If you have a trade secret, the idea is to protect it. But what if an employee is injured by a trade secret chemical and you must disclose the chemical in order to save your employees life. Of course you are going to disclose the chemical to the medical professionals, but you want to make sure that the medical team does not disclose your trade secrets to anyone once they are finished treating your employee.
If you’re a college or university that has a lab and is tasked with high profile research, you may encounter situation such as these.
What would a doctor want with your trade secret chemical? Well, that’s not for us to say, but we can say this – doctors have brother-in-laws who own businesses, family members who work for competitors or they may just be in need of some fast cash and know how to sell secrets. Who knows, but blind faith/trust in the process is not the best risk management process.
Stopping the Leak
Sure you can ask for a confidentiality agreement after the treatment and disclosure of your trade secret, but the better play is to have your confidentiality agreement in place prior to any employee ever seeing the clinic or hospital.
So, how do you stop the leak. Simple, most proactive workers compensation departments setup agreements with clinics and hospitals prior to sending employees to the clinics for injury treatment. This is partly for billing purposes, notification of injuries, the ability to request records, light duty assignments and the like. The person in charge of setting up these clinics should include a confidentiality agreement during the account setup process.
In addition, some organizations have implemented an MPN. The company or person who is charged with setting up the MPN could and should also include the confidentiality agreement as part of the enrollment process with the clinic.
To protect your organization’s trade secrets, you should consider doing the following:
- Determine if you have chemical trade secrets
- Determine if you use an MPN
- Ask the MPN administrator if a confidentiality agreement is already in use
- Obtain copies of any confidentiality agreements or draft new ones
- Include in these agreements in your account profile when setting up clinics
- Approach existing clinics and implement the agreement
Why are we looking at Federal OSHA
We are providing you with a look into Federal OSHA standards because at the time of this article, Cal-OSHA has not yet implemented a hazard communication standard (5194) in compliance with GHS, which means that you as an employer will start to follow the Federal standard (1910.1200) until such a time that Cal-OSHA gets in gear.
Federal OSHA 1910.1200
(i)(2) Where a treating physician or nurse determines that a medical emergency exists and the specific chemical identity and/or specific percentage of composition of a hazardous chemical is necessary for emergency or first-aid treatment, the chemical manufacturer, importer, or employer shall immediately disclose the specific chemical identity or percentage composition of a trade secret chemical to that treating physician or nurse, regardless of the existence of a written statement of need or a confidentiality agreement. The chemical manufacturer, importer, or employer may require a written statement of need and confidentiality agreement, in accordance with the provisions of paragraphs (i)(3) and (4) of this section, as soon as circumstances permit.