OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

December 1, 1980

MEMORANDUM FOR:   ALL REGIONAL ADMINISTRATORS

THRU:             JOHN B. MILES
                  Director
                  Office of Field Coordination

FROM:             BRUCE HILLENBRAND
                  Acting Director Federal Compliance and
                  State Programs

SUBJECT:          29 CFR 1910.1020(e)(2) Complaint Processing Procedures

This is in response to requests from Regional Offices for a clarification of the procedures for handling complaints submitted by former employees for alleged violations of 29 CFR 1910.1020(e)(2).

The needs of former employees for access to exposure and medical records relevant to their current or future health status are as compelling as the needs of current employees. Thus, 29 CFR 1910.1020 makes no distinction between former and current employees. Accordingly, for the purposes of processing complaints of alleged violations of 29 CFR 1910.1020(e)(2), no distinction shall be made between complaints submitted by former and current employees.

The complaint processing procedures outlined in OSHA Instruction CPL 2.45 shall be followed, except for the following modified definition of "employee." For the purposes of submitting a complaint for an alleged violation of 29 CFR 1910.1020(e)(2), "employee" means either a present or former employee of the employer about whose establishment the complaint is being made.

There must be effective screening and evaluation when determining whether complaints of alleged violations of 29 CFR 1910.1020(e)(2) satisfy the "formal complaint" criteria set forth in B.2. of OSHA Instruction CPL 2.45. In addition to the pertinent information outlined in paragraph E. of that instruction, the following information should be obtained from complainants whenever possible:

1. An explanation of what attempt was made by the employee to obtain his/her records.

2. An explanation of why the employer allegedly denied employee access to his/her records.

NOTE: These explanations should include any appropriate documentation, e.g., copies of any written correspondence between the employee and the employer.

The final directive on inspection and compliance procedures for implementing 29 CFR 1910.1020 will incorporate this clarification. In addition, OSHA Instruction CPL 2.45 will be amended accordingly in the near future.

In order to expeditiously communicate this information, we are requesting that you copy this memorandum and distribute it to the Area Directors and State designees within your Region.