PART 1913—RULES OF AGENCY PRACTICE AND PROCEDURE CONCERNING OSHA ACCESS TO EMPLOYEE MEDICAL RECORDS Authority: 29 U.S.C. 657; 5 U.S.C. 553; 5 U.S.C. 301; Secretary of Labor's Order No. 8-76 (41 FR 25059), 5-2002 (67 FR 65008), or 1-2012 (77 FR 3912) as applicable. § 1913.10 Rules of agency practice and procedure concerning OSHA access to employee medical records. (a) General policy. (b) Scope and application. (2) For the purposes of this section, “personally identifiable employee medical information” means employee medical information accompanied by either direct identifiers (name, address, social security number, payroll number, etc.) or by information which could reasonably be used in the particular circumstances indirectly to identify specific employees (e.g., exact age, height, weight, race, sex, date of initial employment, job title, etc.). (3) This section does not apply to OSHA access to, or the use of, aggregate employee medical information or medical records on individual employees which is not in a personally identifiable form. This section does not apply to records required by 29 CFR part 1904, to death certificates, or to employee exposure records, including biological monitoring records treated by 29 CFR 1910.1020(c)(5) or by specific occupational safety and health standards as exposure records. (4) This section does not apply where OSHA compliance personnel conduct an examination of employee medical records solely to verify employer compliance with the medical surveillance recordkeeping requirements of an occupational safety and health standard, or with 29 CFR 1910.1020. An examination of this nature shall be conducted on-site and, if requested, shall be conducted under the observation of the recordholder. The OSHA compliance personnel shall not record and take off-site any information from medical records other than documentation of the fact of compliance or non-compliance. (5) This section does not apply to agency access to, or the use of, personally identifiable employee medical information obtained in the course of litigation. (6) This section does not apply where a written directive by the OSHA Medical Records Officer authorizes appropriately qualified personnel to conduct limited reviews of specific medical information mandated by an occupational safety and health standard, or of specific biological monitoring test results. (7) Even if not covered by the terms of this section, all medically related information reported in a personally identifiable form shall be handled with appropriate discretion and care befitting all information concerning specific employees. There may, for example, be personal privacy interests involved which militate against disclosure of this kind of information to the public ( See, (c) Responsible persons Assistant Secretary. (2) OSHA Medical Records Officer. (i) Making final determinations concerning the approval or denial of medical access orders (paragraph (d) of this section); (ii) Assuring that medical access orders meet the requirements of paragraphs (d)(2) and (3) of this section; (iii) Responding to objections concerning medical access orders (paragraph (f) of this section); (iv) Overseeing internal agency use and security of personally identifiable employee medical information (paragraphs (g) through (j) of this section); (v) Assuring that the results of agency analyses of personally identifiable medical information are, where appropriate, communicated to employees (paragraph (k) of this section); (vi) Preparing an annual report of OSHA's experience under this section (paragraph (l) of this section); and (vii) Making final determinations concerning inter-agency transfer or public disclosure of personally identifiable employee medical information (paragraph (m) of this section). The Medical Records Officer shall also assure that advance notice is given of intended inter-agency transfers or public disclosures. (3) Principal OSHA Investigator. (d) Written access orders Requirement for medical access order. (2) Approval criteria for medical access order. (i) The medical information to be examined or copied is relevant to a statutory purpose and there is a need to gain access to this personally identifiable information; (ii) The personally identifiable medical information to be examined or copied is limited to only that information needed to accomplish the purpose for access; and (iii) The personnel authorized to review and analyze the personally identifiable medical information are limited to those who have a need for access and have appropriate professional qualifications. (3) Content of written access order. (i) The statutory purposes for which access is sought, (ii) A general description of the kind of employee medical information that will be examined and why there is a need to examine personally identifiable information, (iii) Whether medical information will be examined on-site, and what type of information will be copied and removed off-site, (iv) The name, address, and phone number of the Principal OSHA Investigator and the names of any other authorized persons who are expected to review and analyze the medical information. (v) The name, address, and phone number of the OSHA Medical Records