how health has declined over time (See, Dr. Swartz. Tr. 2363, 2369-70) Access, by increasing the likelihood of discovering a connection between Occupational exposure and a disease, will also enable a physician, where appropriate, to recommend a temporary or permanent end to exposure to the agent in question. Timely removal from exposure in some cases will serve to prevent the early manifestation of a disease process from progressing to permanent and irreversible health impairment. Timely removal from exposure in other cases will prevent further aggravation of whatever permanent impairment has already occurred. At the same time. a prompt diagnosis of an occupational disease can also serve to alert an employer of the need to reduce the exposures of other workers.

E. Employee Awareness and Improved Work Practices

Where the dangers of exposure to a toxic substance or harmful physical agent are known, worker access to information will also serve to decrease the incidence of occupational health problems. An individual worker's personal actions can greatly affect the extent of exposure to a toxic substance. These personal actions will be shaped by a worker's knowledge and appreciation of the health hazards he or she faces. Grover Wrenn. OSHA's official spokesperson at the public hearings, discussed this factor in his opening statement:

Increased awareness of workplace hazards on the part of employees will also make it more likely that prescribed safety and health practices will be fullowed. During OSHA's bearings for the dibromochloropropane standard, one worker testified to the following and I quote:

We had no warning that DBCP exposure might cause sterility, testicular atrophy, and perhaps cancer. If we had known that these fumes could possibly cause the damage that we have found out it probably does cause, we would have worn equipment to protect ourselves. As it was, we didn't have enough knowledge to give us the proper respect for DBCP. Had we been warned of these dangers, some may not have accepted employment in the first place, and others, myself included, would certainly have handled this material more carefully.

That is the end of that worker's quotation, but it is representative of comments delivered not only in that rulemaking hearing but others that OSHA has conducted on a number of toxic substances....(Wrenn. Tr. 9-10) Efforts are often made to control worker exposure to toxic agents through the use of respirators, protective work clothing. and careful personal hygiene (showers, washing hands and face before eating,

etc.). Work practices which strive to minimize dispersal of toxic substances (e.g., immediately storing dust laden scrap material in closed containers) are also important. All of these control techniques depend on worker Cooperation-cooperation which will best be assured when a worker knows the identity of hazardous substances he or she faces on the job, the magnitude of exposure, and the potential health consequences of this exposure (See, Dr. Wegman. Ex. 10, p. 7, Dawson (Electronics Safety and Health Project). Tr. 1600, Zebel, Ex. 2(91), p. 1). F. Occupational Health Research

Access to exposure and medical records and analyses based on these records, as well as long term preservation of these records, will also facilitate formal occupational health research. Groups of employees and unions can use the access rights of this standard to make medical and exposure information available to university and private organization researchers (See, Dr. Enterline, Ex. 2(60)). Prof. Joel Swartz of the University of Illinois School of Public Health, Department of Occupational and Environmental Medicine, explained the importance of medical and exposure records to Occupational health researchers:

I think that the availability of medical records is important to detecting Occupational disease and in being able to correct the situation which causes the disease. I want to bring out three main points. One. in the past, standards have been set too high for many substances, and the data from careful occupational and epidemiological study have been used to develop lower standards. In the same way, data from medical records and from monitoring could be used to provide information that standards for many other substances, the approximately 500 other regulated chemicals and many other unregulated chemicals, may be too high. and that therefore, the standard should be set lower.

Second, the data from medical records is needed as a baseline to establish the presence of occupational disease because of individual variations in the population. In other words, many biological parameters vary from individual to individual, and a person may have substantial occupational disease, but this may be masked because of the normal variation in the population. And especially in the case of the working population. we generally find that the working population is healthier than the general population and that superficially it may look like there are no occupational diseases in the population. but if we have records that can show progressive changes, we may be able to find such occupational disease.

A third point-it has been argued by industry that workers in their organizations and in some cases. NIOSH and OSHA, are

not competent to interpret medical data Id Like to argue exactly the opposite, that in mary cases when dila was left in the hands of industry, it has born systematically distorted and manipulated to mask the presence of occupational disease. And only when this data h. s gotten into the hands of representatives of unions or of NIOSH and OSHA has it been correctly interpreted and have we been able to find instances of Occupational disease. (Tr. 2362-63).

