MANAGING BEST PRACTICES: Waking the sleeping giant:
December 1, 2006
It’s not of a concern now, but OSHA’s standard on access to employee exposure and medical records (29 CFR 1910.1020) might pose the greatest challenge to employers in the coming years. Why?
- Experts believe that undiscovered occupational disease far exceeds the number of recognized occupational injuries. Most of the growing ranks of retired employees will develop some chronic disease as they age. Links back to occupational exposures are probable, especially as medical diagnosis improves with advancements in science and technology.
- The standard applies to any employer covered by OSHA’s hazard communication standard â€” and even has broader application. A focus of hazcom is the material safety data sheet (MSDS). An exposure record under 1910.1020 includes an MSDS. But “exposures” under 1910.1020 include biological agents, such as bacteria, viruses, and fungi and physical stress, such as noise, heat, cold, vibration, repetitive motion, and ionizing and non-ionizing radiation â€” all of which are exempted under OSHA hazcom. Medical records under 1910.1020 include “employee medical complaints” and “job descriptions.”
- Annual duty to inform. OSHA requires that employers inform employees about their rights of access to records under 1910.1020 upon “first entering into employment, and at least annually thereafter.” This duty to annually inform should not be taken lightly. Many employees can easily determine if their employer has met compliance. And plaintiff lawyers always try to establish a breach of duty â€” failure to inform â€” when they pursue a claim of negligence.
- Employee rights. OSHA 1910.1020 defines an employee as a current employee, a former employee, or even a deceased employee. In the case of a “deceased or legally incapacitated employee, the employee’s legal representative may directly exercise all the employee’s rights under this section.”
- Record retention. Employee exposure and medical records must generally be kept for a minimum of 30 years. This length of time is necessary to support epidemiological studies.
- Data sheets are the smoking gun. Some employers believe that if they do not generate exposure or medical records, they are not subject to 1910.1020. But an MSDS is an exposure record. OSHA interpretations under both the employee access to exposure and medical records standard and the hazard communication standard find that employers must not only obtain, communicate, and retain an MSDS â€” they also need to record (for a minimum of 30 years) when and where the product was used. Although OSHA has not specifically addressed the issue, quantities used and controls â€” exhaust ventilation, etc. â€” should also be associated with each MSDS.
- There are few loopholes for employers with regard to 1910.1020.
Some employers claim that monitoring records such as noise measurements
and air sampling for “engineering purposes” are exempt from
1910.1020. This would be true only in the rare case where there is no
past, present or future employee exposure to the physical agent or
toxic substance. Future exposure is included because 1910.1020(c)(8)
defines “exposure or exposed” to include “potential
(e.g. accidental or possible) exposures.”
Bottom line: The burden is on the employer to demonstrate “situations where… the toxic substance or harmful physical agent is not used, handled, or present in the workplace in any manner different than typical non-occupational situations,” according to the standard.
- Employees might not be as loyal to their employer once they retire. Former employees will have rights of access to the exposure and medical records. And retired employees may also have time and desire on their hands to pursue health concerns and/or abuse 1910.1020.
- Anything that makes our society potentially more litigious would increase interest in 1910.1020. Changes in hazcom due to global harmonization of chemical hazard information and European REACH legislation (which will foster more toxicological information on existing chemicals) are examples of global actions occurring now. Health and epidemiological investigations, such as the National Children’s Study (NCS) â€” see http://www.nationalchildrensstudy.gov/â€” will also open the door to records required by 1910.1020.
What to do
- Read OSHA’s booklet for employees on Access to Exposure and Medical Records at http://www.osha.gov/Publications/pub3110text.html.
- Read all sections of 29 CFR 1910.1020 at OSHA’s website at http://www.osha.gov/.
- Review how your employer handles and manages MSDS under the OSHA hazard communication standard at 29 CFR 1910.1200.
- Combine this knowledge with how your employer’s industrial hygiene program is managed. Determine whether all exposure risks for chemical, physical, biological, and radiological (including non-ionizing radiation from source such as welding) hazards have been adequately considered and properly documented.
- Develop a presentation for management review. At a minimum, seek input and advice on the potential impact of 1910.1020 with your employer’s legal, environmental, and human resource representatives. Then establish priorities and set objectives to improve how issues related to 1910.1020 are managed.