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.

 

 

October 29, 1997

Richard J. DeLuca, MPH, CIH
Vice President
EMR
4360 Chamblee Dunwoody Road
Suite 202
Atlanta, Georgia 30341

Dear Mr. DeLuca:

This is in response to your inquiry regarding an inability to provide medical records in accordance with 29 CFR 1910.1020, Access to employee exposure and medical records.

You state in your letter that your client is subject to medical surveillance requirements under 29 CFR 1910.120 and various substance-specific standards. You also indicate that, with respect to the Occupational Safety and Health Administration (OSHA) requirements in 29 CFR 1910.1020 regarding recordkeeping for employee medical surveillance records, your client is able to provide historic "medical data and interpretive reports (including chest x-ray interpretations)," but has experienced difficulty in obtaining original chest x-rays taken prior to 1992 despite the following actions:

 

 

  • written correspondence was sent by the client to all known historical providers in an effort to obtain the original chest x-ray.
  •  
  • when providers fail to respond to the first inquiry, a second written inquiry is sent.
  •  
  • recognizing the difficulty in obtaining historic chest x-rays, the client engaged your company's services in 1992, in part to rectify the X-ray situation.

You list a number of questions related to your client's likely inability to produce pre-1992 X-rays. I will enumerate the questions and respond to them individually.

[Question 1:] What kind of enforcement action, if any, would OSHA take in the above circumstances?

[Reply:] OSHA requires that employers conduct a good faith, diligent search for employee medical records and that employers do all they can to assure employee access to these records.

OSHA does not intend, however, that the search for and provision of records be a "heroic" effort or one that is unusually disruptive to the employer's operation. If OSHA determines that the employer has demonstrated a good-faith effort to fulfill his or her responsibilities under 29 CFR 1910.1020 to obtain and provide access to employee medical records, then the employer would not be cited in violation of those requirements.

[Question 2:] What recommendations would OSHA suggest to further minimize compliance exposure potential?

[Reply:] Many medical services are performed through contractual arrangements rather than done in-house by persons employed exclusively by the employer. The contractual arrangements typically exist in written form. Under the records access standard, OSHA specifically requires that, where necessary, contractual arrangements be modified to assure that the access and preservation provisions of the rule are complied with. This includes clearly stating, for example, who maintains original X-rays and for how long of time.

if your client's current recordkeeping procedures support compliance with the requirements of 29 CFR 1910.1020 and if your client has made a diligent, good faith effort to rectify deficiencies in prior recordkeeping practices, OSHA would consider your client in compliance with the standard. You are correct in assuming that your client's ability to provide other pre-1992 medical data and X-ray interpretive reports supports their demonstration of compliance

[Question 3:] If the agency were to issue a citation, what classification would be anticipated? What monetary penalty, if any, would be applied?

[Reply:] It is not OSHA's policy to cite employers when a diligent, good-faith effort has been made. Please refer to the answers to questions 1. and 2. above.

for additional guidance about OSHA's citation and penalty procedures, you may want to consult OSHA's Field Inspection Reference Manual (FIRM). Chapter III C addresses types of violations and Chapter IV C discusses penalties issued by OSHA. The FIRM is available on the Internet at http://www.osha.gov/Firm_osha_toc/Firm_toc_by_sect.html.

I hope this information is useful to you. If you need further clarification of this letter, please contact [the Office of Health Enforcement (OHE)] at (202) 693-2190.

Sincerely,



John B. Miles, Jr., Director
Directorate of Compliance Programs

[Corrected 3/7/2006]