Seyfarth Synopsis: Employers often fail to appreciate the ramifications of industrial hygiene data and medical records. Even non-detect records must be maintained for 30+ years and provided to employees or representatives upon request.

OSHA’s Access to Employee Exposure and Medical Records standard, 29 CFR § 1910.1020, is one of the most frequently misunderstood — and quietly enforced — provisions in the OSHA regulations. Although it does not impose exposure limits or medical surveillance obligations, it creates independent recordkeeping, retention, and access duties that often trip up employers during inspections, litigation, and employee requests.

Purpose of § 1910.1020

OSHA promulgated § 1910.1020 to ensure employees and their representatives have access to information necessary to understand workplace exposures and make informed medical decisions. The standard operates independently of whether another OSHA standard was violated about a substantive safety condition.

29 CFR § 1926.33 applies the requirements of  §1910.1020 to construction employers.

What Is an Employee Exposure Record?

Under § 1910.1020(c)(5), an employee exposure record includes any record containing information concerning exposure to toxic substances or harmful physical agents, including environmental monitoring, biological monitoring, and records reflecting the presence or use of hazardous substances.

Importantly, OSHA has confirmed through multiple standard interpretation letters that exposure records do NOT need to show exposure above a PEL or action level. See: https://www.osha.gov/laws-regs/standardinterpretations/1983-03-01.  A record is still an employee exposure for retention and access purposes, if it shows exposure at or above an occupational exposure limit (OEL), exposure below an OEL, exposure to an unregulated chemical, or a non-detect of chemicals.

What Is an Employee Medical Record?

An employee medical record includes records concerning an employee’s health status created or maintained by a health care professional, such as medical histories, exam results, and laboratory findings. 

But to be medical records, they must be created or maintained by medical professionals. Historical COVID screenings, incident reports, first reports of injury typically are not prepared by medical professionals and do not constitute medical records.

Retention Requirements

Exposure records must be retained for at least 30 years. Medical records must be retained for the duration of employment plus 30 years. These requirements apply even if operations cease.

Employee and Representative Access Rights

Section 1910.1020 grants employees and their authorized representatives a substantive right of access to existing medical and exposure records, not merely a right to inspect summaries or conclusions. Upon request, employers must provide copies of relevant records or make them available for examination and copying, generally within 15 working days. For exposure records, this right extends beyond an individual employee’s personal monitoring data to include records that reasonably indicate the employee’s exposure based on job classification, work area, or task. Authorized representatives, including unions and attorneys, may obtain exposure records without individual employee consent, while access to medical records requires the employee’s specific written authorization. Importantly, employers may not delay or deny access by asserting confidentiality concerns, acceptable exposure levels, or the absence of a regulatory exceedance; the standard focuses on transparency and informed decision-making, not compliance outcomes.

OSHA Enforcement and Compliance Risk Under § 1910.1020

Failure to comply with 1910.1020 and give employees access to applicable records can result in complaints to OSHA agencies and probable cause for OSHA agencies to inspect. This risk is heightened in unionized workplaces and workplaces with active union organizing campaigns. A single non-serious citation could come with a penalty of more than $15,000.  OSHA’s enforcement directives provide that an employer’s failure to provide access to employee exposure and medical records may be cited on a per-record basis whenever they are discovered during an inspection or complaint investigation. This means that for each record withheld, OSHA could issue a separate citation and penalty of more than $15,000. And unions proactively request and review records as part of health and safety advocacy or grievances — raising the stakes for employers who might otherwise treat exposure records as a low-priority administrative matter.

Employer Game Plan for Records Moving Forward

  • Notify employees of existence of exposure records through hazard communication program (provided in applicable training at the time of initial on-boarding).
  • Create separate medical file for employee medical records, created and maintained for length of employment +30 years, separate from other human resources file.
  • Engage onsite safety consultants through counsel to maintain privilege over conclusions and analysis, understanding that raw data is an employee exposure record.
  • Segregate industrial hygiene data from analysis, including for new reports and third-party analysis.
  • Provide employees and representatives with timely access to data, noting that employees can only get access to data potentially applicable to them in terms of time frame and portions of the facility in which they worked.  

Importance of Records to Liability for Worker’s Compensation and Personal Injury

These occupational exposure records and medical records may be critically important and the only evidence available in defending against current or future 1) worker’s compensation claims by employees and/or 2) third party personal injury claims by non-employees such as outside contractors or employees of staffing companies who may be on site in a “multi employer.”  Through these records, the employer may be able to dispute alleged occupational exposures that did not occur in fact, or was not sufficient to cause the complained-about disease.  

These records can also be helpful in defending lawsuits by employees who want to file tort actions outside of the Worker’s Compensation Act (and avoid the statutory exclusive remedy provision) by claiming that because of the work environment there was a “substantial probability” of developing an occupational health disease, for example, a respiratory disease. Also, noise monitoring records can be useful in defending future hearing loss claims many years after the employee’s retirement.

Americans With Disabilities Act (ADA) Compliance

Employee exposure records can also be used in the context of the ADA when an employee claims to have a “disability” and seeks a reasonable accommodation. If the monitoring shows that a respirator is required to perform the job and the employee cannot do so because of their disability, the employee may not be “qualified” to perform the work. In a potentially hazardous atmosphere, an employer cannot permit the employee to work without a respirator. An accommodation is not reasonable if it would expose the employee to illness or otherwise violate an OSHA standard.