Prof Swartz gave a number of examples to illustrate these points (Tr. 2363-73) NIOSH also indicated that:

Exposure, demographic and medical data provide valuable information in determining the effects of occupational exposures on workers, developing standards and establishing preventive measures. As has been shown in recent years, reliance on animal studies alone does not always provide the necessary information for evaluating or improving work or environmental conditions.... Since it would not be ethical to purposely expose humans to substances for research purposes, researchers must study those individuals who, as part of their everyday lives, may have been exposed to toxic substances. Specifically, information is needed to conduct various types of epidemiologic investigations, such as crosssectional medical and reproductive studies. retrospective cohort mortality and morbidity studies and case control studies. The data needed for these studies include exposure data, medical information, work history Information, and demographic data collected by employers (Ex. 16. p. 2).

(See also, Weiner. Tr. 181-82: Dr. Wegman. Ex. 10A; NCCHR. Ex. 58, pp. 33-40, 46, Spatz (Cement, Lime and Gypsum Workers). Tr. 1205-06).

Although NIOSH and other federal agencies are likely to conduct a large ' portion of the non-employer-sponsored Occupational health research in this country, there is a definite role for individuals such as union-sponsored researchers, university scientists, and doctoral candidates in occupational health or biostatistics. The designated representative provisions of the final standard will facilitate this kind of research.

G. Importance of Access To Explicit
Statutory Rights

In addition, it is important to observe that worker access to exposure and medical information is important to the effectiveness of at least six explicit employee rights established by the Occupational Safety and Health Act. These statutory rights are discussed in greater detail in the Legal Authority portion of the preamble (V.A, infro). They are mentioned here because it is the agency's judgment that substantial Occupational health benefits will result from improving the ability of workers to

make beneficial use of these statutory

rights.

Access to information is first of all crucial to the effectiveness of the section 8(f)(1) right of employees and their representatives (29 U.S.C. 657(f)(1)) to complain to OSHA concerning perceived safety and health problems and obtain a prompt inspection of the worksite at issue. Access gives meaning to the section 8(e) right of employees and their representatives to accompany OSHA during plant inspections (29 U.S.C. 657(e)) in order to identify where and how various toxic substances are used, which plant operations generate the greatest exposures, and otherwise help OSHA conduct a thorough inspection. Access will enable workers to better exercise their twin rights under section 10(c) to contest the

reasonableness of abatement periods proposed by OSHA, and to participate as parties in Occupational Safety and Health Review Commission adjudicatory proceedings (29 U.S.C. 659(c)). A fifth statutory right enhanced by worker access to records is the section 20(a)(6) right of workers to request a workplace Health Hazard Evaluation (HHE) by NIOSH (29 U.S.C. 669(a)(6)). Lastly, the knowledge learned by workers due to access to medical and exposure records will also heighten the impact of the employee training and education programs currently being funded by OSHA pursuant to section 21(c) of the Act (29 U.S.C. 670(c)).

By promoting the effective use of the foregoing employee rights. the final standard will substantially advance the statutory scheme created by Congress for the solution of occupational health problems.

H. Lack of Worker Access to Existing
Medical and Exposure Records

Having discussed the benefits of direct worker access to medical and exposure records, it is appropriate to consider the kinds of records that employers generate, and the current practices concerning employee access to these records. As will be seen, the presence of records and the existing general lack of direct access establish the necessity for this standard.

Medical records relevant to potential Occupational disease are generated in a variety of contexts. Occupational medicine is practiced in a wide variety of settings and encompasses a wide range of medical services. The range of experience includes company-owned hospitals capable of performing most primary care (Skiba (Magma Copper). Tr. 1446-8). sophisticated in-house medical departments with epidemiological, toxicological, and

medical expertise (DuPont, Ex. 12, pp. 23). medical programs consisting only of an on-site occupational health nurse (Garry (Cal. Occ. Health Nurses). Tr. 1727), and contractual arrangements with industrial health clinics or outside physicians (either on a retainer or feefor-service basis) (Dr. Jacknow (Chamber of Commerce). Tr. 981). Contractual arrangements with outside physicians or clinics constitute the major organizational form of Occupational medicine practiced in this country (Dr. Wegman, Tr. 216-17; Dr. Jacknow (Chamber of Commerce). Tr. 981, Garry (Cal. Occ. Health Nurses). Tr. 1727, Dr. Hockwald (AOMA). Tr. 1531). There are approximately 10-15.000 physicians who are engaged in the practice of occupational medicine and many of these physicians practice only on a part-time basis. Approximately 500 of these physicians are board certified in occupational medicine (Dr. McLean (AOMA). Tr. 1536–7).

