OSHA Recordkeeping Handbook - Msabc.net

§1904.35tions on employees’ and employee representatives’use of the injury and illness information.There is also a concern that employers may voluntarilygrant access to OSHA records to personsoutside their organization, who do not need theinformation for safety and health purposes. To protectemployee confidentiality in these circumstances,paragraph 1904.29(b)(10) requires employersgenerally to remove or shield employee namesand other personally identifying information whenthey disclose the OSHA forms to persons otherthan government representatives, employees, formeremployees or authorized employee representatives.Employers remain free to disclose unredactedrecords for purposes of evaluating a safety andhealth program or safety and health conditions atthe workplace, processing a claim for workers’compensation or insurance benefits, or carrying outthe public health or law enforcement functionsdescribed in section 164.512 of the final rule onStandards for Privacy of Individually IdentifiableHealth Information.OSHA believes that this provision protects employeeprivacy to a reasonable degree consistentwith the legitimate business needs of employersand sound public policy considerations....Misuse of the Records by Employees andTheir Representatives...While there may be instances where employeesshare the data with third parties who normallywould not be allowed to access the data directly,the final rule contains no enforceable restrictionson use by employees or their representatives.Employees and their representatives might reasonablyfear that they could be found personally liablefor violations of such restrictions. This would havea chilling effect on employees’ willingness to usethe records for safety and health purposes, sincefew employees would voluntarily risk such liability.Moreover, despite the concerns of commentersabout abuse problems, OSHA has not noted anysignificant problems of this type in the past. Thissuggests that, if such problems exist, they are infrequent.In addition, as noted in the privacy discussionabove, a prohibition on the use of the data byemployees or their representatives is beyond thescope of OSHA’s enforcement authority. For thesereasons, the employer may not require an employee,former employee or designated employee representativeto agree to limit the use of the recordsas a condition for viewing or obtaining copies ofrecords.OSHA has added a statement to the Log andIncident Report forms indicating that these recordscontain information related to employee health andmust be used in a manner that protects the confidentialityof employees to the extent possible whilethe information is used for occupational safety andhealth purposes. This statement is intended toinform employees and their representatives of thepotentially sensitive nature of the information inthe OSHA records and to encourage them to maintainemployee confidentiality if compatible withthe safety and health uses of the information.Encouraging parties with access to the forms tokeep the information confidential where possible isreasonable and should not discourage the use ofthe information for safety and health purposes.OSHA stresses, however, that the statement doesnot reflect a regulatory requirement limiting theuse of records by those with access under sections1904.35 and 1904.40.The Records Access Requirement and the ADA...Section 12112(d)(3)(B) of the ADA permits anemployer to require a job applicant to submit to amedical examination after an offer of employmenthas been made but before commencement of employmentduties, provided that medical informationobtained from the examination is kept in a confidentialmedical file and not disclosed except asnecessary to inform supervisors, first aid and safetypersonnel, and government officials investigatingcompliance with the ADA. Section 12112(d)(4)(C)requires that the same confidentiality protection beaccorded health information obtained from a voluntarymedical examination that is part of an employeehealth program.By its terms, the ADA requires confidentiality forinformation obtained from medical examinationsgiven to prospective employees, and from medicalexaminations given as part of a voluntary employeehealth program. The OSHA injury and illnessrecords are not derived from pre-employment orvoluntary health programs. The information in theOSHA injury and illness records is similar to thatfound in workers’ compensation forms, and maybe obtained by employers by the same processused to record needed information for workers’compensation and insurance purposes. The EqualEmployment Opportunity Commission (EEOC) recognizesa partial exception to the ADA’s strict confidentialityrequirements for medical informationregarding an employee’s occupational injury or150OSHA RECORDKEEPINGHANDBOOK