Mark Lies Published in Occupational Health & Safety

The lead article in the June issue of Occupational Health and Safety Magazine containing Mark's article ("Employee Access to Workplace Medical and Exposure Records: OSHA's 29 CFR 1910.1020 is a trap for the unwary. ") on an employer's duty to make medical records and exposure records that it maintains on its employees available to employees, their attorneys, OSHA and, with certain restrictions, unions, upon request. The regulation also requires the preservation of these records for the length of employment plus 30 years. Unfortunately, many employers have no inkling of this obligation and OSHA frequently issues citations for failure to make the records available although it impacts every client who maintains these records. This can often be a vehicle for OSHA citations, as well as worker's compensation claims or product liability litigation. These same regulations impose significant employer obligations to retain these records for periods of time well past the end of the employment relationship and to make them available to former employees. In addition, such records may be accessed by the employee's legal representative, including union representatives, under certain conditions.

He notes: "This regulation has far-reaching impact for employers. First, failure to comply may give rise to OSHA citations. Second, the improper disclosure of records may give rise to employee claims of invasion of privacy. Third, these records may provide an employer with a defense to future worker's compensation claims (by proving lack of exposure to a hazardous substance), which will be lost if the records are not maintained. Fourth, in this era of claims by employees that employers lost or destroyed evidence the employee could use to maintain a claim against a third party (e.g., a chemical manufacturer or supplier), failure to maintain the records could give rise to a claim that the employer "spoiled" evidence to support such a third-party complaint and that the employer is responsible for damages outside of worker's compensation. There has been increased litigation by plaintiffs who claim that evidence that could have supported a claim against a third party has been subject to spoliation, and they have sought to maintain actions against the responsible parties, including their employers. Employers must become aware of the provisions of this complex regulation in order to avoid the many liabilities that can result from non-compliance. They should develop a policy and practices to evidence compliance."