December 4, 2014

Mr. Mitch Merkel
1006 North Evergreen Drive
Iron Mountain, MI 49801

Dear Mr. Merkel:

Thank you for your July 16, 2013, letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs and subsequent telephone conversations with a member of my staff. Your letter requested clarification on whether contractor associations and labor unions can take responsibility to maintain employees' medical evaluations under OSHA's Respiratory Protection standard, 29 CFR 1910.134. Please excuse the delay in our response. Your paraphrased questions and our responses are presented below.

Question 1: Can the role and/or responsibility of the employer to maintain medical evaluations be managed by a labor union or contractor association?

Response: Under OSHA's Respiratory Protection standard, the employer is responsible for determining whether an employee is medically fit to wear a respirator. [See 29 CFR 1910.134(e)]. However, 29 CFR 1910.134 is a performance-based standard, and employers have flexibility to determine how they meet the requirements. Employers also have discretion as to who manages and maintains employee medical evaluations and records. For example, the employer may select a physician or other licensed health care professional (PLHCP) to maintain employee medical records.

Please be aware that the medical evaluation questionnaire required by Section 1910.134 is considered a medical record under OSHA's regulation at 29 CFR 1910.1020, Access to employee exposure and medical records. [See 29 CFR 1910.1020(c)(6)(i)(A)]. Under the Respiratory Protection standard, the employer only retains the PLHCP's written recommendation. [See 1910.134(e)(6)(i). The questionnaire and findings may also be maintained by the employer's medical office consistent with the requirements of 29 CFR 1910.1020 if the medical office is administratively separate from the employer's central administration offices to maintain confidentiality. [See Section IX.E of OSHA's Respiratory Protection Directive, CPL 02-00-158 (June 26, 2014).].

In general, in order to maintain confidentiality, an employee's medical records must not be shared without the employee's written consent. Section 1910.1020(e) does provide that medical records can be accessed by the employee, his or her designated representative, or representatives of the OSHA Assistant Secretary. Please know that a recognized or certified collective bargaining agent is treated automatically as a designated representative without regard to written employee authorization. [See 29 CFR 1910.1020(c)(3)]. These parties should make their requests for copies of the questionnaire to the PLHCP, and such requests must be made pursuant to the requirements in Section 1910.1020(e). Entities not specifically listed in Section 1910.1020(e) can only access employee medical records through individual employee written consent.

Section 1910.1020(b)(3) provides that each employer must assure that the preservation and access requirements of 29 CFR 1910.1020 are complied with regardless of how the records are made or maintained. The employer should ensure that a relationship is in place with the record holder so that access to records can be easily obtained. You should also know that an employer's Human Resources office may have a policy on who may access employee medical records and provide guidelines for access. For example, many Human Resource offices have policies in place that address requirements under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). For more information on medical confidentiality, you may wish to contact the U.S. Department of Health and Human Services, Office for Civil Rights, which enforces the HIPAA Privacy Rule at 45 CFR 160, 164. They can be reached at 1-800-368-1019. Also, some National and State Health Care Professional organizations, such as the American Medical Association, have ethical guidelines regarding patients' confidentiality.

Question 2: If a medically qualified employee works for employer (A) then quits, and then goes to work for employer (B), can either the labor union or a contractor association (e.g. medical clinic, professional or trade association) maintain a copy of the PLHCP's written recommendation from the employee's medical evaluation and share this information with future employers?

Response: Please see Section IX.E of OSHA's Respiratory Protection Directive, CPL 02-00-158 (June 26, 2014). In this situation, employer (B) may obtain a copy of the PLHCP's written recommendation from the PLHCP of employer (A), or from the individual employee. The transient (e.g., temporary or construction worker) employee's employer may accept an existing written medical recommendation of the employee's ability to use a respirator, as determined by their previous employer's PLCHP, only if the work conditions and type/weight of the respirator remains the same, is appropriate for use at their new work site, and meets the requirements of 29 CFR 1910.134(e)(1). The current employer must exercise due diligence when receiving another employer's PLHCP's written recommendations. However, please be aware that medical records of employees who have worked for less than one year for the employer need not be retained beyond the term of employment if they are provided to the employee upon the termination of employment.

Again, OSHA's regulation at 29 CFR 1910.1020 does not permit the disclosure of an employee's medical record by the employer, unless the individual requesting access is the employee, his or her designated representative, or OSHA. In general, the written recommendation should be provided by the PLHCP, but can be provided by the employer to the employee. Copies of medical records provided by the employee are at the discretion of that employee.

Question 3: Should an employer question employees about medical changes or issues since they last completed their medical evaluation questionnaire?

Response: No, 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." Accordingly, if an employer asks an employee about medical changes or issues since their last completed medical evaluation questionnaire, that employer would be seeking information that is confidential. Also, it is the employer's responsibility to decide if the employee needs a medical reevaluation. The standard lists four conditions which trigger a medical reevaluation: an employee reports signs or symptoms related to the ability to wear a respirator; the PLHCP, administrator or supervisor determines it is necessary; information from the respiratory protection program indicates a need for reevaluation; or a change in workplace conditions substantially increases the physiological burden placed on the employee. [See 29 CFR 1910.134(e)(7)]. One suggestion for verifying the medical evaluation recommendation from a prior employer is to contact either the employer or the PLHCP noted on the recommendation.

Question 4: Can the labor union or contractor association make the medical evaluation questionnaire an annual requirement?

Response: 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 and uses the respirator for the first time. [See 29 CFR 1910.134 (e)(1)]. An annual or periodic medical reevaluation is not an automatic requirement of the Respiratory Protection standard. However, the standard does not prohibit an employer from implementing more frequent (e.g. annual) medical evaluations. At a minimum, the employer must provide an additional evaluation if any of the criteria listed in 29 CFR 1910.134(e)(7) are met, as described above.

Question 5: Does the PLHCP's written recommendation need to specify the manufacturer of the respirator or is the type (half-mask) of respirator sufficient to certify the employee for all half-mask respirators regardless of the manufacturer?

Response: No. The PLHCP's written recommendation does not need to specify the manufacturer of the respirator. The employer must provide the PLHCP with the supplemental information listed in Section 1910.134(e)(5). 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 OSHA's Respiratory Protection standard.

Please be aware that the Michigan Occupational Safety & Health Administration (MIOSHA) operates an OSHA-approved State Plan which is responsible for the adoption and enforcement of standards throughout the State. Michigan standards, for the most part, are identical to Federal OSHA standards, but the State may have additional requirements and enforcement policies. Information on the MIOSH program is available at https://www.michigan.gov/miosha. Please contact MIOSHA directly for further information and to discuss your specific compliance issues.

Michigan Department of Licensing and Regulatory Affairs
Michigan Occupational Safety and Health Administration (MIOSHA)
P.O. Box 30645
Lansing, MI 48909-8145
Phone: (517) 322-1831

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Enforcement Programs at (202) 693-2100.

Sincerely,

Thomas Galassi, Director
Director of Enforcement Programs