December 21, 2023

Ms. Lindsay A. DiSalvo, Partner
Conn Maciel Carey LLP
5335 Wisconsin Avenue NW, Suite 660
Washington, DC 20015

Dear Ms. DiSalvo:

Thank you for your inquiry to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs. You requested information regarding the transfer of employee exposure and medical records under OSHA's regulation at 29 CFR § 1910.1020, Access to employee exposure and medical records. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. Your scenario and specific question are paraphrased below, followed by OSHA's response.

Background: You stated that a single legal entity employer who has several unincorporated operating divisions has plans to transition one of its larger divisions into a new, publicly traded legal entity. The plan is to first establish this new entity as a wholly owned subsidiary of the company, with the subsidiary handling all of the specific type of work that had been within that division's purview, with all of the same assets and employees. Then, shortly thereafter, that subsidiary will be taken public as a truly separate company.

As it pertains to employee medical and exposure records required to be maintained under 29 CFR § 1910.1020, the transitioning division currently maintains all the medical and exposure records for its employees. You've suggested that the proper application of 29 CFR § 1910.1020(h)(1) is for the transitioning division, both when it becomes a wholly-owned subsidiary and then when it separates as its own public company, to continue to maintain the exposure and medical records for employees that are retained by the new company.

In addition, you mentioned four OSHA letters of interpretation (LOIs) that provide related interpretations regarding 29 CFR § 1910.1020, including an October 26, 1998, LOI to Matthew Soltis, Tetra Tech Inc., an April 27, 2004, LOI to Lee Hager, a February 1, 2008, LOI to Frank Hearl, NIOSH, and a January 11, 2017, LOI to Rick Smith, NASA.¹

You suggested that the record retention obligation, in your circumstance, should shift to the subsidiary entity that will continue to control the day-to-day operations of the retained employees.

Question: Can OSHA confirm that we have evaluated the scenario correctly, or does OSHA see this more like the response in the Tetra Tech Inc. LOI?

Response: Yes. OSHA's regulation at 29 CFR § 1910.1020 includes requirements for the access and retention of employee exposure and medical records. The regulation applies to each general industry, maritime, and construction employer who makes, maintains, contracts for, or has access to employee exposure or medical records, or analyses thereof, pertaining to employees exposed to toxic substances or harmful physical agents. See 1910.1020(b)(1). Section 1910.1020(h)(1) goes on to provide, " [w]henever an employer is ceasing to do business, the employer shall transfer all records subject to this section to the successor employer. The successor employer shall receive and maintain these records."

The doctrine of successor liability is derived from labor law principles developed in a series of Supreme Court cases decided in the 1960's and 1970's. Although this doctrine was first applied to Labor Management Relations Act cases, it has been extended by the courts to cover most other Federal labor and employment statutes, including the Occupational Safety and Health Act of 1970 (OSH Act). See Dole v. H.M.S. Direct Mail Service, Inc., 752 F. Supp. 573 (W.D.N.Y. 1990), rev'd and rem'd on different grounds, 936 F.2d 108 (2^nd Cir. 1991).

It is OSHA's position that when an employer acquires a business' assets and continues to use those assets in substantial continuity with the predecessor; it is a successor employer subject to the access and retention requirements in 29 CFR § 1910.1020. This approach furthers the goals of the OSH Act because it places the records access and retention obligation on the employer who exercises day-to-day control over the employees who are the subject of the records. In addition, this approach not only allows the successor employer to provide continuous long-term employee access to exposure and medical records, but also allows that employer to better understand the safety and health hazards faced by their employees in the workplace.

Based on the facts described above, OSHA believes that the transitioning subsidiary is a successor employer for purposes of 29 CFR § 1910.1020(h)(1) because it will handle all of the same work duties it had performed within the predecessor company, with all of the same assets and employees. Also, the transitioning subsidiary already maintains all of the employee medical and exposure records required to be maintained under 29 CFR § 1910.1020. In other words, the new company is acquiring assets from the predecessor and continuing, without interruption or substantial change, the operations it had performed under the predecessor. Accordingly, the new company must continue to maintain the medical and exposure records for their employees in accordance with 29 CFR § 1910.1020.

Thank you for your interest in occupational safety and health. I hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. 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 further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Kimberly A. Stille, Director
Directorate of Enforcement Programs

¹ All OSHA letters of interpretation may be accessible on the OSHA website by date at https://www.osha.gov/lawsregs/standardinterpretations/publicationdate/currentyear.