August 1, 2002

George F. Gramling, III
Frank & Gramling
601 North Ashley Drive, Suite 600
P.O. Box 1991
Tampa, FL 33601-1981

Dear Mr. Gramling:

Thank you for your November 30, 1999 letter to Mr. Lawrence Falck in the Occupational Safety and Health Administration's (OSHA's) Tampa Area Office. Your letter has been referred to this office for an answer to your questions regarding OSHA's Access to employee exposure and medical records standard, 29 CFR 1910.1020. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question or scenario not delineated within your original correspondence. You had specific questions regarding whether certain indoor air quality documents and reports are "employee exposure records" under the standard. Your scenarios describing the documents and your four paraphrased questions related to those documents are listed below, along with our responses. Please accept our apologies for the delay in this response.

Scenario: The type of document at issue is a written evaluation of the quality of air and aesthetic aspects inside a building housing employees. The documents contain conclusions based on the results of monitoring of indoor air quality parameters including carbon dioxide levels, temperature, relative humidity, and particulate concentrations. If there is evidence of microbial contamination, grab or swipe samples are also taken. The documents contain synopses of the consultant's (A) walk-through inspection and heating, ventilation, and air-conditioning evaluation; (B) indoor air quality area sampling results; and (C) recommendations for action to ensure and maintain desired levels of indoor air quality. Some of the documents contain interviews with select employees, samplings of indoor air quality collected by sampling pumps worn by an employee, or the results of environmental quality health questionnaires completed by employees.

Question 1: Is the title of a document relevant in determining whether it is an "employee exposure record" as defined in §1910.1020(c)(5)?

Response: To be considered an employee exposure record under the standard, the record must meet the definition provided by (c)(5). Furthermore, the content of a record determines if it is an employee exposure record, not the title of the document. For example, the definition provided by 1910.1020(c)(5) includes "material safety data sheets indicating that the material may pose a hazard to human health." A material safety data sheet (MSDS) indicating no hazard to human health would not be considered an employee exposure record.

Question 2: Is the document described above (or any part thereof) an employee exposure record? What specific characteristics of the document defined above are determinative of the finding that the document is or is not an employee exposure record?

Response: 29 CFR 1910.1020 was promulgated to improve the ability of employees and their representatives to detect, treat, and prevent occupational diseases, especially those associated with non-regulated substances. The standard does not mandate the creation of new records or reports, nor does it impose any obligation to monitor or measure employee exposures. The standard does, however, provide that, when employee exposure records are created, they must be preserved.

It appears that some parts of the document you describe are, indeed, exposure records. Below we have restated each item you list in your letter and offered our comments. You must keep in mind that we cannot offer a definitive decision without actually viewing the contents of each item. As we stated above, the content of the document, not its title, determines whether it is an employee exposure record under our standard. In addition, if an employee is not exposed to a hazardous substance or physical agent, the standard does not apply.

Carbon dioxide levels: The carbon dioxide monitoring results, as well as other background data provided by 1910.1020(c)(5)(i), are employee exposure records under the standard. CO₂ is an OSHA regulated air contaminant under 1910.1000, Air contaminants.

Temperature and relative humidity measurements: These records may be employee exposure records under the standard. As stated in the Preamble (45 FR 35265), "...basic chemical manufacturing processes and abnormal exposures to heat, noise, and vibration are covered by the rule, but typical office working conditions are not." Therefore, if the temperature and humidity measurements are abnormal, i.e., not typical office working conditions, they must be considered employee exposure records.

Particulates: Total particulate samples are often taken as part of indoor air quality (IAQ) assessments. Records indicating total particulate exposures would be employee exposure records under 1910.1020 since there is evidence of human health hazards associated with exposures to high levels of total particulates. As you may know, the OSHA PEL is 15 mg/m³ (milligrams per cubic meter) for total dust and 5 mg/m³ for respirable dust. If the samples are for specific particulates, however, our response would be based on whether the particulates meet the definition of a "toxic substance or harmful physical agent" in 1910.1020(c)(13). If so, the sampling results, as well as other background data provided by 1910.1020(c)(5)(i), are employee exposure records under the standard.

