Employee Medical Records
The OSHA rules govern information rather than just traditional paper records and they govern 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 medical 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 preplacement physicals may need to be kept separate from the remainder of the employee medical record.)
Medical opinions, diagnoses, progress notes, and recommendations.
First-aid records.
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 the following:
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 whatever system is used must prevent the inadvertent release of information when OSHA or the union inspects a large number of records.