Rules of agency practice and procedure (1913.10)

[Code of Federal Regulations]
[Title 29, Volume 7]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1913.10]
[Page 22-27]
TITLE 29--LABOR
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT
OF LABOR (CONTINUED)
PART 1913_RULES OF AGENCY PRACTICE AND PROCEDURE CONCERNING OSHA ACCESS
TO
Sec. 1913.10
access

Rules of agency practice and procedure concerning OSHA

to employee medical records.
(a) General policy. OSHA access to employee medical records will in
certain circumstances be important to the agency's performance of its
statutory functions. Medical records, however, contain personal details
concerning the lives of employees. Due to the substantial personal
privacy interests involved, OSHA authority to gain access to personally
identifiable employee medical information will be exercised only after
the agency has made a careful determination of its need for this
information, and only with appropriate safeguards to protect individual
privacy. Once this information is obtained, OSHA examination and use of
it will be limited to only that information needed to accomplish the
purpose for access. Personally identifiable employee medical
information
will be retained by OSHA only for so long as needed to accomplish the
purpose for access, will be kept secure while being used, and will not
be disclosed to other agencies or members of the public except in
narrowly defined circumstances. This section establishes procedures to
implement these policies.
(b) Scope and application. (1) Except as provided in paragraphs (b)
(3) through (6) below, this section applies to all requests by OSHA
personnel to obtain access to records in order to examine or copy
personally identifiable employee medical information, whether or not
pursuant to the access provisions of 29 CFR 1910.1020(e).
(2) For the purposes of this section, ``personally identifiable
employee medical information'' means employee medical information
accompanied by either direct identifiers (name, address, social
security
number, payroll number, etc.) or by information which could reasonably
be used in the particular circumstances indirectly to identify specific
employees (e.g., exact age, height, weight, race, sex, date of initial
employment, job title, etc.).
(3) This section does not apply to OSHA access to, or the use of,
aggregate employee medical information or medical records on individual
employees which is not in a personally identifiable form. This section
does not apply to records required by 29 CFR part 1904, to death
certificates, or to employee exposure records, including biological

monitoring records treated by 29 CFR 1910.1020(c)(5) or by specific
occupational safety and health standards as exposure records.
(4) This section does not apply where OSHA compliance personnel
conduct an examination of employee medical records solely to verify
employer compliance with the medical surveillance
[[Page 23]]
recordkeeping requirements of an occupational safety and health
standard, or with 29 CFR 1910.1020. An examination of this nature shall
be conducted on-site and, if requested, shall be conducted under the
observation of the recordholder. The OSHA compliance personnel shall
not
record and take off-site any information from medical records other
than
documentation of the fact of compliance or non-compliance.
(5) This section does not apply to agency access to, or the use of,
personally identifiable employee medical information obtained in the
course of litigation.
(6) This section does not apply where a written directive by the
Assistant Secretary authorizes appropriately qualified personnel to
conduct limited reviews of specific medical information mandated by an
occupational safety and health standard, or of specific biological
monitoring test results.
(7) Even if not covered by the terms of this section, all medically
related information reported in a personally identifiable form shall be
handled with appropriate discretion and care befitting all information
concerning specific employees. There may, for example, be personal
privacy interests involved which militate against disclosure of this
kind of information to the public (See, 29 CFR 70.26 and 70a.3).
(c) Responsible persons--(1) Assistant Secretary. The Assistant
Secretary of Labor for Occupational Safety and Health (Assistant
Secretary) shall be responsible for the overall administration and
implementation of the procedures contained in this section, including
making final OSHA determinations concerning:
(i) Access to personally identifiable employee medical information
(paragraph (d)), and
(ii) Inter-agency transfer or public disclosure of personally
identifiable employee medical information (paragraph (m)).
(2) OSHA Medical Records Officer. The Assistant Secretary shall
designate an OSHA official with experience or training in the
evaluation, use, and privacy protection of medical records to be the
OSHA Medical Records Officer. The OSHA Medical Records Officer shall
report directly to the Assistant Secretary on matters concerning this
section and shall be responsible for:
(i) Making recommendations to the Assistant Secretary as to the
approval or denial of written access orders (paragraph (d)),
(ii) Assuring that written access orders meet the requirements of
paragraphs (d) (2) and (3) of this section,
(iii) Responding to employee, collective bargaining agent, and
employer objections concerning written access orders (paragraph (f)),
(iv) Regulating the use of direct personal identifiers (paragraph
(g)),
(v) Regulating internal agency use and security of personally
identifiable employee medical information (paragraphs (h) through (j)),
(vi) Assuring that the results of agency analyses of personally

