliance with medical
surveillance requirements of another rule - To
access records, such as medical opinions or
biological monitoring results, when required by
another rule
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Record Transfer and Disposal

• When an employer goes out of business
• All records are transferred to the new employer
• If no other employer continues the business,
  current and former employees may access the
  records, and the employer must notify DOSH of
  intent to dispose or transfer records to DOSH
  when required under rule

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Questions Answers

• Q. Is post vaccination hepatitis B antibody
  testing considered an exposure or a medical
  record?
• Medical record because it measures a
  physiological change.

Q. Would the inclusion of a job title in an
analysis that includes employee medical
information be a breach of confidentiality? A. It
could if there were a limited number of these
positions and the title could easily be used to
identify an employee or imply identification.
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Q A

• Q. May the employer keep an employees tuberculin
  skin test record in the personnel file?
• A. No, the skin test result is confidential
  medical information. The employer or employers
  representatives would not have access to this
  record with specific written authorization.

Q. Does posting the OSHA 300A form constitute a
breach of confidentiality? A. No, as it does not
contain personally identifiable medical
information. There are few conditions that must
be posted as privacy cases and identifiers
removed, e.g., tuberculosis and HIV infection
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Q A

• Q. What would be some reasons for DOSH to issue
  an Access Order?
• - To document employer knowledge, or
• - To document poor management of employees with
  evidence of adverse health effects, or
• - To verify compliance during follow-up
  inspections

Q. May an employee request exposure records of
similarly situated employees? A. Yes, in the
absence of personally relevant records the
employee may request records of other employees
who may have experienced similar exposures.
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Q A

• Q. Must employers maintain records of treatment
  of minor wounds as medical records?
• A. No, generally cleaning, flushing, or soaking
  wounds, and the application of wound coverings is
  considered first-aid.

Q. Must the employer maintain exposure records
including the identity of a hazardous
chemical? A. No, the identity may be retained
either as part of the exposure record or as a
separate record. Documentation of where and when
the substance was used must be included.
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Q A

• Q. Must employers retain medical records of short
  term employees (employed for less than a year)?
• A. No, not as long as they provide the records to
  the employee upon termination.

Q. Must employers provide employees or their
representatives with the exposure records of all
employees with similar exposures. A. Not
routinely, the rule only allows access to records
of similarly exposed employees when employee
personal records are inadequate.
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Q A

• Q. Does the employer have any protection against
  the unnecessary disclosure of trade secrets?
• A. Yes, the Trade Secret rule, chapter 296-816
  WAC provides these protections.

Q. Are unions considered employee
representatives? A. Yes, but only in regards to
access to exposure records. In order to access
exposure information unions must state which
records they want disclosed and the specific
occupational health need.
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Other Questions?
Please contact

• Pam Edwards
• DOSH Technical Services
• 360-902-6457
• edwp235_at_lni.wa.gov