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.
