- Standard Number:
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.
October 21, 2004
Mr. Gregory Norton
3708 Lake Arrowhead Drive
Harvey, LA 70058
Dear Mr. Norton:
Thank you for your letter of August 15, 2003 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs regarding the medical evaluation section of the respiratory protection standard 29 CFR 1910.134. Your questions are restated below, followed by OSHA's response. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence.
Question 1: Does OSHA require the medical questionnaire to be filled out on a yearly basis or may it just be amended as job or health conditions warrant?
Answer: The respiratory protection standard requires an initial medical evaluation to determine the employee's ability to use a respirator before the employee is fit tested or required to use the respirator in the workplace. At a minimum the employer must provide additional evaluations if an employee shows signs or symptoms that are related to their ability to wear a respirator. There is not a specific annual requirement for medical evaluations in the standard. However, the physician or other licensed healthcare provider (PLHCP) may prescribe annual tests to ensure employees' continued ability to wear a respirator.
Question 2: Is it allowable for an employee to go to their own doctor for a medical evaluation of their ability to wear a respirator if the employee is willing to cover the costs?
Answer: The standard requires the employer to select a PLHCP to perform the medical evaluations. Usually the employer has the evaluation performed by a company physician or through an arrangement with a local health care facility. The employer may also choose to use the employee's own physician to evaluate the employee's ability to wear a respirator, in which case, both the physician's fees and the employee's time must be paid by the employer. However, this arrangement is usually difficult to administer since the employer would need to establish a relationship with each physician and provide each physician with the necessary information. If the employer does not select the employee's own doctor or any physician the employee prefers as the PLHCP and the employee goes to a physician of his own choosing, the employer would not be required to accept the evaluation or pay for the evaluation.
Question 3: What information must the company provide to the employee for the physician to make a medical determination as to the employee's ability to wear a respirator?
Answer: The employer must provide the PLHCP with the information in paragraph (e)(5) of the standard. This information includes: the type and weight of the respirator to be used by the employee; the duration and frequency of respirator use; the expected physical work effort; additional protective clothing and equipment to be worn; and the temperature and humidity extremes that may be encountered. The PLHCP must also be provided with a copy of the company's respiratory protection program and a copy of the standard.
Question 4: Can the company dictate to the employee which type of testing must be done by their doctor in order to determine the employee's ability to wear a respirator?
Answer: Most employers use the medical questionnaire to determine an employee's ability to wear a respirator but the standard also allows employers to use a medical examination instead. OSHA requires that the content of the examination include, at least, the items covered in the questionnaire, but this is considered the minimum requirement for the medical evaluation. Any additional testing would be left to the discretion of the company's PLHCP.
Question 5: Does any provision exist to prevent employees from being disqualified or displaced if their ability to use the current type of company-provided respiratory protection is diminished?
Answer: The standard does not provide medical removal protection. However, if the PLHCP determines that an employee has a medical condition that places the employee's health at increased risk if a negative pressure respirator is worn, but the employee could wear a powered air purifying respirator (PAPR), then the employer must provide one. OSHA believes many workers who are medically unable to wear a negative pressure respirator will be able to use a PAPR. However, if it is determined that the employee cannot wear a PAPR either, then the employer cannot assign the employee to a position that would require the employee to wear a respirator.
Question 6: I am aware of at least one instance where the information provided by an employee on Appendix C (The OSHA Respirator Medical Evaluation Questionnaire) was shared with the human resources department. How can the issue of confidentiality be formally addressed to ensure the practice of sharing personal medical information is not ongoing and will not happen in the future?
Answer: The information in the medical questionnaire is considered a medical record and, like all medical records, it must not be shared with management personnel. The medical questionnaire clearly states "To maintain your confidentiality, your employer or supervisor must not look at or review your answers, and your employer must tell you how to deliver or send this questionnaire to the health care professional who will review it."
Your employer's Human Resources may have a policy on who may access employee medical records and for what reasons. You should check with your State professional boards to find out if there are any relevant state laws regarding confidentiality of employee medical records. Also, some National and State Health Care Professional organizations like the American Medical Association have ethics statements for healthcare professionals who are members of their organizations in regard to the confidentiality of medical records, and these organizations may serve as resources for you on this issue of confidentiality.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.
Richard E. Fairfax, Director
Directorate of Enforcement Programs