NIOSH, in its National Occupational Hazards (NOH) Survey found that only four percent of all industrial plants have a formally established health unit, only half of which were headed by a physician. The larger plants (500 or more employees) tend to have in-house medical facilities, accounting for 80% of the employees in plants which have a formal unit. The survey also found that whether a plant had and established health unit varied significantly according to industry type (Ex. 107, See also. Cal. Health Actiun Coalition. Ex. ⚫95).

The NIOSH NOH Survey found a high degree of variation in the medical services provided by employers. Survey results indicated that 48% of all employees are given pre-placement physical examinations and 78% of all employees work in plants which regularly record some health information about new employees (Ex. 107: See also, Samuels (AFL-CIO IUD), Tr. 949). Some form of periodic medical examinations are provided to 34% of all industrial workers (Ex. 171. Table 11). Medical services provided by employers may include first aid. periodic comprehensive examinations, on-site treatment of injuries and illnesses, medical screening for occupational illnesscs, medical examinations for workers' compensation and group health insurance purposes, and medical surveillance to comply with mandated OSHA requirements (NCCHR. Ex. 58, p. 30) As a result, and employee medical record can contain information concerning a variety of items: (a) a preemployment questionnaire and/or medical history, with or without a

physical examination; (b) laboratory tests. (c) chronology or episodic visits: (d) scheduled periodic examinations; (e) notes or letters from the employee's treating physician; (f) summaries of hospital records, other outside treatment records or consultations: (g) substance abuse problems: (h) psychiatric problems; (i) non-occupational medical problems; and (j) family records. (Dr. Whorton, Tr. 257).

The NIOSH NOH Survey also determined the extent to which employers regularly monitor the environmental conditions in their plants and receive some form of industrial hygiene services. In general, less than 5% of employers with fewer than 250 employees regularly perform monitoring (Ex. 171. Table 27). Approximately 16% of medium size manufacturing employers (250-500 employees), and 51% of large manufacturing employers (over 500 employees) regularly conduct monitoring (Id.J. Overall, approximately 22% of all industrial employees are employed in plants where monitoring is regularly performed, with the percentage being approximately 40% for all manufacturing employees (Id.). The NIOSH NOH Survey shows a wide fluctuation in the extent of regular monitoring, depending on employer size and SIC code. In addition, it is to be expected that far greater percentages of employees are covered by infrequent monitoring than by regular exposure monitoring. For example, 52% of manufacturing industry employees work in plants which receive industrial hygiene services (Ex. 171. Table 2). Irrespective of the exact percentages involved, it is clear that a substantial portion of American workers work on jobs for which exposure monitoring is being conducted.

Industrial recordkeeping practices appear to vary widely as to the extent to which employees are provided direct access to medical and exposure records. Many occupational physicians subscribe to the "Code of Ethical Conduct for Physicians Providing Occupational Medical Services" adopted in 1976 by the American Occupational Medical Association (AOMA) (Tr. 1538; Ex. 2(59)). While members of the AOMA may be penalized for violations of the AOMA Code, including censure. suspension, or expulsion from the organization (Dr. McLean (AOMA). Tr. 1541). to date. no member physician has been disciplined for violating any part of the Code (Dr. McLean (AOMA), Tr. 1543) Moreover, one personnel manager, not himself a physician but nevertheless responsible for a large medical program, testified that he had

never heard of the AOMA or its code of conduct (Skiba (Magma Copper). Tr. 1501). In addition to the AOLA, the American Academy of Occupational Medicine (AAOM) (Ex. 2(101)). the American Medical Association (AMA) (Ex. 105). and the American Association of Occupational Health Nurses (Ex. 123) have similar codes of ethical conduct, and have similar sanctioning powers (Dr. Steen (AMA). Tr. 2396). License revocation by the state is also a potential penalty for ethical misconduct (Dr. Steen (AMA), Tr. 2398-99, API, Ex. 158, p. 19).

As part of its ethical code, the AOMA prescribes conduct with respect to informing workers about their health. It obligates occupational physicians to "communicate information about health hazards in timely and effective fashion to individuals or groups potentially affected" and to "communicate understandably to those they serve any significant observations about their health, recommending further study. counsel or treatment when indicated" (Ex. 2(59), Standards 8 and 9. See also, Council on Occupational Health, American Medical Association, Scope, Objectives, and Functions of Occupational Health Programs (1971), Ex. 93C. p. 8).

