September 18, 2019

Mary C. Townsend, Dr.P.H.
M.C. Townsend Associates, LLC
289 Park Entrance Drive
Pittsburgh, Pennsylvania 15228

Dear Dr. Townsend:

Thank you for your letter to the Occupational Safety and Health Administration’s (OSHA) Directorate of Enforcement Programs, regarding the retention of spirometry records under OSHA’s Respirable Crystalline Silica standards, 29 CFR 1910.1053 and 29 CFR 1926.1153, and OSHA’s Respiratory Protection standard, 29 CFR 1910.134. This letter constitutes OSHA’s interpretation only of the requirements herein and may not be applicable to any situation not delineated within your original response. Your questions are summarized below, followed by the reply.

Background: Your company provides National Institute for Occupational Safety and Health (NIOSH) approved spirometry training to physicians or other licensed health care professionals (PLHCP). You require clarification to determine if spirometry test results constitute a medical record as well as who is responsible for maintaining medical records.

Question 1: Are spirometry test results considered an employee medical record and are these results required to be maintained for the duration of employment plus 30 years per OSHA’s Access to Employee Exposure and Medical Records standard (29 CFR 1910.1020)?

Reply: Spirometry test results are the product of medical examinations and are considered a medical record as defined by 29 CFR 1910.1020(c)(6)(i)(B). 29 CFR 1910.1020(d) states that each employee’s medical record must be preserved and maintained for at least the duration of employment plus 30 years with the exception of employees who have worked for less than one year and have been provided their medical records upon the termination of employment. See 29 CFR 1910.1020(d)(1)(i) and [(d)(1)(i)(C)].

Question 2: Where an employer contracts with a PLHCP to provide spirometry tests to employees, who is responsible for maintaining records of the results for such tests?

Reply: 29 CFR 1910.1020(b)(3) provides that each employer must assure the preservation and access requirements of 29 CFR 1910.1020 are complied with regardless of the manner in which the records are made or maintained. Where an employer contracts with a PLHCP to provide spirometry tests to employees, the employer is responsible for ensuring the retention of records in the possession of the PLHCP. An employer can fulfill this obligation by including the retention requirement in the agreement between the employer and the PLHCP or by otherwise specifically communicating to the PLHCP the substance of OSHA’s record-retention requirements.

Question 3: Do the Respirable Crystalline Silica and Respiratory Protection standards allow PLHCPs to provide employers with records of the results of spirometry tests for purposes of maintaining those records?

Reply: The Respirable Crystalline Silica and Respiratory Protection standards do not authorize the transfer of spirometry test or other medical records to employers. Unless the employee provides written authorization, the written opinion provided under the Respirable Crystalline Silica standards can only contain: (1) the date of the examination; (2) a statement that the examination has met the requirements of the silica standard; and (3) any recommended limitations on the employee’s use of respirators. 29 CFR 1910.1053(i)(6)(i)(A)-(C); 29 CFR 1926.1153(h)(6)(i)(A)-(C). If the employee gives written authorization, the standards allow the disclosure of two additional pieces of information via the opinion: (1) any recommended limitations on the employee’s exposure to respirable crystalline silica; and (2) a statement that the employee should be examined by a specialist if the B reader classifies the chest X-ray provided under the silica standard as 1/0 or higher or if the PLHCP otherwise recommends referral to a specialist. 29 CFR 1910.1053(i)(6)(ii)(A)-(B); 29 CFR 1926.1153(h)(6)(ii)(A)-(B). The standards limit the transfer of employee medical information by restricting what information can be included in the written opinion to the employer. The information is limited to encourage employee participation in medical surveillance by protecting the confidentiality of their medical information. Likewise, the written recommendation provided under Respiratory Protection standard can only contain: (1) any limitations on respirator use related to the medical condition of the employee, or relating to the workplace conditions in which the respirator will be used, including whether or not the employee is medically able to use the respirator; (2) the need, if any, for follow-up medical evaluations; and (3) a statement that the PLHCP has provided the employee with a copy of the PLHCP's written recommendation. 29 CFR 1910.134(e)(6)(i)(A)-(C).

In addition, you may want to consider whether other federal or state laws prevent the transfer of spirometry results to an employer without employee consent. For example, the regulations issued pursuant to the Health Insurance Portability and Accountability Act (HIPAA) allow medical providers to provide medical information to employers without employee consent only in limited circumstances. HIPAA does not allow a medical provider to disclose protected health information to an employer without an employee’s consent unless, among other things, the employer needs the information in order to comply with OSHA standards. See 45 CFR 164.512(b)(1)(v)(C). Employers do not need employee spirometry records in order to comply with the Respirable Crystalline Silica or Respiratory Protection standards. For more information on medical confidentiality under HIPAA, 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.

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 ensure 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 Office of Health Enforcement at (202) 693-2190.

Sincerely,

Patrick J. Kapust, Acting Director
Directorate of Enforcement Programs

[Corrected 11/13/2019]