October 14, 1999

Mr. Jerry Gillooly
Safety Director
Bohl Equipment Company
534 Laskey Road
Toledo, OH 43612

Dear Mr. Gillooly:

Thank you for your November 19, 1997 letter regarding the applicability of 29 CFR 1910.1020 (formerly 1910.20), Access to employee exposure and medical records, to results of employee drug testing. I apologize for the delay in our response.

In your letter, you reference a February 6, 1990 memo to Gilbert Saulter, Regional Administrator, from the Occupational Safety and Health Administration's (OSHA's) Directorate of Compliance Programs (DCP), and a May 7, 1985 letter from the OSHA Directorate of Field Operations to Pennzoil Company, which you believe offer conflicting information regarding an employee's right to access the results of drug testing conducted by the employer. You then pose several questions to clarify OSHA's requirements on this point. To respond to your letter, we will address your specific questions, then discuss the information in the earlier OSHA documents.

Question 1:

Do employees have a right of access to their own positive or negative drug test results? Please explain the agency's rationale for its position.

Answer:

OSHA's Access to employee exposure and medical records standard is triggered if an employee is exposed to a toxic substance or harmful physical agent in his or her workplace. The standard requires that exposure and medical records of "exposed" employees [definition in paragraph (c)(8)] must be preserved and retained in accordance with paragraph (d). These records must also be made available to employees and their designated representatives in accordance with paragraph (e).

If an employer must maintain employee medical and exposure records under the standard, then the employee has access to his or her entire medical record and relevant exposure records. This would include drug test results and any other non-occupational medical records that the employer chooses to maintain as part of the employee's medical record. If, however, an employee has not been exposed to a toxic substance or harmful physical agent in the workplace and records are not subsequently required to be maintained under §1910.1020, then the access requirements of paragraph (e) do not apply.

The access requirements of paragraph (e) also do not apply when an employer maintains records from voluntary employee assistance programs (EAPs) separately from the medical program and records. Paragraph 1910.1020(c)(ii)(D) excludes such records from the definition of an employee medical record.

In the preamble to the Access to employee exposure and medical records standard, published in 1980, OSHA discussed the rational for excluding employee assistance program information from employee medical records. For a full discussion, you may want to review the entire preamble. The following excerpt explains the agency's position on this issue: (45 FR 35265):

On the basis of the foregoing [testimony], OSHA decided that records pertaining to voluntary employee assistance programs are apt to have limited significance to occupational health matters when these programs are structured and operated outside the context of the employer's medical program. Application of this standard to these voluntary assistance programs would likely yield little benefits though imposing unnecessary burdens on employers. Accordingly, the final rule exempts the records of these programs from the definition of 'employee medical record,' but only to the extent that the records of these programs are maintained apart from he employer's overall medical program and its records. Where, however, these assistance programs are part of the employer's overall medical program and its records, they should be subject to this standard. Similarly, information on substance abuse and behavioral disorder recorded as a part of a medical history or medical examination is covered by this rule.

Question 2:

If drug testing is mandatory but employees who test positive are referred to by a voluntary employee assistance program (EAP), are the test results exempted by the exclusion at §1910.1020(c)(6)(ii)(D) when we transfer the record from the employee's medical file to the EAP file? What about negative results that are not transferred to the EAP?

Answer:

Again, if an employer falls within the scope of §1910.1020, and drug testing results are maintained as part of the employer's medical program and records, then employees covered by the standard must have access to their records in accordance with §1910.1020(e). Thus, the negative results that remain in the employee's medical record may be accessed by the employee. For those records maintained separately from the employer's medical program and its records, the requirements of §1910.1020 do not apply.

Question 3:

Do employees have a right of access to medical records in their EAP file?

Answer:

The requirements of §1910.1020 do not apply to voluntary EAP records if maintained separately from the employer's medical program and records.

Question 4:

Do employee designated representatives have a right of access to analyses of the results of employee drug testing where they have not been authorized by an individual employee, but where the size or nature of the tested population would tend to reveal the identity of a tested individual?

Answer:

No, employee designated representatives do not have a right of access to analyses using exposure or medical records where specific employees may be identified. Paragraph (e)(2)(iii)(B) requires that if any analysis reports the contents of employee medical records by either direct identifier or by information which could reasonably be used to identify specific employees, the employer must ensure that personal identifiers are removed before access is provided. If the employer can demonstrate that removal of personal identifiers is infeasible, the access to the personally identifiable portions of the analysis need not be provided to employees or their designated representatives.

With regard to the 1990 memorandum to Gilbert Saulter, the information offered in that memorandum is consistent with the above responses. The 1985 letter to Pennzoil Company, however, is incorrect in stating that "Such [drug testing] records fall outside the standard's definition of employee exposure or medical records" and is hereby rescinded. As explained above, the definition of "employee medical record" provided in paragraph(c)(6) does not exclude drug testing, except for those records concerning voluntary employee assistance programs maintained separately from the employer's medical program and records. If an employer elects to maintain drug testing results as part of the employer's medical program, then drug testing results would be considered a medical record under §1910.1020.

I hope this provides the clarification you were seeking. Thank you for your comments. We apologize for any confusion the earlier documents may have caused. As this letter demonstrates, OSHA's reexamination of an issue may result in the clarification or correction of previously stated enforcement guidance. To verify in the future that the information we have provided you remains current, you may consult OSHA's website at http://www.osha.gov or contact us directly at (202) 693-2190.

Sincerely,

Richard E. Fairfax, Director
Directorate of Compliance Programs