69: What are Employee Medical & Exposure Records?

OSHA Exposure Records

OSHA requires that employees who are or may be exposed to toxic substances or harmful physical agents be given access to their medical and exposure records. Further, OSHA requires that such records be maintained for a long period of time because often the symptoms of the illnesses that come from the exposure don’t appear until many years later.

OSHA’s requirement to maintain medical and exposure records applies to all employers who have employees exposed to toxic substances or harmful physical agents, such as heat, cold, radiation, repetitive motion, biological, chemical, etc.

Terms you need to know

Access: means the right and opportunity to examine and copy.

Designated representative: means any individual or organization to whom an employee gives written authorization to exercise a right of access. For the purposes of access to employee exposure records and analyses using exposure or medical records, a recognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization.

: means a current employee, a former employee, or an employee being assigned or transferred to work where there will be exposed to toxic substances or harmful physical agents. In the case of a deceased or legally incapacitated employee, the employee’s legal representative may directly exercise all the employee’s rights pertaining to this OSHA requirement.

Employee exposure record: means a record containing any of the following kinds of information:
  • Environmental (workplace) monitoring or measuring of a toxic substance or harmful physical agent, including personal, area, grab, wipe, or other forms of sampling, as well as related collection and analytical methodologies, calculations, and other background data relevant to the interpretation of the results obtained;
  • Biological monitoring results which directly assess the absorption of a toxic substance or harmful physical agent by body systems (e.g., the level of a chemical in the blood, urine, breath, hair, fingernails, etc.) but not including results which assess the biological effect of a substance or agent or which assess an employee’s use of alcohol or drugs;
  • Safety data sheets indicating that the material may pose a hazard to human health; or
  • In the absence of the above, a chemical inventory or any other record which reveals where and when used and the identity (e.g., chemical, common, or trade name) of a toxic substance or harmful physical agent.

Employee medical record: means a record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician, including:

  • Medical and employment questionnaires or histories (including job description and occupational exposures),
  • The results of medical examinations (pre-employment, pre-assignment, periodic, or episodic) and laboratory tests (including chest and other X-ray examinations taken for the purpose of establishing a base-line or detecting occupational illnesses and all biological monitoring not defined as an “employee exposure record”),
  • Medical opinions, diagnoses, progress notes, and recommendations,
  • First-aid records,
  • Descriptions of treatments and prescriptions, and
  • Employee medical complaints.
    • Note: “Employee medical record” does not include medical information in the form of: (1) Physical specimens (e.g., blood or urine samples) which are routinely discarded as a part of normal medical practice; (2) Records concerning health insurance claims if maintained separately from the employer’s medical program and its records, and not accessible to the employer by employee name or other direct personal identifier (e.g., social security number, payroll number, etc.); (3) Records created solely in preparation for litigation which are privileged from discovery under the applicable rules of procedure or evidence; or (4) Records concerning voluntary employee assistance programs (alcohol, drug abuse, or personal counseling programs) if maintained separately from the employer’s medical program and its records.

Exposure or exposed: means that an employee is subjected to a toxic substance or harmful physical agent in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.), and includes past exposure and potential (e.g., accidental or possible) exposure, but does not include situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations.

Record: means any item, collection, or grouping of information regardless of the form or process by which it is maintained (e.g., paper document, microfiche, microfilm, X-ray film, or automated data processing).

Toxic substance or harmful physical agent: means any chemical substance, biological agent (bacteria, virus, fungus, etc.), or physical stress (noise, heat, cold, vibration, repetitive motion, ionizing and non-ionizing radiation, hypo- or hyperbaric pressure, etc.) which:

  • Is listed in the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS); or
  • Has yielded positive evidence of an acute or chronic health hazard in testing conducted by, or known to, the employer; or
  • Is the subject of a safety data sheet kept by or known to the employer indicating that the material may pose a hazard to human health.

Overview of what is required

  • Assess the workplace for any toxic substance or harmful physical agent exposures that may generate medical or exposure records.
  • Keep employee medical records for at least the duration of employment plus 30 years.
  • Keep employee exposure records for at least 30 years.
  • Provide access to employees of their medical and exposure records.
  • Inform employees annually of the existence and location of medical and exposure records and the process and rights for accessing them.

When removing obsolete chemicals from the facility, does the removal date need to be documented? If yes, what is the proper procedure to do that?

For the purposes of 29 CFR 1910.1200(e) whenever a hazardous chemical in the workplace are obsoleted, the employer must:

  • Update the hazardous chemical inventory list, which is part of the written Hazard Communication Program; and
  • Update the Hazard Communication Program as necessary.

The employer should also remove the safety data sheet (SDS) for the obsoleted chemical from its employee SDS stations.

For the purposes of a different regulation, 29 CFR 1910.1020(d), an employer must preserve and maintain employee exposure records for 30 years. SDSs indicating that the material may pose a hazard to human health are considered employee exposure records. In the absence of SDSs, a chemical inventory or any other record which reveals where and when a toxic substance or harmful physical agent was used and its identity is also an employee exposure record. SDSs must be kept for those chemicals currently in use that is affected by §1910.1200(g).

However, once a hazardous chemical in the workplace is obsoleted, the employer has the choice of preserving and maintaining for 30 more years:

  • The obsolete SDS, or
  • A record concerning the identity of the hazardous chemical, where it was used, and when it was used.

While OSHA does not “specifically” require the employer to document the removal date, it may be helpful to record that date so that an employer knows when the obsolete SDS may be disposed of after 30 years, if that option is taken. If the employer chooses to record the chemical identity and where and when the chemical was used, the employer will indirectly document the removal date because it will be included in the timeframe the chemical was used.

Note that if an employer just keeps the SDS without the other information, the SDSs don’t really meet the original “intent” of §1910.1020. That’s why OSHA “recommends” that if you opt to keep SDSs you also include them when and where information, even though it is not mandated when the SDS option is taken.

What is the liability for transferring/maintaining medical records when there is no successor employer?

The Code for Federal Regulations, 29 CFR 1910.1020, Access to Employee Exposure and Medical Records outlines the correct process of managing employee records. According to that regulation, whenever an employer either is ceasing to do business and there is no successor employer to receive and maintain the records or intends to dispose of any records required to be preserved for at least thirty (30) years, the employer shall do one of two things. An employer must transfer the records to the Director of the National Institute for Occupational Safety and Health (NIOSH) or they must notify the Director of NIOSH in writing of the impending disposal of records at least three (3) months prior to the disposal of the records. Depending on the content of the OSHA records, you may wish to share the information in them with the specific employee to whom they belong before transfer or disposal.

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