February 2, 2018

Mr. Peter Lawton
LeadSMART Training Solutions, Inc.
21 Main Street
South Berwick, Maine 03908

Dear Mr. Lawton:

Thank you for your October 6, 2017, letter to the Occupational Safety and Health Administration (OSHA). Your letter was referred to OSHA’s Directorate of Enforcement Programs for a response. You state that you have a question related to compliance with the medical surveillance requirements in OSHA’s new Respirable Crystalline Silica standard, 29 CFR 1926.1153. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. Your paraphrased question and our response are below.

Background: In your letter, you explain that you are an authorized outreach trainer who has been questioned by several clients on whether the medical surveillance requirements in 29 CFR 1926.1153 dictate that the employer make medical surveillance available to an employee exposed to silica, without making it mandatory that the employee cooperate by undergoing the required medical evaluations/examinations. You refer to the following paragraphs:

29 CFR 1926.1153(h)(1)(i), Medical Surveillance, General: The employer shall make medical surveillance available at no cost to the employee, and at a reasonable time and place, for each employee who will be required under this section to use a respirator for 30 or more days per year.

29 CFR 1926.1153(h)(2), Medical Surveillance, General (states in part): Initial examination. The employer shall make available an initial (baseline) medical examination within 30 days after initial assignment, unless the employee has received a medical examination that meets the requirements of this section within the last three years.

Question: Has an employer met its legal obligation by offering medical surveillance, as required by 29 CFR 1926.1153(h)(1)(i) and (h)(2), if the employee refuses the medical tests and examinations, because the standard does not make medical surveillance mandatory for an employee who works in areas in which silica exposures exist?

Response: The employer is required by 29 CFR 1926.1153 to offer medical surveillance to an employee, whether or not the employee agrees to take the medical examinations or tests. To promote employees’ acceptance of the medical surveillance requirements, the standard requires training in the following:

• Health hazards associated with exposure to respirable crystalline silica. 29 CFR 1926.1153(i)(2)(i)(A).
• Purpose and description of the medical surveillance program required by paragraph (h) (medical surveillance) of the standard. 29 CFR 1926.1153(i)(2)(i)(F).

If an employee refuses to take the required medical exams or tests, the employer could consider having the employee sign a statement that they refused the offered medical examination/tests. Additionally, if respiratory protection is required by this standard, OSHA’s Respiratory Protection standard (29 CFR 1910.134) requires that the employer provide a medical evaluation to determine the employee’s ability to use a respirator before fit testing and use (see 29 CFR 1926.1153(e)(1), (e)(2), and 29 CFR 1910.134(e)). If the employee refuses to undergo the required medical evaluation, then they cannot use a respirator, and the employer cannot assign the employee to a position that would require respirator use. For additional information on the medical evaluation requirements in 29 CFR 1910.134, see OSHA’s letter of interpretation to Mr. Gregory Norton, October 21, 2004 (enclosed).

Employers also have the option to adopt workplace requirements more stringent than OSHA’s, such as requiring a mandatory medical examination or laboratory test as a condition of employment, as long as the examination or test is not otherwise prohibited under applicable laws and/or labor-management contracts. OSHA has clarified this aspect in a letter of interpretation, to Mr. David Perez, March 3, 2008 (enclosed).

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA’s requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA’s interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA’s website at www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs

Enclosures