Do employees have a right to access health and safety records?

Share with your friends










Submit

The answer is “yes.”  Employees do have a right to access health and safety records.  It is covered under California Title 8 (Cal-OSHA) Section 3204(e)(2).  There is much debate about what constitutes a record, especially when it comes to Industrial Hygiene (IH) surveys.  Is it the full report or just the sampling results.  Let’s look at this way, if you hand over just the sampling results and not the report which explains what those results mean, you are just inviting more headaches.  Do yourself the favor and hand over the full report.  Just make sure that your industrial hygienist didn’t write any negative comments in the report about Sally.

(e) Access to Records.

(1) General.

(A) Whenever an employee or designated representative requests access to a record, the employer shall assure that access is provided in a reasonable time, place, and manner, but in no event later that fifteen (15) days after the request for access is made. Before the time for providing access has expired, an employer after notice to the employee or designated representative may, by notification to be followed in writing, request an extension of time from the Chief, Division of Occupational Safety and Health, which shall be granted upon a finding of good cause by the Chief.

(B) The employer may require of the requester only such information as should be readily known to the requester and which may be necessary to locate or identify the records being requested (e.g., dates and locations where the employee worked during the time period in question).

(C) Whenever an employee or designated representative requests a copy of a record, the employer shall assure that either:

1. A copy of the record is provided without cost to the employee or designated representative;

2. The necessary mechanical copying facilities (e.g. photocopying) are made available without cost to the employee or designated representative for copying the record; or

3. The record is loaned to the employee or designated representative for a reasonable time to enable a copy to be made.

(D) In the case of an original X-ray, the employer may restrict access to on-site examination or make other suitable arrangements for the temporary loan of the X-ray.

(E) Whenever a record has been provided previously without cost to an employee or designated representative, the employer may charge reasonable, non-discriminatory administrative costs (i.e., search and copying expenses but not including overhead expenses) for additional copies of the record.

EXCEPTIONS:

1. An employer shall not charge for an initial request for a copy of new information that has been added to a record which was previously provided.

2. An employer shall not charge for an initial request by a recognized or certified collective bargaining agent for a copy of an employee exposure record or an analysis using exposure or medical records.

(F) Nothing in this section is intended to preclude employees and collective bargaining agents from collectively bargaining to obtain access to information in addition to that available under this section.

(G) Whenever an employee requests access to a specific written consent submitted to the employer, the employer shall comply pursuant to the provisions for affording employee access to records stipulated by sections 3204(e)(1)(A)-(C).

(2) Employee and Designated Representative Access.

(A) Employee Exposure Records.

1. Except as limited by section 3204(f), each employer shall, upon request, assure the access of each employee and designated representative to employee exposure records relevant to the employee. For the purpose of this section, exposure records relevant to the employee consist of:

a. A record containing measurements or monitoring results of the amount of a toxic substance or harmful physical agent to which the employee is or has been exposed;

b. In the absence of such directly relevant records, such records of other employees with past or present job duties or working conditions related to or similar to those of the employee to the extent necessary to reasonably indicate the amount and nature of the toxic substances or harmful physical agents to which the employee is or has been subjected; and

c. Exposure records to the extent necessary to reasonably indicate the amount and nature of the toxic substance or harmful physical agent at workplaces or working conditions to which the employee is being assigned or transferred.

2. Requests by designated representatives for unconsented access to employee exposure records shall be in writing and shall specify with reasonable particularity:

a. The records requested to be disclosed; and

b. The occupational health need for gaining access to these records.

(B) Employee Medical Records.

1. Each employer shall, upon request, assure the access of each employee to employee medical records of which the employee is the subject, except as provided in section 3204(e)(2)(B)4.

2. Each employer shall, upon request, assure the access of each designated representative to the employee medical records of any employee who has given the designated representative specific written consent.

NOTE: Appendix A to this section contains a sample form which may be used to establish specific written consent for access to employee medical records.

3. Whenever access to employee medical records is requested in accordance with section 3204(e)(2)(B)1 or 2, a physician representing the employer may recommend that the employee or designated representative: consult with the physician for the purposes of reviewing and discussing the records requested; accept a summary of material facts and opinions in lieu of the records requested; or accept release of the requested records only to a physician or other designated representative.

4. Whenever an employee requests access to his or her employee medical records and a physician representing the employer believes that direct employee access to information contained in the records regarding a specific diagnosis of a terminal illness or a psychiatric condition could be detrimental to the employee’s health, the employer may deny the employee’s request for direct access to this information only, and the employer shall inform the employee that access will only be provided to a designated representative of the employee having specific written consent.

5. Where a designated representative with specific written consent requests access to information withheld in accordance with section 3204(e)(2)(B)4, the employer shall assure the access of the designated representative to this information even when it is known that the designated representative will give the information to the employee.

NOTE: Nothing in this section precludes a physician, nurse, or other responsible health care personnel maintaining employee medical records from deleting from requested medical records the identity of a family member, personal friend, or fellow employee who has provided confidential information concerning an employee’s health status.

(C) Analyses Using Exposure or Medical Records.

1. Each employer shall, upon request, assure the access of each employee and designated representative to each analysis using exposure or medical records concerning the employee’s working conditions or workplace.

2. Whenever access is requested to an analysis which reports the contents of employee medical records by either direct identifier (name, address, social security number, payroll number, etc.) or by information which could reasonably be used under the circumstances indirectly to identify specific employees (exact age, height, weight, race, sex, date of initial employment, job title, etc.), the employer shall assure that personal identifiers are removed before access is provided. If the employer can demonstrate that removal of personal identifiers from an analysis is not feasible, access to the personally identifiable portions of the analysis need not be provided.

(3) Division of Occupational Safety and Health Access.

(A) Each employer shall, upon request, and without derogation of any rights under the Constitution of the United States, the Constitution of the State of California or the California Occupational Safety and Health Act of 1973, Labor Code sections 6300 et seq., that the employer chooses to exercise, assure the prompt access of representatives of the Chief of the Division of Occupational Safety and Health (DOSH) to employee exposure and medical records and to analyses using exposure or medical records.

(B) Whenever DOSH seeks access to personally identifiable employee medical information by presenting to the employer a written access order, the employer shall prominently post a copy of the written access order and its accompanying cover letter for at least fifteen (15) working days.

Leave a Reply

Your email address will not be published. Required fields are marked *