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LIMITATIONS ON ACCESS TO MEDICAL RECORDS

When an employee requests access to his or her medical records, the physician may recommend that the employee discuss the records with the physician, accept a summary of material facts and opinions in lieu of the records requested, or accept release of the requested records only to a physician or other designated representative. If the employee persists in his or her request to see the complete record the rules provide that release may be made to a designated representative rather than to the employee:

Whenever an employee requests access to his or her employee medical records, and a physician representing the employer believes that direct employee access to information contained in the records regarding a specific diagnosis of a terminal illness or a psychiatric condition could be detrimental to the employee's health, the employer may inform the employee that access will only be provided to a designated representative of the employee having specific written consent, and deny the employee's request for direct access to this information only. Where a designated representative with specific written consent requests access to information so withheld, the employer shall assure the access of the designated representative to this information, even when it is known that the designated representative will give the information to the employee.(29 CFR sec. 1910.20)

This provision presupposes that an employee's medical records may contain information that has not been provided to the employee. Case law, and related OSHA regulations on informing employees of medically significant information, would seem to mitigate against the right of an occupational medicine physician to withhold information from a patient. While some state laws allow withholding potentially damaging information from patients, OSHA allows the physician only to impede, not prevent, a patient's access to his or her records. Ethical questions aside, requiring a patient to get his or her records indirectly and then having those records contain an unpleasant surprise would certainly increase the chance that the patient will see an attorney.

PRESERVATION OF RECORDS

Unless a specific occupational safety and health standard provides a different period of time, ... the medical record for each employee shall be preserved and maintained for at least the duration of employment plus thirty (30) years. This requirement does not apply to health insurance claims records maintained separately and to first aid records (not including medical histories) of one-time treatment and subsequent observation ... if made on-site by a non-physician and if maintained separately from the employer's medical program and its records.

The medical records of employees who have worked for less than (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 employment.

Nothing in this section is intended to mandate the form, manner, or process by which an employer preserves a record as long as the information contained in the record is preserved and retrievable, except that chest X-ray films shall be preserved in their original state.

The OSHA rules also provide for the maintenance of records on employees whose employer is no longer in business. If an employer goes out of business, its employee's medical records shall be transferred to the successor employer, who must receive and maintain the records. This can pose problems if the successor employer chooses to sever the relationship with the private physician or clinic and take possession of the records. The records must be surrendered, but it is important, as much as possible, to comply with state laws governing the transfer or release of medical information. It may be advisable to notify the employees that their records will be transferred and that they should contact the new employer if they have questions or objections. Since the successor employer has the right to the records of all previous employees, not just those whom it rehires, there may be employees who would want the physician to retain a copy of the records and continue providing medical care. The physician or clinic may also want to retain copies of the records for medical-legal concerns.

When there is no successor employer, the employees must be notified of their rights of access to the records at least three months prior to the cessation of the employer's business. The employer must also transfer "the records to the Director of the National Institute for Occupational Safety and Health (NIOSH) if so required by a specific occupational safety and health standard" or "notify the Director of NIOSH in writing of the impending disposal of records at least three (3) months prior to the disposal of the records." The physician or clinic maintaining the records should assure that these obligations have been carried out.


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