identifiable medical information are, where appropriate, communicated
to
employees (paragraph (k)),
(vii) Preparing an annual report of OSHA's experience under this
section (paragraph (l)), and
(viii) Assuring that advance notice is given of intended interagency transfers or public disclosures (paragraph (m)).
(3) Principal OSHA Investigator. The Principal OSHA Investigator
shall be the OSHA employee in each instance of access to personally
identifiable employee medical information who is made primarily
responsible for assuring that the examination and use of this
information is performed in the manner prescribed by a written access
order and the requirements of this section (paragraphs (d) through (m).
When access is pursuant to a written access order, the Principal OSHA
Investigator shall be professionally trained in medicine, public
health,
or allied fields (epidemiology, toxicology, industrial hygiene,
biostatistics, environmental health, etc.).
(d) Written access orders--(1) Requirement for written access
order.
Except as provided in paragraph (d)(4) below, each request by an OSHA
representative to examine or copy personally identifiable employee
medical information contained in a record held by an employer or other
recordholder shall be made pursuant to a written access
[[Page 24]]
order which has been approved by the Assistant Secretary upon the
recommendation of the OSHA Medical Records Officer. If deemed
appropriate, a written access order may constitute, or be accompanied
by, an administrative subpoena.
(2) Approval criteria for written access order. Before approving a
written access order, the Assistant Secretary and the OSHA Medical
Records Officer shall determine that:
(i) The medical information to be examined or copied is relevant to
a statutory purpose and there is a need to gain access to this
personally identifiable information,
(ii) The personally identifiable medical information to be examined
or copied is limited to only that information needed to accomplish the
purpose for access, and
(iii) The personnel authorized to review and analyze the personally
identifiable medical information are limited to those who have a need
for access and have appropriate professional qualifications.
(3) Content of written access order. Each written access order
shall
state with reasonable particularity:
(i) The statutory purposes for which access is sought,
(ii) A general description of the kind of employee medical
information that will be examined and why there is a need to examine
personally identifiable information,
(iii) Whether medical information will be examined on-site, and
what
type of information will be copied and removed off-site,
(iv) The name, address, and phone number of the Principal OSHA
Investigator and the names of any other authorized persons who are
expected to review and analyze the medical information.
(v) The name, address, and phone number of the OSHA Medical Records

Officer, and
(vi) The anticipated period of time during which OSHA expects to
retain the employee medical information in a personally identifiable
form.
(4) Special situations. Written access orders need not be obtained
to examine or copy personally identifiable employee medical information
under the following circumstances:
(i) Specific written consent. If the specific written consent of an
employee is obtained pursuant to 29 CFR 1910.1020(e)(2)(ii), and the
agency or an agency employee is listed on the authorization as the
designated representative to receive the medical information, then a
written access order need not be obtained. Whenever personally
identifiable employee medical information is obtained through specific
written consent and taken off-site, a Principal OSHA Investigator shall
be promptly named to assure protection of the information, and the OSHA
Medical Records Officer shall be notified of this person's identity.
The
personally identifiable medical information obtained shall thereafter
be
subject to the use and security requirements of paragraphs (h) through
(m) of this section.
(ii) Physician consultations. A written access order need not be
obtained where an OSHA staff or contract physician consults with an
employer's physician concerning an occupational safety or health issue.
In a situation of this nature, the OSHA physician may conduct on-site
evaluation of employee medical records in consultation with the
employer's physician, and may make necessary personal notes of his or
her findings. No employee medical records, however, shall be taken offsite in the absence of a written access order or the specific written
consent of an employee, and no notes of personally identifiable
employee
medical information made by the OSHA physician shall leave his or her
control without the permission of the OSHA Medical Records Officer.
(e) Presentation of written access order and notice to employees.
(1) The Principal OSHA Investigator, or someone under his or her
supervision, shall present at least two (2) copies each of the written
access order and an accompanying cover letter to the employer prior to
examining or obtaining medical information subject to a written access
order. At least one copy of the written access order shall not identify
specific employees by direct personal identifier. The accompanying
cover
letter shall summarize the requirements
[[Page 25]]
of this section and indicate that questions or objections concerning
the
written access order may be directed to the Principal OSHA Investigator
or to the OSHA Medical Records Officer.
(2) The Principal OSHA Investigator shall promptly present a copy
of
the written access order (which does not identify specific employees by
direct personal identifier) and its accompanying cover letter to each
collective bargaining agent representing employees whose medical
records
are subject to the written access order.

