For those of you who are SAFTENG members and manage a Respiratory Protection program, this is NOT news to you, as we have discussed this many times before, and if you have been to my 1.5 Day Respiratory Protection Administrator course, you got this beat into your head! But for those less fortunate, here is the official OSHA position…
The respirator program MEDICAL evaluation is indeed a MEDICAL record that falls under 1910.1020, Access to employee exposure and medical records
Some of these questions that are sent to OSHA for clarification amaze me – it is almost like the teen asking Mom if they can do something and not liking the response, so they go ask Dad, hoping for a different response. Nonetheless, they do provide us with a lot of insight as to how OSHA views its standards and enforcement positions. BUT PLEASE KEEP in mind… the OSHA position is the LOWEST SAFETY BAR we MUST be above! Nonetheless, it does provide us with a clear floor from which to build. Here is what OSHA says about the Respiratory Protection Program Mecial Evaluation medical records…
PLEASE NOTE: This document speaks specifically to spirometry test results, but this test is NOT required for all respirator users. but ALL respirator users are required to be medically evaluated, and these results are indeed MEDICAL RECORDS.
Background: Your company provides National Institute for Occupational Safety and Health (NIOSH) approved spirometry training to physicians or other licensed health care professionals (PLHCP). You require clarification to determine if spirometry test results constitute a medical record as well as who is responsible for maintaining medical records.
Question 1: Are spirometry test results considered an employee medical record and are these results required to be maintained for the duration of employment plus 30 years per OSHA’s Access to Employee Exposure and Medical Records standard (29 CFR 1910.1020)?
Reply: Spirometry test results are the product of medical examinations and are considered a medical record as defined by 29 CFR 1910.1020(c)(6)(i)(B). 29 CFR 1910.1020(d) states that each employee’s medical record must be preserved and maintained for at least the duration of employment plus 30 years with the EXCEPTION of employees who have worked for less than one year and have been provided their medical records upon the termination of employment. See 29 CFR 1910.1020(d)(1)(i) and [(d)(1)(i)(C)].
Question 2: Where an employer contracts with a PLHCP to provide spirometry tests to employees, who is responsible for maintaining records of the results for such tests?
Reply: 29 CFR 1910.1020(b)(3) provides that EACH EMPLOYER must assure the preservation and access requirements of 29 CFR 1910.1020 are complied with regardless of the manner in which the records are made or maintained. Where an employer contracts with a PLHCP to provide spirometry tests to employees, the employer is responsible for ensuring the retention of records in the possession of the PLHCP. An employer can fulfill this obligation by including the retention requirement in the agreement between the employer and the PLHCP or by otherwise specifically communicating to the PLHCP the substance of OSHA’s record-retention requirements.
Question 3: Do the Respirable Crystalline Silica and Respiratory Protection standards allow PLHCPs to provide employers with records of the results of spirometry tests for purposes of maintaining those records?
Reply: The Respirable Crystalline Silica and Respiratory Protection standards do not authorize the transfer of spirometry test or other medical records to employers. Unless the employee provides written authorization, the written opinion provided under the Respirable Crystalline Silica standards can only contain: (1) the date of the examination; (2) a statement that the examination has met the requirements of the silica standard; and (3) any recommended limitations on the employee’s use of respirators. 29 CFR 1910.1053(i)(6)(i)(A)-(C); 29 CFR 1926.1153(h)(6)(i)(A)-(C). If the employee gives written authorization, the standards allow the disclosure of two additional pieces of information via the opinion: (1) any recommended limitations on the employee’s exposure to respirable crystalline silica; and (2) a statement that the employee should be examined by a specialist if the B reader classifies the chest X-ray provided under the silica standard as 1/0 or higher or if the PLHCP otherwise recommends referral to a specialist. 29 CFR 1910.1053(i)(6)(ii)(A)-(B); 29 CFR 1926.1153(h)(6)(ii)(A)-(B). The standards limit the transfer of employee medical information by restricting what information can be included in the written opinion to the employer. The information is limited to encourage employee participation in medical surveillance by protecting the confidentiality of their medical information. Likewise, the written recommendation provided under Respiratory Protection standard can only contain: (1) any limitations on respirator use related to the medical condition of the employee, or relating to the workplace conditions in which the respirator will be used, including whether or not the employee is medically able to use the respirator; (2) the need, if any, for follow-up medical evaluations; and (3) a statement that the PLHCP has provided the employee with a copy of the PLHCP’s written recommendation. 29 CFR 1910.134(e)(6)(i)(A)-(C).
So what does all this mean? If you have a respiratory protection program, you must include a Medical Evaluation procedure/process in that written program. This means a “medical record” will be produced, and this “medical record” falls under 1910.1020(c)(6)(i)(B). This may sound simple, but “duration of employment plus 30 years” is a long time and will most likely require some special attention as to how this will be achieved. As the LOI states, we have options as to how we want to manage this requirement, but the ULTIMATE responsibility lies with the employer – NOT the contractor providing the service.
CLICK HERE for the 2019 LOI