Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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.
a) Authorization To Release Covered Records
The OSHA rules provide that employees, their designated representatives, and
OSHA will have access to covered employee medical records. Access means the
right to examine and copy the records. If the employee is dead or legally
incapacitated, the employee’s legal representative may exercise all the employee’s
rights under the rules. A designated representative is any individual or organization
to whom the employee gives written authorization for access to his or her medical
records. A recognized or certified collective bargaining agent is automatically
treated as a designated representative without requiring written employee
authorization for access to some regulated records. This implied authorization does
not extend to employee medical records.
A designated representative must have the employee’s specific written consent to
have access to the employee’s medical records. This written authorization must
include the following:
Τhe name and signature of the employee authorizing the release of medical
information
The date of the written authorization
The name of the individual or organization that is authorized to release the
medical information
The name of the designated representative (individual or organization) that
is authorized to receive the released information
A general description of the medical information that is authorized to be
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