(3) The Principal OSHA Investigator shall indicate that the
employer
must promptly post a copy of the written access order which does not
identify specific employees by direct personal identifier, as well as
post its accompanying cover letter (See, 29 CFR 1910.1020(e)(3)(ii)).
(4) The Principal OSHA Investigator shall discuss with any
collective bargaining agent and with the employer the appropriateness
of
individual notice to employees affected by the written access order.
Where it is agreed that individual notice is appropriate, the Principal
OSHA Investigator shall promptly provide to the employer an adequate
number of copies of the written access order (which does not identify
specific employees by direct personal identifier) and its accompanying
cover letter to enable the employer either to individually notify each
employee or to place a copy in each employee's medical file.
(f) Objections concerning a written access order. All employee,
collective bargaining agent, and employer written objections concerning
access to records pursuant to a written access order shall be
transmitted to the OSHA Medical Records Officer. Unless the agency
decides otherwise, access to the records shall proceed without delay
notwithstanding the lodging of an objection. The OSHA Medical Records
Officer shall respond in writing to each employee's and collective
bargaining agent's written objection to OSHA access. Where appropriate,
the OSHA Medical Records Officer may revoke a written access order and
direct that any medical information obtained by it be returned to the
original recordholder or destroyed. The Principal OSHA Investigator
shall assure that such instructions by the OSHA Medical Records Officer
are promptly implemented.
(g) Removal of direct personal identifiers. Whenever employee
medical information obtained pursuant to a written access order is
taken
off-site with direct personal identifiers included, the Principal OSHA
Investigator shall, unless otherwise authorized by the OSHA Medical
Records Officer, promptly separate all direct personal identifiers from
the medical information, and code the medical information and the list
of direct identifiers with a unique identifying number for each
employee. The medical information with its numerical code shall
thereafter be used and kept secured as though still in a directly
identifiable form. The Principal OSHA Investigator shall also hand
deliver or mail the list of direct personal identifiers with their
corresponding numerical codes to the OSHA Medical Records Officer. The
OSHA Medical Records Officer shall thereafter limit the use and
distribution of the list of coded identifiers to those with a need to
know its contents.
(h) Internal agency use of personally identifiable employee medical
information. (1) The Principal OSHA Investigator shall in each instance
of access be primarily responsible for assuring that personally
identifiable employee medical information is used and kept secured in
accordance with this section.
(2) The Principal OSHA Investigator, the OSHA Medical Records
Officer, the Assistant Secretary, and any other authorized person
listed
on a written access order may permit the examination or use of
personally identifiable employee medical information by agency
employees
and contractors who have a need for access, and appropriate

qualifications for the purpose for which they are using the
information.
No OSHA employee or contractor is authorized to examine or otherwise
use
personally identifiable employee medical information unless so
permitted.
(3) Where a need exists, access to personally identifiable employee
medical information may be provided to attorneys in the Office of the
Solicitor of Labor, and to agency contractors who
[[Page 26]]
are physicians or who have contractually agreed to abide by the
requirements of this section and implementing agency directives and
instructions.
(4) OSHA employees and contractors are only authorized to use
personally identifiable employee medical information for the purposes
for which it was obtained, unless the specific written consent of an
employee is obtained as to a secondary purpose, or the procedures of
paragraphs (d) through (g) of this section are repeated with respect to
the secondary purpose.
(5) Whenever practicable, the examination of personally
identifiable
employee medical information shall be performed on-site with a minimum
of medical information taken off-site in a personally identifiable
form.
(i) Security procedures. (1) Agency files containing personally
identifiable employee medical information shall be segregated from
other
agency files. When not in active use, files containing this information
shall be kept secured in a locked cabinet or vault.
(2) The OSHA Medical Records Officer and the Principal OSHA
Investigator shall each maintain a log of uses and transfers of
personally identifiable employee medical information and lists of coded
direct personal identifiers, except as to necessary uses by staff under
their direct personal supervision.
(3) The photocopying or other duplication of personally
identifiable
employee medical information shall be kept to the minimum necessary to
accomplish the purposes for which the information was obtained.
(4) The protective measures established by this section apply to
all
worksheets, duplicate copies, or other agency documents containing
personally identifiable employee medical information.
(5) Intra-agency transfers of personally identifiable employee
medical information shall be by hand delivery, United States mail, or
equally protective means. Inter-office mailing channels shall not be
used.
(j) Retention and destruction of records. (1) Consistent with OSHA
records disposition programs, personally identifiable employee medical
information and lists of coded direct personal identifiers shall be
destroyed or returned to the original recordholder when no longer
needed
for the purposes for which they were obtained.
(2) Personally identifiable employee medical information which is
currently not being used actively but may be needed for future use
shall

