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.

April 16, 1980

MEMORANDUM FOR:   GABRIEL GILLOTTI
                  Regional Administrator

FROM:             ROGER CLARK
                  Director Field Coordination

SUBJECT:          Violation of 1910.1018(n)(1)(ii) at Phelp's Dodge,
                  Case File C-7491-198

Arsenic is a proven carcinogen. The current status of scientific knowledge does not permit the prediction of a safe exposure level. The permissible exposure level for arsenic, 10 ug/m3, is not a safe level, but a feasible level. The arsenic standard, 1910.1018, therefore, contains various industrial hygiene provisions in addition to the permissible exposure limit to further reduce the cancer risk to the employees. As such, medical surveillance is a vital component of the standard because an employee must participate in the medical surveillance program to receive its benefits, the standard encourages participation by requiring that the medical examinations be provided by the employer without cost to the employees, without loss of pay and at a reasonable time and place. An employer's failure to give these minimal provisions can result in a serious health risk due to lack of employee participation in the medical program.

When dealing with compliance with these matters of payment and convenience, we first recommend that the labor bargaining unit and management try to work out the differences equitably. However, because of the hazard that is created by failure to comply with the provisions, OSHA must cite where the violations occur.

In the case at hand, OSHA requires that the employees be paid for time spent taking medical examinations including time traveling when the exams are off work hours. It appears that the situation will not be corrected by local bargaining and that the continued failure to pay employees will jeopardize the protection provided by the medical surveillance program. Therefore, a citation is warranted. The classification should be serious. The amount of pay should be based on the employees wages. The citation should read "...failure to provide the physical examination without cost to the employee".

(Page 2 first paragraph unreadable. Next paragraph as follows:)

To calculate the gravity, you should update the employers "good faith" and "history of previous violations" from the recent inspection activity at the plant. A high probability should be given if worker do not participate in the medical surveillance program due to the lack of compensation or inconvenience; a low probability should be given if the employees receive examinations despite the lack of compensation and inconvenience. If you have any further questions feel free to contact us.