OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

29 CFR 1910.1029

(Letter not dated - possibly written and signed around May 4, 1978)

Mr. Samuel R. Born
Ice Miller Donadio & Ryan
10th Floor, 111 Monument Circle
Indianapolis, Indiana 46204

Dear Mr. Born:

Mr. J. Fred Keppler, Area Director of the Occupational Safety and Health Administration (OSHA) in Indianapolis, Indiana forwarded your January 18, 1978, letter concerning 29 CFR 1910.1029(j) to me for reply. We have answered each of your questions according to your numbering system. All questions pertain to the coke oven emissions standard, 29 CFR 1910.1029:

I. 29 CFR 1910.1029(j) Medical Surveillance

A. The employee has a right to waive portions of the required medical examination.

B. The employee can waive the examination for a period of time the employee chooses. However, the employee has the right to change his mind about the waiver and take the medical examination on the next scheduled round.

A number of different reasons may cause an employee to refuse an examination. For example, at the time of initial assignment an employee may simply not fully understand the risks or hazards, and may come to appreciate them only after a period of time on the job. Because explanation of the medical examination at the time of each exam may have educational value, we recommend that the employee be informed of the medical examination on each round, regardless of waiver.

II. 29 CFR 1910.1029(j)(2)(i)

The periodic medical examinations may consist of an update rather than re-completion of all aspects of the work and medical history required in subsection (j)(2)(i) as long as a copy of the previous history is physically in the hands of the examiner at the time of the update as well as in the hands of the physician reviewing the examination results (it is unacceptable for the history to be stored at some distant location) and the examiner exert some effort reviewing, asking additional questions and repeating selected portions of this history at each examination to insure that over period of several examinations the best possible history is obtained.

III. 29 CFR 1910.1029(j)(5)(i)

As specified in 29 CFR 1910.1029(j)(5)(iii), the employer shall provide a copy of the written medical opinion to the employee, but it is likely that there will be differences between the limited information that the employer has and the complete medical examination results. We interpret 29 CFR 1910.1029(j)(5)(i) concerning information to the employee to mean that the physician must provide an oral opinion on the complete results of the medical examination. However, under stressful circumstances simple oral reporting of results may be inadequate and may not provide understanding. Therefore, we recommend that the employee be given a written explanation of the physician's findings and the employee be afforded an opportunity to discuss the findings with the physician.

IV. 29 CFR 1910.1029(p)

Subparagraph 29 CFR 1910.1029(j)(2)(vii) and (j)(3)(ii) requires that the medical examinations include a sputum cytology examination. The physician is free to use professional judgement on the procedure for making the sputum cytology examination. Appendix II, included with the regulation, is not intended to create any additional obligations not otherwise imposed or to detract from any existing regulation. The appendices are guidelines for good procedure.

Appendix II, paragraph C on Sputum Cytology recommends a minimum of three samples to be collected by the subject at home. The segregation of the samples is unnecessary when using the following method. A qualified person must properly instruct the employee on the collection technique. The difference between saliva of the mouth and upper respirator tract and sputum of a deep cough must be made plain. The employee should collect one specimen each morning just after awakening on three successive mornings. The employee should deposit no more than one teaspoon of material in the cytology fixature container each morning. About 85-95% of smokers will produce adequate samples for sputum examination. Non-smokers frequently will not be able to produce sputum and additional methods, such as aerosol inhalation, may be needed; if so, the samples may have to be collected in an office or clinic rather than at home.

[This document was edited on 8/18/99 to strike information that no longer reflects OSHA policy.]

V. 29 CFR 1910.1029(j)(3)(i), (iii) and (iv)

Permanently laid-off employees need not be included in the Medical Surveillance Program 29 CFR 1910.1029(j). Temporarily laid-off employees must be included in the Medical Surveillance Program.

The risk to a coke oven worker from job related disease does not cease when he stops working because of lay-off or retirement. We recommend that the continued employee risk be considered when establishing the employer Medical Surveillance Program.

VI. This standard does not address the duties of an employer in the event one of its employees is advised by a physician that he should no longer work in the regulated area even if he uses respirators and/or other protective equipment. At the time the standard was written and promulgated, OSHA felt this matter would be best decided between the employer and the employee based on facts of the individual case. However, we recommend that the employer allow the employee to move to a job out of the hazardous area without loss in pay.

I hope this answers your questions; feel free to write if you have any others.

Sincerely,

Donald E. MacKenzie
Director