Officer, and (vi) The anticipated period of time during which OSHA expects to retain the employee medical information in a personally identifiable form. (4) Special situations. (i) Specific written consent. (ii) Physician consultations. (e) Presentation of written access order and notice to employees. (2) The Principal OSHA Investigator shall promptly present a copy of the written access order (which does not identify specific employees by direct personal identifier) and its accompanying cover letter to each collective bargaining agent representing employees whose medical records are subject to the written access order. (3) The Principal OSHA Investigator shall indicate that the employer must promptly post a copy of the written access order which does not identify specific employees by direct personal identifier, as well as post its accompanying cover letter ( See, (4) The Principal OSHA Investigator shall discuss with any collective bargaining agent and with the employer the appropriateness of individual notice to employees affected by the written access order. Where it is agreed that individual notice is appropriate, the Principal OSHA Investigator shall promptly provide to the employer an adequate number of copies of the written access order (which does not identify specific employees by direct personal identifier) and its accompanying cover letter to enable the employer either to individually notify each employee or to place a copy in each employee's medical file. (f) Objections concerning a written access order. (g) [Reserved] (h) Internal agency use of personally identifiable employee medical information. (2) The Principal OSHA Investigator, the OSHA Medical Records Officer, the Assistant Secretary, and any other authorized person listed on a written access order may permit the examination or use of personally identifiable employee medical information by agency employees and contractors who have a need for access, and appropriate qualifications for the purpose for which they are using the information. No OSHA employee or contractor is authorized to examine or otherwise use personally identifiable employee medical information unless so permitted. (3) Where a need exists, access to personally identifiable employee medical information may be provided to attorneys in the Office of the Solicitor of Labor, and to agency contractors who are physicians or who have contractually agreed to abide by the requirements of this section and implementing agency directives and instructions. (4) OSHA employees and contractors are only authorized to use personally identifiable employee medical information for the purposes for which it was obtained, unless the specific written consent of an employee is obtained as to a secondary purpose, or the procedures of paragraphs (d) through (g) of this section are repeated with respect to the secondary purpose. (5) Whenever practicable, the examination of personally identifiable employee medical information shall be performed on-site with a minimum of medical information taken off-site in a personally identifiable form. (i) Security procedures. (2) The OSHA Medical Records Officer and the Principal OSHA Investigator shall each maintain a log of uses and transfers of personally identifiable employee medical information and lists of coded direct personal identifiers, except as to necessary uses by staff under their direct personal supervision. (3) The photocopying or other duplication of personally identifiable employee medical information shall be kept to the minimum necessary to accomplish the purposes for which the information was obtained. (4) The protective measures established by this section apply to all worksheets, duplicate copies, or other agency documents containing personally identifiable employee medical information. (5) Intra-agency transfers of personally identifiable employee medical information shall be by hand delivery, United States mail, or equally protective means. Inter-office mailing channels shall not be used. (j) Retention and destruction of records. (2) Personally identifiable employee medical information which is currently not being used actively but may be needed for future use shall be transferred to the OSHA Medical Records Officer. The OSHA Medical Records Officer shall conduct an annual review of all centrally-held information to determine which information is no longer needed for the purposes for which it was obtained. (k) Results of an agency analysis using personally identifiable employee medical information. (l) Annual report. (1) The number of written access orders approved and a summary of the purposes for access, (2) The nature and disposition of employee, collective bargaining agent, and employer written objections concerning OSHA access to personally identifiable employee medical information, and (3) The nature and disposition of requests for inter-agency transfer or public disclosure of personally identifiable employee medical information. (m) Inter-agency transfer and public disclosure. (2) Except as provided in paragraph (m)(3) of this section, the OSHA Medical Records Officer shall not approve a request for an inter-agency transfer of personally identifiable employee medical information, which