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. Whereas 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.
This section discusses the requirements for keeping and disclosing OSHA- regulated records only. Many of these medical records are for work- related illnesses or injuries and are covered under the workers’ compensation laws of the state. These laws differ from state to state, but typically they allow access to injury records to a much larger group of people. This is discussed further in the Workers’ Compensation section of this section.