Access to Employees Exposure and Medical Records: Wyman-Gordon Co., OSHRC Docket No. 84-785, December 20, 1991

Date: Feb 01, 1997

In July, 1980, two retired employees of the Wyman-Gordon Company died. Their widows, as legal representatives of the men's estates, authorized an attorney to obtain copies of exposure and medical records for the two men, along with any analyses using those exposure and medical records. The company refused to honor the request, and, after a complaint was filed with the Occupational Safety and Health Administration, a compliance officer issued a citation to the Company for failing to provide access under 29 C.F.R. § 1910.20, Access to employee exposure and medical records. Of the issues contested in the case was the question of what records are available to employees as "relevant" to their exposure.

The standard cited requires that the employer must "assure the access" of the employee or a designated representative to "exposure records relevant to the employee" which were defined at the time of the citation as: "(A) records of the employee's past or present exposure to toxic substances or harmful physical agents; (B) exposure records of other employees with past or present job duties or working conditions related to or similar to those of the employee; or (C) records containing exposure information concerning the employee's workplace or working conditions. . . ." Later, in 1988, OSHA modified the provision in which these records were described to eliminate (C) and to amend (B) to read:

In the absence of such directly relevant records, such records of other employees with past or present job duties or working conditions related to or similar to those of the employee to the extent necessary to reasonably indicate the amount and nature of the toxic substances or harmful physical agents to which the employee is or has been subjected . . . ."

In this case, the company had collected area samples in the die shop near certain identified machines. Emco, one of the men, worked in the department, but that, said the Commission, was not enough under subsection (B). The government had to show that the job held by Emco also had duties or working conditions similar to those of the operators of those machines. Under subsection (C), which the Commission concluded applied only to area samples, the agency has to show more than the fact that the employee worked in the same "workplace" or "shop." Rather, OSHA must demonstrate that there was some relationship between the employees work routine and exposure to the substance measured. Quoting the agency's own comments in the Preamble to the 1988 final rule regarding the definition of the term "exposed" (which according to OSHA was not affected by the 1988 rule) , OSHA has to show that the exposure is the result of the unique fact of the employee's occupational exposure, not simply exposure to general environmental pollution. Following Commission precedent in other areas, the Commission noted that, ordinarily, OSHA must prove that the employee is within the "zone of danger" covered by the standard. Under this rule, that relationship must be shown by the work routine of the employee and the exposure resulting therefrom to the target or measured substance.

Hadis, the other employee, held a job during a period when certain experimental compounds were tested in the large forging shop. Personal samples of employees identified with the same job title were taken, as well as some area samples in a specific location. The Commission ruled that the personal samples were relevant, as the other employees had similar job duties as Hadis. However, because the government could not show that Hadis was ever near the machines identified in the area sample results, OSHA failed to show the necessary nexus between the target substance and Hadis' routine job duties. OSHA could not show that the substance identified in the samples had ever been used in the area regularly. Another set of samples collected during a similar "test" run were determined not to be relevant because OSHA had not presented any evidence, other than a bare assertion that Hadis had worked in the general area described in the samples, that Hadis could have been exposed.

 The resulting rule is that employees only have a right of access to exposure results when there is evidence that the employee was exposed at some time to the substance in question, and that the exposure results from the "unique fact of occupational exposure." This means that there must be some relation between the employee's routine job duties and the measurements of the target substance. Routine, general environmental exposure is not sufficient to trigger coverage under the regulation.

The larger question is who makes the determination and what is the relationship to the requirements in many substance-specific standards which require that potentially exposed employees have their exposures measured by "representative" samples. Arguably, whatever measurements are relevant for purposes of coverage under the records access rule are "relevant" for purposes of showing what an employee's exposure is under a substance-specific standard. Thus, one could argue that only those records are relevant which are "representative" in a statistical sense. Whether OSHA would agree with this assertion must await an OSHRC decision on the subject.

This article appeared in Compliance Magazine (February 1997) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.