has not been consented to by the affected employees, unless the request is by a public health agency which: (i) Needs the requested information in a personally identifiable form for a substantial public health purpose; (ii) Will not use the requested information to make individual determinations concerning affected employees which could be to their detriment; (iii) Has regulations or established written procedures providing protection for personally identifiable medical information substantially equivalent to that of this section; and (iv) Satisfies an exemption to the Privacy Act to the extent that the Privacy Act applies to the requested information (see 5 U.S.C. 552a(b); 29 CFR 70a.3). (3) Upon the approval of the OSHA Medical Records Officer, personally identifiable employee medical information may be transferred to: (i) The National Institute for Occupational Safety and Health (NIOSH); and (ii) The Department of Justice when necessary with respect to a specific action under the Occupational Safety and Health Act. (4) The OSHA Medical Records Officer shall not approve a request for public disclosure of employee medical information containing direct personal identifiers unless there are compelling circumstances affecting the health or safety of an individual. (5) The OSHA Medical Records Officer shall not approve a request for public disclosure of employee medical information which contains information which could reasonably be used indirectly to identify specific employees when the disclosure would constitute a clearly unwarranted invasion of personal privacy (see 5 U.S.C. 552(b)(6); 29 CFR 70.26). (6) Except as to inter-agency transfers to NIOSH or the Department of Justice, the OSHA Medical Records Officer shall ensure that advance notice is provided to any collective bargaining agent representing affected employees and to the employer on each occasion that OSHA intends to either transfer personally identifiable employee medical information to another agency or disclose it to a member of the public other than to an affected employee. When feasible, the OSHA Medical Records Officer shall take reasonable steps to assure that advance notice is provided to affected employees when the employee medical information to be transferred or disclosed contains direct personal identifiers. (n) Medical records maintained in electronic form. (2) When personally identifiable employee medical information in electronic form is taken off-site, the Principal OSHA Investigator is primarily responsible for ensuring that such information is properly used and kept secured. (i) The Principal OSHA Investigator is responsible for preventing any accidental or unintentional disclosure of, modification to, or destruction of personally identifiable employee medical information in electronic form. (ii) The Principal OSHA Investigator is responsible for controlling the flow of data into, through, and from agency computer operations. (iii) The Principal OSHA Investigator shall ensure the distribution and review of medical information in electronic form is limited to only those OSHA personnel and contractors with a need for access. (3) The transfer and/or duplication of medical information in electronic form shall be kept to the minimum necessary to accomplish the purpose for which it was obtained. (4) Electronic files containing personally identifiable employee medical information shall be downloaded only to a computer hard drive or laptop that is secured in accordance with Federal Information Processing Standard (FIPS) 201-2 “Personal Identity Verification (PIV) of Federal Employees and Contractors” and “Homeland Security Presidential Directive 12: Policy for a Common Identification Standard for Federal Employees and Contractors (HSPD-12).” (5) Electronic files containing personally identifiable employee medical information shall not be transferred to authorized personnel through email attachment unless appropriately encrypted. (6) When an employer or other record holder(s) provides access to employee medical information through a properly encrypted email attachment, the attachment shall be downloaded to a secured hard drive or laptop. After the attachment is downloaded, the email shall be permanently deleted. (7) Personally identifiable employee medical information in electronic form shall be secured when not in use. (i) Medical information in electronic form shall only be maintained or stored where facilities and conditions are designed to prevent unauthorized access. (ii) Personally identifiable employee medical information in electronic form shall be maintained only for so long as needed to accomplish the purpose for access. (iii) When no longer needed, the Principal OSHA Investigator shall ensure that all personally identifiable employee medical information on electronic files has been deleted, destroyed, or returned to the original record holder. (iv) The disposal of personally identifiable employee medical information maintained in electronic form shall be accomplished in such a manner as to make the data unattainable by unauthorized personnel. [45 FR 35294, May 23, 1980; 45 FR 54334, Aug. 15, 1980, as amended at 71 FR 16674, Apr. 3, 2006; 85 FR 45792, July 30, 2020]