be transferred to the OSHA Medical Records Officer. The OSHA Medical
Records Officer shall conduct an annual review of all centrally-held
information to determine which information is no longer needed for the
purposes for which it was obtained.
(k) Results of an agency analysis using personally identifiable
employee medical information. The OSHA Medical Records Officer shall,
as
appropriate, assure that the results of an agency analysis using
personally identifiable employee medical information are communicated
to
the employees whose personal medical information was used as a part of
the analysis.
(l) Annual report. The OSHA Medical Records Officer shall on an
annual basis review OSHA's experience under this section during the
previous year, and prepare a report to the Assistant Secretary which
shall be made available to the public. This report shall discuss:
(1) The number of written access orders approved and a summary of
the purposes for access,
(2) The nature and disposition of employee, collective bargaining
agent, and employer written objections concerning OSHA access to
personally identifiable employee medical information, and
(3) The nature and disposition of requests for inter-agency
transfer
or public disclosure of personally identifiable employee medical
information.
(m) Inter-agency transfer and public disclosure. (1) Personally
identifiable employee medical information shall not be transferred to
another agency or office outside of OSHA (other than to the Office of
the Solicitor of Labor) or disclosed to the public (other than to the
affected employee or the original recordholder) except when required by
law or when approved by the Assistant Secretary.
[[Page 27]]
(2) Except as provided in paragraph (m)(3) of this section, the
Assistant Secretary shall not approve a request for an inter-agency
transfer of personally identifiable employee medical information, which
has not been consented to by the affected employees, unless the request
is by a public health agency which:
(i) Needs the requested information in a personally identifiable
form for a substantial public health purpose,
(ii) Will not use the requested information to make individual
determinations concerning affected employees which could be to their
detriment,
(iii) Has regulations or established written procedures providing
protection for personally identifiable medical information
substantially
equivalent to that of this section, and
(iv) Satisfies an exemption to the Privacy Act to the extent that
the Privacy Act applies to the requested information (See, 5 U.S.C.
552a(b); 29 CFR 70a.3).
(3) Upon the approval of the Assistant Secretary, personally
identifiable employee medical information may be transferred to:
(i) The National Institute for Occupational Safety and Health
(NIOSH) and
(ii) The Department of Justice when necessary with respect to a
specific action under the Occupational Safety and Health Act.

(4) The Assistant Secretary shall not approve a request for public
disclosure of employee medical information containing direct personal
identifiers unless there are compelling circumstances affecting the
health or safety of an individual.
(5) The Assistant Secretary shall not approve a request for public
disclosure of employee medical information which contains information
which could reasonably be used indirectly to identify specific
employees
when the disclosure would constitute a clearly unwarranted invasion of
personal privacy (See, 5 U.S.C. 552(b)(6); 29 CFR 70.26).
(6) Except as to inter-agency transfers to NIOSH or the Department
of Justice, the OSHA Medical Records Officer shall assure that advance
notice is provided to any collective bargaining agent representing
affected employees and to the employer on each occasion that OSHA
intends to either transfer personally identifiable employee medical
information to another agency or disclose it to a member of the public
other than to an affected employee. When feasible, the OSHA Medical
Records Officer shall take reasonable steps to assure that advance
notice is provided to affected employees when the employee medical
information to be transferred or disclosed contains direct personal
identifiers.
[45 FR 35294, May 23, 1980; 45 FR 54334, Aug. 15, 1980, as amended at
71
FR 16674, Apr. 3, 2006]