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Employee Medical and Exposure Records

Chapter 296-802 WAC

Employer Responsibilities

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You Will Learn How To• Identify the scope and purpose of the rule• Identify the specific retention periods and

requirements for medical and exposure records, and analysis

• Understand the process for accessing identifiable medical information

• Gain experience in applying the rule

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Rule Scope

This chapter 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.

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Rule Scope

All employee medical and exposure records are included, whether or not they are required by specific WISHA rules

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Rule PurposeThe rule fulfills 3 primary purposes:

1. Requires retention of medical and exposure records related to employees exposure to toxic substances or harmful physical agents.

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Rule Purpose

2. Ensures access to records by affected employees, designated representatives, and WISHA.

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Rule Purpose

3. Ensures 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 RulesThe 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… 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

• WAC 296-800-170, Chemical hazard Communication, 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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Important• 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.

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Medical Records

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, e.g. the Inorganic 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.

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Exposure Records

• All monitoring background data does not need to be 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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Inform Employees• 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 formal training is not necessary

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Employee Access• The requirements of this chapter apply to

both current and former employees.• Provide employees, or their

representatives, access to their records upon request:– In a reasonable time, place manner– Within15 working days of the request– Provide a copy at no–cost. A nominal charge

may be applied for additional copies.

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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.

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Employee Access

• 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• 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 employee’s health status.

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Employee Access

• 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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WISHA Access

• WISHA may issue an access order when it is necessary to obtain identifiable employee medical information.

• The rule specifies the contents of an Access Order.

• Contact the Industrial Hygiene Program Manager to obtain an Access Order.

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WISHA Access

• 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 employees may access the records and the employer must notify WISHA of intent to dispose or transfer records to WISHA when required under rule

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Review

The following slides provide questions and answers regarding application of the rule

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Q & A

Q. Is a cholinesterase test result considered an exposure or a medical record?

A. Medical record because it measures a physical effect of exposure

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Q & AQ. 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 & AQ. May the employer keep an employee’s

tuberculin skin test record in the personnel file?

A. No, the skin test result is confidential medical information. The employer or employer’s representatives would not have access to this record with specific written authorization.

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Q & AQ. 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 & AQ. What would be some reasons to issue

an Access Order?

A.- Document employer knowledge - Document poor management of

employees with evidence of adverse health effects

- Verify compliance during follow-up inspections

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Q & AQ. 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 & AQ.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.

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Q & AQ. Must the employer maintain exposure

records including the identity of a hazardous chemical?

A. No, the 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 & AQ. 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.

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Q & AQ. 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 & AQ. 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.

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Q & AQ. 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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John Furman, PhD, MSN, CIC, COHN-SOccupational Nurse Consultant

WISHA Policy & Technical Services360-902-5666

furk235@lni.wa.gov

FOR QUESTIONS, PLEASE CONTACT:

For more safety and health information, please visit the WISHA website,

http://www.lni.wa.gov/