Grab or swipe samples for microbial contamination: Again, if the biological agent(s) meets the definition of a "toxic substance or harmful physical agent," the sampling results are employee exposure records. Typically, in IAQ investigations, initial samples are taken for both air and surface contamination. These samples are then tested to determine the existence of bacteria and fungi. In many cases, the tests indicate the bacteria or fungi contamination is non-toxic, is typical of office/work environments, and reflects background levels of contamination. These records would not be employee exposure records under 1910.1020. On the other hand, if test results [lead an investigator to conclude that indoor microbial levels are hazardous and employees may have been exposed] show the existence of a toxic bacteria, such as Stachybotrys charatum, [then] the records would be employee exposure records [under 1910.1020] because of the known health hazards associated with the bacteria.

Consultants' synopses: Of the items you list, only the indoor air quality area sampling results are likely to be employee exposure records under 1910.1020. These results may include exposure measurements of CO₂, temperature and humidity, particulates, and, possibly, biological contamination. As discussed above, these sampling results are likely employee exposure records since they characterize employee exposures to known health hazards.

The synopses of walk-through inspections of heating, ventilation, and air-conditioning systems are not employee exposure records since they do not characterize employee exposure. If, however, these synopses contain information concerning results of sampling performed during the walkthrough, those sampling results may be employee exposure records, provided this monitoring characterizes employee exposures to a toxic substance or harmful physical agent.

Recommendations for abatement and maintenance to ensure desired levels of IAQ are not employee exposure records. These recommendations do not characterize employee exposures and are not covered by 1910.1020.

Employee interviews and questionnaires completed by workers: These records are not employee exposure records under 1910.1020. These records do not characterize employee exposures and do not meet the definition of an employee exposure record provided by 1910.1020(c)(5). Employee questionnaires that address medical conditions, however, may be employee medical records under 1910.1020(c)(6).

Samples of IAQ collected by sampling pumps worn by an employee: These results are employee exposure records. If, for example, the sampling was for CO₂ or total particulates, the rationale provided for those contaminants above would apply.

Please note that employee exposure records indicating exposure below an applicable OSHA action level or PEL are part of the employee exposure record as defined in 29 CFR 1910.1020(c)(5) and must be preserved and maintained in accordance with 1910.1020(d)(1)(ii) unless preempted by specific maintenance provisions in the standard establishing the action level or PEL. On the other hand, OSHA does not intend for 1910.1020 to cover situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations. The Preamble to the Final Rule clarifies:

For example, basic chemical manufacturing processes and abnormal exposures to heat, noise, and vibration are covered by the rule, but typical office working conditions are not. The applicability of the standard does not, however, depend on any showing that the level of actual exposure to a toxic substance or harmful physical agent is particularly excessive, but rather on the unique fact of occupational exposure. (45 FR 35265)

Furthermore, as also stated in the Preamble to the Final Rule,

...not all employee exposure records must be maintained for at least thirty years. Exposure records describe the identity of, and possibly the level of exposure to, a toxic substance or harmful physical agent. These two elements – identity and level of exposure – are the critical data which must be preserved for at least thirty years. (45 FR 35270)

Question 3: Does a work product exception to the Records Access Rule, such as the exception codified in 29 CFR §1910.1020(c)(6)(ii) for employee medical records, exist for employee exposure records?

Response: The applicability of the work product doctrine to employee exposure records is addressed in Martin v. Bally's Park Place Hotel & Casino, 983 F.2d 1252 (3d Cir. 1993). In that case, the court concluded that employee exposure records that qualify as attorney work product need not be turned over to OSHA under the Records Access Rule.

You may wish to review the Occupational Safety and Health Review Commission (OSHRC) Decision (OSHRC Docket No. 87-1849) relating to the work product rule's applicability to employee exposure records. This decision is available on OSHA's web site at [http://www.oshrc.gov/decisions/html_1991/87-1849_88-0337.html].

Question 4: If "work product" employee exposure records are not exempt from the Records Access Rule, what are the distinctions between an employee medical record and employee exposure record that justify the disparate application of the work product doctrine?

Response: The attorney work product rule may apply to employee exposure records. See our answer to the question above.

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

Sincerely,



Richard E. Fairfax, Director
[Directorate of Enforcement Programs]

[Corrected 4/10/08]