Monday, October 1, 2012

The OSHA Standard You May Not Realize Applies to You!

In this month’s blog post, I thought I’d share with you the one OSHA standard that I’ve seen many employers overlook time and time again whenever I conduct mock-OSHA inspections. And the excuse provided by so many employers for non-compliance with this standard? They had no idea the standard applied to them, or in many cases, that the standard even existed. 

But before I reveal which standard it is, I want you to think back, way back, and determine if one or more of the following events have occurred at your company or organization during the past thirty (30) years:
 
·         An air survey was performed to determine employee exposure to a chemical or substance;
 
·         A noise survey and/or dosimetry study was performed to determine employee exposure to noise levels;
 
·         An employee was subject to biological monitoring (e.g.: blood test), medical surveillance and/or medical monitoring due to working with a hazardous chemical or substance (like lead, asbestos or hexavalent chromium);
 
·         One or more employees received a medical examination by a physician or other licensed healthcare provider prior to wearing a respirator; 
 
·         Your company or organization developed a written Exposure Control Plan per the OSHA Bloodborne Pathogens standard;
 
·         An employee accepted the hepatitis B vaccination series as part of your Bloodborne Pathogens program, and/or received a medical evaluation (and possibly follow-up care) due to an exposure incident involving blood or other potentially-infectious materials;
  
·         Your company has old material safety data sheets (MSDSs) for hazardous chemicals and products that are no longer in use at your site.
   
If you answered yes to one or more of these, there will be some kind of document or written record associated with that item. And that document or record is subject to the record preservation and access requirements of OSHA standard 1910.1020, titled “Employee Access to Employee Exposure and Medical Records.”
 
In a nutshell, the OSHA 1910.1020 standard requires the employer to do two things:
 
A)  Maintain certain exposure records (including old MSDSs) and/or written programs for 30 years, and certain medical records for the duration of an affected worker's employment plus 30 years; and, 
  
B)  Notify affected employees when they first start work and at least annually thereafter of the existence of these records and their availability to the worker or their designated representative (e.g.: authorized union representative; an attorney or other person to whom the employee has given specific written consent to exercise a right of access).
  
There are many types of records other than the few listed above that are covered by this standard too; just refer to 1910.1020(c)(5) and (6) for an overview of applicable documents. And in some cases, the record retention and availability requirements are actually listed in one of OSHA’s substance-specific standards; for example, the requirement to make available a copy of your written Bloodborne Pathogens (BBP) Exposure Control Plan is actually listed in 1910.1030(c)(1)(iii), while the preservation requirements for BBP-related medical records is stated in 1910.1030(h)(1)(iv). In addition, the OSHA Respiratory Protection standard contains a requirement for maintaining and making available employee medical examination records per 1910.1020 [see 1910.134(m)(1)]. So review all OSHA standards, especially those substance-specific standards within Subpart Z, for similar requirements. And even though this is a 1910 general industry standard, it applies to employers engaged in the maritime and construction industries too [see scope and application at 1910.1020(b)(1)].
  
There are a few caveats to the rule for maintaining some exposure and medical records. For example, instead of keeping hard copies of MSDSs for items no longer in use at the facility on file for 30 years, you can instead create and maintain a list containing the identity (chemical names if known) of the substances or agents, where they were used, and when they were used, and keep that list on file for the thirty (30) year retention period [see 1910.1020(d)(1)(ii)(B)]. In addition, some OSHA health standards have different record-retention policies (such as the standard for ionizing radiation). And the medical records of employees who have worked for less than one (1) year for the employer need not be retained beyond the term of employment if they are provided to the employee upon the termination of their employment [see 1910.1020(d)(1)(i)(C)]. So carefully check all OSHA standards in Subpart Z for any exceptions.
  
Preserving these records is only half the battle. It is also vitally important not to overlook the OSHA requirement to notify employees of the existence of these records and their right to access them. As previously mentioned, this notification must take place when the employee is hired, as well as annually thereafter [see 1910.1020(g)(1)(i) – (iii)]. The initial notification can be achieved by incorporating this information into your orientation for new employees who are affected by this standard. And the annual re-notification can be handled through an annual training session, although I have seen numerous companies post a memo with the annual re-notification on their employee bulletin boards next to their state or Federal OSHA poster, and leaving it in place until it is time to repost the updated information twelve (12) months later. Here is a link to a free sample poster similar to what I’ve seen used for such notifications. Of course, this notification must be presented in a language that is understood by affected employees.
  
Keep in mind that the employee making the request for exposure records does not have to be the same worker who was physically involved in the actual exposure monitoring event (such as an air or noise survey); Employees are allowed access to exposure records of other employees with past or present job duties or working conditions related to or similar to those of the employee making the request [see 1910.1020(e)(2)(i)(A)(2)]. This is based on the assumption that such records reasonably indicate the amount and nature of the toxic substances or harmful physical agents to which the requesting employee is or has been subjected.
  
One other important thing to know is that this standard does not give an employee or their designated representative the right to just dig through your files and make copies of whatever records they want. The OSHA standard requires them to make a very detailed written request of the record(s) they want (click here for a sample request letter). Then the employer has fifteen (15) working days to make the record(s) available for review and/or copying [see 1910.1020(e)(1)(i)].
  
So check out the details in this often-overlooked OSHA standard, and make certain you are maintaining all required records, and just as importantly, you are notifying affected workers of their rights to access as required. And if you want to see OSHA’s 30+ letters of interpretation on this topic, here is a link for those as well.
  
If you’d like to share with our other readers how you handle the employee notification requirements at your company or organization, or if you know of a specific record covered by this OSHA standard that is not listed in this blog post, please provide that information in the “comments” section below. And last but not least, please pass a link to this blog post along to others in your network who you think may benefit by this information.

5 comments:

  1. Great articles, thank you Curtis I really enjoyed them! I learned something new today.

    John

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  2. Hello Curtis….I’m positively amazed that there are still companies after all these years who are unfamiliar with this particular standard as it is as old as OSHA itself. I’ve been providing annual reviews for what I’ve always titled as a training topic “Access to Employee Exposure and Medical Records”. In addition to documentation for the annual review, I’ve attached an example template of the bulletin board posting that is “required” by my company to be posted on all field and office bulletin boards (primary) where employees receive official notifications. It’s always worked pretty well. I do work for a larger corporation, however, so establishment of an internal work process plus availability of internal resources doesn’t take away from the challenges of managing records for a large organization and assurance over time, but it is less challenging to implement this type of assurance in a larger company. I can see where it would be more of a challenge from both a cost perspective and records management perspective and particularly for those companies where turnover may be higher. All that said, it was definitely a good topic to get on everyone’s radar screen.

    I always enjoy your monthly postings!!...........Take care and kind regards,

    ReplyDelete
  3. You have the ability to weave staid strands of information into a cohesive narrative. I look forward to reading your posts. Please keep writing.

    ReplyDelete
  4. Hi,
    Thanks for the information about this Really nice Post.
    Volunteer medical programs

    ReplyDelete
  5. Curtis, I could not agree more with you on this. I also do numerous OSHA audits and find the same thing. I am glad to see that others find the same issue. Maybe now we all can inform our clients/employeers of this important rule.

    ReplyDelete

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