March 27, 2002

Ms. Kim Murphy
6 Mountain View Drive
Jim Thorpe, Pennsylvania 18229

Dear Ms. Murphy:

Thank you for your letter we received on February 11, 2002 to the Occupational Safety and Health Administration's (OSHA's) Directorate of Compliance Programs (DCP). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question or situation not delineated within your original correspondence. You had specific questions regarding access to exposure records under 29 CFR 1910.1020, the Access to employee exposure and medical records standard. Your questions and statement are paraphrased below, followed by our replies.

Statement: 29 CFR 1910.1020 requires that if an employer cannot provide access to exposure records within 15 days from the employee's request then the employer must apprise the employee for the reason for the delay and the earliest day when the record can be made available.

Question 1: Does the 15 day period start when the request is mailed or when the employer receives the request?

Reply: The 15 day period begins when the employer receives the request.

Question 2: If the request is mailed first class and the employee has a proof of mailing form (US Postal Service form 3817) when does the 15 day period begins?

Reply: The 15 day begins when the employer receives the request. A return receipt signed by the employer would indicate the date of receipt.

Question 3: If an employee requests copies of exposure records from other offices in other states or locations, would the other OSHA offices have jurisdiction for a complaint pursuant to 29 CFR 1910.1020?

Reply: No. The other OSHA offices would have jurisdiction for complaints only if the complaints affected employees working at a facility within their territory.

Question 4: If a request was sent to two offices located in different states, and neither provided access to the employees, would each office be in violation for not providing the requested records?

Reply: No. The employer located within the state in which the exposure occurred would be in violation of the standard.

Question 5: If an employee sent a request to the employer's Corporate Headquarters located in New York, and the employee works and lives near the Pennsylvania office, which office would be in violation of 29 CFR 1910.1020 for not providing the exposure records?

Reply: If the employee works at the Pennsylvania site and the exposure occurred at this site, then the Pennsylvania site would be in violation of 29 CFR 1910.1020.

Question 6: What are OSHA's inspection procedures and policy regarding employee complaints filed pursuant to 29 CFR 1910.1020?

Reply: OSHA's inspection procedures can be found at www.osha.gov. Also, enclosed is a copy of OSHA's inspection procedures booklet.

Question 7: Is OSHA required to make a determination as to which records are covered, if so, which regulation dictates this?

Reply: 29 CFR 1910.1020 Access to employee exposure and medical records, defines the medical and exposure records covered.

Question 8: If the employer provided some exposure records and the employee suspected there were others, would OSHA make a determination as to which records the employee had not been provided?

Reply: During an onsite inspection which could result from the worker filing a complaint with OSHA on this issue, OSHA would have to determine which records the employer was required to keep. If the employee requested any of those records and they were not provided, the employer would be in violation of 29 CFR 1910.1020.

Question 9: 29 CFR 1910.1020(g)(1)(iii) uses the term “each employee” in describing whom the employer must advise annually, and upon initial employment, of the existence of exposure records. Does this mean that for each employee not advised the employer would receive a violation?

Reply: Generally, the employer would receive one citation with each employee listed as one instance of a violation.

Question 10: If the employer doesn¿t advise 10 employees of the existence of exposure records pursuant to 29 CFR 1910.1020(g), would the employer receive ten violations or just one?

Reply: Please see the answer to Question 9.

Question 11: 29 CFR 1910.1020(g)(1) requires the employer to make this information available at least annually to its employees. Does this mean that if the employer failed to provide this information for the past five years, the employer would receive five separate violations.

Reply: No, the employer would receive one citation if the above condition was documented during an OSHA inspection. Citations can only be issued for a violation which occurred within six months of issuance.

Question 12: If, during an investigation, OSHA found an employer who did not make this information available to employees for the past five years, would OSHA issue five violations or does OSHA have the discretion to issue one violation. Where in OSHA's regulations does it define what constitutes a separate violation?

Reply: Please see answer to question 11. OSHA's Instruction CPL 2.103, The OSHA Field Inspection Response Manual section C.5(a) states, “violations of a single standard having the same classification found during the inspection of an establishment or worksite generally shall be combined into one alleged citation item.”

Question 13: If an employer samples the building's air and finds that it is inadequate, how long does the employer have to retain the actual air sample?

Reply: 29 CFR 1910.1020 does not require an employer to retain the actual sample. However, the air monitoring results must be kept for at least thirty (30) years.

Question 14: If an employer finds a building's air quality inadequate and the employer improves the ventilation system, are the system's maintenance records considered exposure records?

Reply: No. 29 CFR 1910.1020(c)(5)(i) defines employee exposure records as “...monitoring or measuring of a toxic substance or harmful physical agent, including personal, area, grab, wipe, or other form of sampling....”

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statue, 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 http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Compliance Assistance at (202) 693-2190.

Sincerely,



Richard E. Fairfax, Director
Directorate of Compliance Programs