OSHA's Other Recordkeeping Standard: Access to Employee Exposure and Medical Records; If You Think This Standard Applies Only to Medical Charts, You Could Be in for a Very Rude Surprise

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When most people hear the phrase "OSHA recordkeeping," they think of the log of occupational illnesses and injuries required by 29 CFR104, but OSHA has another recordkeeping standard. It is not recordkeeping in the sense of collecting statistical data, but recordkeeping in the literal sense, retaining records, and the retention period is significant--at least 30 years.

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So what is this other recordkeeping regulation? It is "Access to Employee Exposure and Medical Records," 29 CFR1910.1020. It may be viewed as a companion standard to the hazard communication rule. While hazard communication requires that employees be informed of the hazards posed by chemicals to which they may be exposed and the precautions to take when working with those chemicals, "Access to Exposure and Medical Records" allows them to examine the results of monitoring that measured their level of exposure to those chemicals, and any medical records that might provide information about whether or not their health status was affected by their exposure. Unlike hazard communication, which addresses only chemical hazards, the access rule also includes exposure to biological hazards such as bacteria, viruses and fungi, and physical hazards such as radiation and vibration.

Many OSH practitioners are blissfully unaware of the obligation to retain certain records, such as the results of employee air sampling, for three decades. Three factors contribute to this ignorance. First, the standard's title is deceptive. While it clearly indicates that employees must be allowed to see certain records, there is no hint that records including the results of employee exposure monitoring such as air sampling or wipe tests for lead must be kept for what amounts to a working lifetime. The second factor contributing to the oversight is that many of the cognoscente often refer to the regulation by an abbreviated title, "access to medical records," leading the uninitiated to incorrectly infer that the regulation pertains primarily--or even exclusively--to medical records. Third, the regulation does not garner high-profile enforcement activity as other regulations that more obviously directly protect workers, such as confined spaces or trenching and excavating.

A word of caution about this last point--enforcement. Many years ago, violations related to maintaining the log of occupational illness and injuries were often viewed dismissively. That all changed when OSHA became more concerned about ergonomic hazards and started to cite certain meat packers for violations of the recordkeeping standard for failing to record injuries caused by repetitive motion. Moreover, in some situations, each case of failing to record an employee's injury counted as a separate violation. Consequently, the fines imposed by these violations were often substantial.

By analogy, OSHA may one day decide that each record that an employee was not allowed to access might count as a separate violation. Thus, a ream of denied documents could translate into 500 violations. Since failing to inform employees that they have a right to access certain documents is a violation, employers who have not informed their employees of this right could conceivably be cited for each employee they failed to inform or perhaps even for each releasable record in their file. Farfetched perhaps, but before OSHA took an active interest in ergonomics, $100,000 citations for failing to log an occupational illness or injury were unheard of.

What is a Record?

As Lewis Carroll once wrote, the best place to begin is at the beginning. In that light, the standard defines a record as "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)." The standard further differentiates between exposure records and medical records:

Medical record. …