• Key terms about medical and exposure records are defined in this section.

Access: The right and opportunity to examine and copy.

Designated representative: Any individual or organization to whom an employee gives written authorization to exercise a right of access. For the purposes of access to employee exposure records and analyses using exposure or medical records, a recognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization.

Employee: A current employee, a former employee, or an employee being assigned or transferred to work where there will be exposure to toxic substances or harmful physical agents. In the case of a deceased or legally incapacitated employee, the employee’s legal representative may directly exercise all the employee’s rights pertaining to 1910.1020.

Employee exposure record: A record containing any of the following kinds of information:

• Environmental (workplace) monitoring or measuring of a toxic substance or harmful physical agent, including personal, area, grab, wipe, or other form of sampling, as well as related collection and analytical methodologies, calculations, and other background data relevant to interpretation of the results obtained;
• Biological monitoring results which directly assess the absorption of a toxic substance or harmful physical agent by body systems (e.g., the level of a chemical in the blood, urine, breath, hair, fingernails, etc.) but not including results which assess the biological effect of a substance or agent or which assess an employee’s use of alcohol or drugs;
• Safety Data Sheets indicating that the material may pose a hazard to human health; or
• In the absence of the above, a chemical inventory or any other record which reveals where and when used and the identity (e.g., chemical, common, or trade name) of a toxic substance or harmful physical agent.

Employee medical record: A record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel or technician, including:

• Medical and employment questionnaires or histories (including job descriptions and occupational exposures);
• The results of medical examinations (pre-employment, pre-assignment, periodic, or episodic) and laboratory tests (including chest and other X-ray examinations taken for the purpose of establishing a baseline or detecting occupational illnesses and all biological monitoring not defined as an “employee exposure record”);
• Medical opinions, diagnoses, progress notes, and recommendations;
• First aid records;
• Descriptions of treatments and prescriptions; and
• Employee medical complaints.

“Employee medical record” does not include medical information in the form of: (1) Physical specimens (e.g., blood or urine samples) which are routinely discarded as a part of normal medical practice; (2) Records concerning health insurance claims if maintained separately from the employer’s medical program and its records, and not accessible to the employer by employee name or other direct personal identifier (e.g., Social Security number, payroll number, etc.); (3) Records created solely in preparation for litigation which are privileged from discovery under the applicable rules of procedure or evidence; or (4) Records concerning voluntary employee assistance programs (alcohol, drug abuse, or personal counseling programs) if maintained separately from the employer’s medical program and its records.

Exposure or exposed: An employee is subjected to a toxic substance or harmful physical agent in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.), and includes past exposure and potential (e.g., accidental or possible) exposure, but does not include situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations.

Record: Any item, collection, or grouping of information regardless of the form or process by which it is maintained (e.g., paper document, microfiche, microfilm, X-ray film, or automated data processing).

Toxic substance or harmful physical agent: Any chemical substance, biological agent (bacteria, virus, fungus, etc.), or physical stress (noise, heat, cold, vibration, repetitive motion, ionizing and non-ionizing radiation, hypo- or hyperbaric pressure, etc.) which:

• Is listed in the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS); or
• Has yielded positive evidence of an acute or chronic health hazard in testing conducted by, or known to, the employer; or
• Is the subject of a safety data sheet kept by or known to the employer indicating that the material may pose a hazard to human health.