OSHA Instruction CPL 2-2.30 November 14, 1980 Office of Compliance Programming

Subject: 29 CFR 1913.10(b)(6), Authorization of Review of Medical Opinions

A. Purpose. This instruction authorizes appropriately qualities OSHA personnel to conduct reviews of medical opinions mandated by specific occupational safety and health standards where there is a need to gain access for enforcement purposes.

B. Scope. This instruction applies OSHA-wide.

C. Action. OSHA Regional Administrators and Area Directors shall assure that:

1. This authorization to review specific medical information is administered and implemented according to F., G, H., I. and J. of this instruction.

2. The personally identifiable employee medical information to be examined or copied is limited to only that information needed far enforcement purposes, and is handled with appropriate discretion and care.

D. Federal program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this change is forwarded to each State designee.

2. Explain the technical content of the change to the State designee as requested.

3. Ensure that State designees are asked to acknowledge receipt of this Federal program change in writing, within 30 days of notification, to the Regional Administrator. This acknowledgment should include a description either of the State's plan to implement the change or the reasons why the change should not apply to that state.

OSHA INSTRUCTION CPL 2-2.30 NOVEMBER 14 1980 OFFICE OF COMPLIANCE PROGRAMMING

4. Review Policies, instructions, and guidelines issued by the State to determine that this change has been communicated to State program Personnel. Routine monitoring activities (accompanied inspections and case file reviews) shall also be used to determine if this change has been implemented in actual performance.

E. Background

1. OSHA compliance personnel have unlimited access to conduct an examination of medical opinions that are mandated by specific Occupational Safety and Health Standards, solely in order to verify employer compliance with recordkeeping requirements (i.e., to determine that the medical opinions exist). See 29 CFR 1910.20(c)(3) and 29 CFR 1913.10 (b) (4).

2. There may, however, be compliance needs for reviewing the content of--and, if appropriate, copying --the medical opinions mandated by standards. For example, access to medical opinions could serve to determine whether an employer failed to take necessary corrective action recommended by a Physician. Other potential needs to gain access to such medical opinions are illustrated in H of this instruction.

3. 29 CFR 1913.10(b)(6) excluded from the rules of agency practice and Procedure concerning OSHA access to employee medical records situations "where a written directive by the Assistant Secretary authorizes appropriately qualified Personnel to conduct limited reviews of specific medical information mandated by an occupational safety and health standard, or of specific biological monitoring test results"

4. Thus, this instruction authorizes appropriately qualified field personnel to conduct reviews of medical opinions mandated by the specific standards set forth in F. of this instruction where there is a need to gain access for enforcement purposes.

OSHA INSTRUCTION CPL 2-2.30 NOVEMBER 14 1980 OFFICE OF COMPLIANCE PROGRAMMING

F. Specific Medical Information. This instruction authorizes the examination of the Content of and, if appropriate, copying of physician-written medical opinions mandated by the following standards:

1. Respiratory Protection, 29 CFR 1910.134(b)(10).

2. Vinyl Chloride, 29 CFR 1910.1017(k)(4).

3. Inorganic Arsenic, 29 CFR 1910.1018(n)(6) (i).

4 Lead, 29 CFR 1910.1025(j)(3)(v) and (k)(1)(ii).

5. Coke Oven Emissions, 29 CFR 1910. 1029(j)(5).

6. Cotton Dust, 29 CFR 1910.1043(h)(s)

7. 1, 2-Dibromo-3-chloropropane (DBCP), 29 CFR 1910.1044 (m)(5).

8. Acrylonitrile, 29 CFR 1910.1045(n)(6)

9 Cotton Dust in Cotton Gins, 29 CFR 1910.1046 (e)(6).

NOTE: The "medical opinion" is that information the employer is required to obtain pursuant to the specific provisions cited above for these standards.

G. Qualified Compliance Personnel. Review of the content of any medical information obtained or maintained pursuant to the standards named in F. of this instruction, which is in personally identifiable form, shall be limited to OSHA field-qualified industrial hygienists or Professionals with training in medical disciplines.

H. Statutory Purpose and Need to Gain Access.

1. The Purpose of obtaining access to this medical information is to assure safe and healthful working conditions for working men and women by providing an effective enforcement program for OSHA standards and the Occupational Safety and Health Act.

OSHA INSTRUCTION CPL 2-2.30 NOVEMBER 14 1980 OFFICE OF COMPLIANCE PROGRAMMING

2. The need to gain such access in specific circumstances could be indicated by the following considerations:

a. Access to medical opinions could serve to determine whether an employer failed to take necessary corrective action recommended by a physical, such as medical removal or respiratory protection; or to inform employees of the recommended action required by the standards.

b. Review of the content of employee medical opinions could be relevant to the type of enforcement action OSHA may initiate against an employer, or can serve as proof of the appropriateness of an enforcement action.

c. Medical opinions could be highly relevant to imminent danger situations Medical opinions could demonstrate that a Particular employee, in light of that employee's current health Status, faces an imminent danger of morbidity or death from present Working conditions.

d. Access to medical opinions may be necessary to identify problem areas for physicians or other qualified OSHA Personnel to review

I. Limitations

1. Before obtaining access to the medical information described in F. of this instruction, it must be determined that there is a need to gain access for OSHA enforcement purposes. Access to this medical information for purposes other than for the limited enforcement needs illustrated in G. of this instruction will require a written access order (29 CFR 1913.10(d)) Unless:

a. Specific written consent of an employee is obtained pursuant to 29 CFR 1910.20 (e)(2)(ii), and the agency or an agency employee is listed on the authorization as the designated representative to receive the medical information.

OSHA INSTRUCTION CPL 2-2.30 NOVEMBER 14 1980 OFFICE OF COMPLIANCE PROGRAMMING

b. An OSHA staff or contract physician consults with an employer's physician pursuant to 29 CFR 1913.10(d)(4)(ii)

2. Access to this medical information shall, if practicable, involve on-site review. A minimum of personally identifiable information shall be recorded for enforcement purposes and taken off-site.

J. Security Procedures. Whenever personally identifiable employee medical Information is obtained pursuant to this instruction and taken off-site, the Area Director shall:

1. Promptly name a Principal OSHA Investigator to assure protection of this information.

2. Assure that the personally identifiable medical information obtained shall thereafter be subject to the use and security requirements of 29 CFR 1913.10(h)-(m).

Eula Bingham Assistant Secretary Occupational Safety and Health

DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors