Employee Medical and Exposure Records

1. Employee Medical and Exposure Records Keeping and providing access to medical and exposure records November, 2010

2. 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

3. 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

4. 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.

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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

11. 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

12. 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

13. 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.

14. 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.

15. 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

16. 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.

17. 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.

18. 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 employee’s health status.

19. 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.

20. 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

21. 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

22. 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

23. 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.

24. Q & A Q.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. 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

25. Q & A Q. What would be some reasons for DOSH to issue an Access Order? • - Todocument 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.

26. 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.

27. 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.

28. 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.

29. Other Questions? John Furman, PhD, MSN, CIC, COHN-S Occupational Nurse Consultant DOSH Technical Services 360-902-5666 furk235@lni.wa.gov Please contact: