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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.
December 21, 1994
Mr. Michael A. Amen, C.I.H, C.H.M.M.
Corporate Director, Health, Safety, Training Envirocon, Inc.
500 Taylor Street P.O. Box 8243
Missoula, MT 59807
Dear Mr. Amen:
Thank you for your letter of July 6, 1994, regarding Occupational Health and Safety Administration's (OSHA's) Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard, 29 Code Federal Regulations (CFR) 1910.120. Please accept my apology for the delay in this response.
In your letter, you request interpretations to the requirement in paragraph (f)(3)(i)(C) to provide medical examinations to employees upon termination of employment, particularly where the employee has resigned without formal notice and returns to the employer sometime later to request the examination. Each of your specific questions are addressed in turn below.
A. Please provide policy guidance on reasonable timeliness of a request to provide termination medical examinations.
OSHA considers within 30 calendar days before or after the date of termination of employment as reasonable timeliness in providing termination medical examinations. (See for example, paragraph (l)(4)(ii) of OSHA's Asbestos Standard, 29 1910.1001.) The employer must be able to show that the employee was offered the examination and was informed of the time frame in which the examination was being offered.
In the event that an employee leaves without notice, the employer should document that a good-faith effort was made to contact the employee for the purpose of offering the examination.
B. What must the employee provide to the physician after a long-term absence?
The employee is not obligated to provide information to the physician. Information describing the employee's assigned job duties, potential hazardous exposures, and use of protective equipment must be provided by the employer who is responsible for providing the examination, as required by paragraph (f)(6) of HAZWOPER. In the event that an employee returns to work after a long absence, the employer is required to provide a preplacement physical; information to be provided to the physician would include information on the employee's job duties while previously employed by that employer, as well as information on current job duties and anticipated hazardous exposures.
C. What documents making the physical available to the employee.
Several forms of documentation could be used to support the employer's compliance with HAZWOPER regarding termination physicals; such documentation could include letters addressed to the employee's last known residence, telephone logs, and written procedures describing the employer's policy for providing termination exams, so long as the written procedures are routinely provided to all employees.
D. What is the recourse if an ex-employer refuses an ex-employee a termination physical when they are getting it done to satisfy another employer requirement for a preplacement physical.
OSHA believes that interpreting the HAZWOPER requirement as allowing employers to implement reasonable time frames for providing termination physicals addresses this concern expressed in your letter. Please note also that HAZWOPER, as well as other OSHA health standards, require that preplacement examinations be provided by the current, and not prior, employers. This is important to ensure that the examining physician is provided accurate information regarding the employees assigned job duties and potential exposures to workplace hazards.
We hope that this clarifies your understanding of your obligations under the HAZWOPER standard for providing termination physicals. If you have additional questions, please feel free to contact the [Office of Health Enforcement at (202) 693-2190].
[Director Office of Health Enforcement]