In 2020 OSHA caught some criticism for not doing enough enforcement to prevent workplace spread of the coronavirus. Further impeding the agency’s efforts was a medical records final rule that came out July 31 and may be getting rescinded.
“The purported reason for this rule was to preserve worker medical privacy and also to streamline agency review of medical records during inspections,” said workplace safety attorney Adele Abrams during a Premier Learning Solutions webinar, “Safety Policies in 2021: How the New Administration Impacts Employers Now.”
A key part of the rule states that before federal OSHA compliance officers in the field can conduct audits of records that identify individual employees (such as personnel files and workers’ comp records), they have to get permission from a newly-created OSHA medical records officer — a position that’s still vacant, according to Abrams.
Not only is the rule out of alignment with some state OSHA rules, she said, but it also conflicts with OSHA’s status as a public health agency, exempt from HIPAA privacy rules and with the authority to review worker medical records at will.
The rule blocked OSHA’s ability to see workplace COVID-19 cases that didn’t appear on employer illness and injury logs, but were being reported to workers’ comp systems.
It also blocks the agency from looking at a construction company’s workers’ comp records to see if there are employee lung issues related to silica dust.
In addition, the rule prohibits the agency from releasing or sharing medical records, unless it’s a special case like NIOSH research or enforcement cases where a worker’s health is of major concern.
“This may get changed,” said Abrams. “But this is a final rule, so this is one that would either have to be re-opened, or perhaps rescinded under the Congressional Review Act.”
So be prepared to grant inspectors full access to your records should OSHA decide to pay you a visit.
Federal COVID ETS
The countdown continues to March 15. That’s OSHA’s deadline under an executive order from President Biden to decide if a federal COVID emergency temporary standard (ETS) is necessary.
“I don’t see any scenario where they don’t do an emergency temporary standard,” Abrams commented.
An ETS could give the Department of Labor the power to extend OSHA’s COVID oversights to worksites outside of its normal jurisdiction, including:
- the nuclear industry
- the aviation industry, and
- areas of the public sector not covered by OSHA state plan states (Public employees in Connecticut, Illinois, New Jersey and New York are covered by federal OSHA under their individual state’s statutes).
Stay tuned, we’ll keep you posted.
Reporting, recording news
As you’re probably aware, employers are now responsible for recording confirmed, work-related COVID cases on their Form 300 OSHA logs that involve medical treatment, days away from work, restricted duty, fatality, etc. (See 29 CFR 1904.7).
In November, the Trump administration OSHA revealed that failure to keep workplace records related to COVID was the most cited inspection offense.
Under new OSHA guidance adopted on Jan. 29, COVID outbreaks must be reported (called in) to health departments, in accordance with state guidelines.
It also recommended that employers set up an anonymous system for employees to report work COVID-related concerns. Keep in mind retaliation against any employee for reporting a COVID case or exposure to the virus, or speaking out about unsafe conditions is a federal violation.