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TRADE SECRETS

While keeping track of exposures to known chemicals can be a daunting problem, the exact constituents in some chemical processes are trade secrets: "Any confidential formula, pattern, process, device, or information or compilation of information that is used in an employer's business and that gives the employer an opportunity to obtain an advantage over competitors who do not know or use it." With certain exceptions, employers and manufacturers of chemicals are allowed to withhold trade secret information if they warn the health care provider, employee, or designated representative that the information has been deleted. When information is withheld, the employer or manufacturer must provide an MSDS with "all other available information on the properties and effects of the toxic substance."

There are circumstances when medical care providers need to know the specific chemical and concentration to which an employee has been exposed. If there is a medical emergency and the "specific chemical identity of a toxic substance is necessary for emergency or first-aid treatment," the employer or manufacturer must provide the needed information. The medical care providers obtaining this information must not disclose it except as necessary to provide the needed medical care. The employer or manufacturer may not withhold the information in an emergency but may require that the medical providers sign a confidentiality agreement as soon as circumstances permit. Irrespective of the existence of such a written agreement, disclosing such information is illegal in most states and can subject the violator to substantial civil damages.

The OSHA rules also allow access to trade secret information in nonemergency situations if the request is in writing and describes with reasonable detail one or more of the following occupational health needs for the information:

--To assess the hazards of the chemicals to which employees will be exposed;

--To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels;

--To conduct pre-assignment or periodic medical surveillance of exposed employees;

--To provide medical treatment to exposed employees;

--To select or assess appropriate personal protective equipment for exposed employees;

--To design or assess engineering controls or other protective measures for exposed employees; and

--To conduct studies to determine the health effects of exposure.

The request must explain in detail why the disclosure of the specific chemical identity is essential. This explanation must include the reasons that the disclosure of the properties and effects of the chemical, the means of controlling exposure, the methods of analyzing exposure, and the methods of diagnosing and treating exposure to the chemical are not sufficient. The request should describe the procedures for maintaining the confidentiality of the disclosed information. The person receiving the information must agree, in a written confidentiality agreement, not to use the trade secret information for any purpose other than the health needs asserted and not to release the information except to OSHA. If the employer or manufacturer refuses to disclose the requested information, the requesting person may request OSHA to force the employer to disclose the needed information.

Irrespective of the contents of any confidentiality agreements, trade secret information may be disclosed to OSHA if the person receiving the information believes that such a disclosure is necessary to workplace safety. The physician or other person disclosing such information to OSHA must inform the employer or manufacturer that supplied the information that it will be given to OSHA. This warning may be given before disclosure to allow the employer or manufacturer time to request that OSHA determine if such disclosure is warranted. The employer or manufacturer may also be informed at the same time that the disclosure is made to OSHA. The employer or manufacturer may still object to OSHA's use of the information, but this will ensure that an OSHA official learns of the toxic exposure.

Physicians in occupational medicine practice have a duty to inquire into the cause of toxic symptoms observed in their patients. Such physicians must also respect the employer's need to protect its trade secrets. Many chemical processes are not patented, either because the disclosures necessary to obtain a patent would give away the company's competitive edge or because the process is not sufficiently different from known processes to qualify for patent protection. In most cases, this is not a problem because it is not the identity of the chemicals that matters as much as the way they are used. In some circumstances, however, the identity of the chemical itself would be enough to allow competitors to copy the process. An occupational medicine physician should inquire about potential trade secret problems before agreeing to provide services to an employer. Any necessary confidentiality agreements should be part of the contract between the physician and the employer. This will avoid misunderstandings if the physician should inadvertently identify a chemical that the employer considers a trade secret. Such an agreement should make clear that the employer understands that under some circumstances the physician may be required to disclose trade secret information to OSHA.


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