EMPLOYEE MEDICAL RECORDS
- The OSHA rules govern information rather than just traditional paper
records and several types of records in addition to medical records. For the
purposes of these rules, a record includes "any item, collection, or grouping
of information regardless of the form or process by which it is maintained
(e.g., paper document, microfiche, microfilm, X-ray film, or automated data
processing)." A medical record means "a record concerning the health status of
an employee which is made or maintained by a physician, nurse, or other health
care personnel or technician," including:
- Medical and employment questionnaires or histories (including job
description and occupational exposures).
The results of medical examinations (preemployment, preassignment,
periodic, or episodic) and laboratory tests, including chest and other X-ray
examinations taken for the purposes of establishing a baseline or detecting
occupational illness, and all biological monitoring not defined as an "employee
exposure record." (Under the ADA, information obtained from preemployment
physicals may need to be kept separate from the remainder of the employee
Medical opinions, diagnoses, progress notes, and recommendations.
Descriptions of treatments and prescriptions.
Employee medical complaints.
Information that is not covered by these rules (and thus not subject to
the access and retention provisions) includes:
- Physical specimens (e.g., blood or urine samples) that are routinely
discarded as a part of normal medical practice.
Records concerning health insurance claims if maintained separately
from the employer's medical program and its records and not accessible to the
employer by employee name or other direct personal identifier (e.g., social
security number, payroll number).
Records created solely in preparation for litigation, which are
privileged from discovery under the applicable rules of procedure or evidence.
Records concerning voluntary employee assistance programs (alcohol,
drug abuse, or personal counseling programs) if maintained separately from the
employer's medical program and its records.
It would seem that records of employee assistance programs that are mandated
for employees with identified problems would be subject to the rules. It is
usually argued, however, that these programs are voluntary in that the employee
can always choose to lose his or her job.
In all cases information will be subject to the provisions of these rules if it
is maintained in the same record as covered information. Even information
prepared for litigation would lose its privilege if kept in the patient's
medical record. This is a general rule of evidence and is not specific to the
OSHA-regulated information. Given the potentially broad access to covered
records, it is especially important that information on voluntary employee
assistance programs be kept separate from covered medical information. Ideally
this means separate folders in separate filing systems. This level of physical
separation is not legally mandated, but it prevents the inadvertent release of
information when OSHA or the union inspects a large number of records.