By its terms, this policy does not grant employees rights of full access to medical records. The rulemaking record indicates that in practice the AOMA policy has been subject to divergent interpretations, ranging from routinely giving employees copies of all documents generated in medical examinations (Dr. Dietz (Goodrich). Tr. 1221) to providing only an oral consultation if information is requested (Dr. Johnson (Goodyear). Tr. 1219-20). In general, occupational physicians familiar with industry practice depicted a broad middle ground in which "the occupational physician has an obligation to discuss in detail the results of his physical examination, laboratory studies and exposure data with the employee-patient" and "to provide factual information" (API. Ex. 68. p. 1). At the same time, they indicate that the occupational physician often retains broad discretion "as to how to release the information, and is required to divulge only information which is in the patient's best interest" (API. Ex. 158. p. 26 (footnotes omitted)). According to the AOMA,

[U]sual occupational medical practice is to disclose an employee's records to him or her upon request. The physician, however, should be granted the right to withhold information contained in the record which may be harmful if divulged to the employee. An employee's designated physician should have

the right, however, to review all medical information contained in the record. (Dr. McLean, Tr. 1530.)

In contrast, employees and their union representatives universally testified that lack of worker access to medical and exposure information was the rule rather than the exception. Numerous specific examples of employer refusals of information were given by employees. union officials, and independent physicians (Dr. Teitelbaum. Tr. 116. 118: Dr. Wegman, Tr. 231-34; Dr. Parkinson (USWA), Ex. 43, p. 5. Tr. 1145. Dr. Silverstein (UAW). Ex. 63. pp. 3. 4. 1213. Dr. Ziem. Ex. 2(69), p. 2: AFL-CIO. Ex. 152. pp. 2-7, 9-11, 30, Ex. 39. p. 1. Tr. 640-42 Laden (USWA), Tr. 606-68; Wilson (USWA), Tr. 674-78. 683-84, 687; Wright (USWA), Tr. 871–72, 874-75; Becker (USWA), Tr. 2380-86, USWA Panels. Tr. 1116-24. 1150-52, 1157-61; Wodka [OCAW). Ex. 2(124). pp. 1-2, Attach, Ex. 26. Ex. 26a, Tr. 694-98: Eiler (ICWU), Tr. 727-32. 745-46; Meyer (OCAW). Tr. 787-90, Clanigan (PHILAPOSH), Tr. 791-95; Walker (PHILAPOSH). Tr. 799-802; Frumin (ACTWU), Tr. 828-28; Keel (ACTWU), Tr. 843-48, Simonski (UAW). Tr. 1294; Klein (UAW). Tr. 1291-93; Mattillion (UAW). Tr. 1313-17; McDougall (IBT). Tr. 922-23; Howe (CACOSH). Tr. 1096, 1104-05; Spatz (Cement, Lime and Gypsum Workers), Tr. 1204-05: Electronics Safety and Health Project Panel. Tr. 1584-1605: LOHP Panel, Tr. 1679-83, 1685-90, HRG. Ex. 161. pp. 3-4; Ex. 161d. pp. 4-8. See also, Weiner, Ex. 9A. pp. 3-4. 13-14. Tr. 175-76; Castleman, Ex. 104; ACTWU. Ex. 2(201). pp. 1-3). The following passages are typical of the extensive worker testimony on this issue:

The classic case that we are developing now concerns asbestos. It concerns bricklayers. Bricklayers in the steel mill, not the classic type of bricklayers that you are familiar with, but they reline furnaces and part of the sube:ances that they use in relining furnaces are silicones and asbestos. When they tear them out, they are subject to heavy doses of very fine particles of asbestos. So asbestos has been recognized as a problem substance for a long time-not necessarily always connected with cancer but sometimes with asbestosis.

So in 1952, the company agreed to examine the workers exposed to asbestos on a yearly or an every 18-month basis, and so from 1952 until today they have been doing that. But all that time-I have to give you a little background on the company dispensary. It is a very well-equipped dispensary They have 16 medical doctors on siff so they know what they are doing.

Now, all the time from 1952 to date they have not [found] a case of occupational illness among the bricklayers. Just six months ago we took a list of the bricklayers that were off sick and out of the 15 that were off sick.

seven of them had over 30 years seniority. which is sign ficant because of the latency period of asbestos in relation to problems. Out of the seven. four of them had a lung removed or a part of a lung removed. Two of them had congestive lung disease, and all of them had been examined by the company dispensary not less than seven months prior to the last time that they worked. All of them had been told by the company that you have no problem, with the exception of one, who was told by the company that Your pulmonary function tests have been getting worse for the last five years, and we think it is time that you saw a doctor. None of them have been told by the company that 'We think you ought to get out of the area. Your pulmonary function tests are showing up worse. For your own benefit, get out of the area, stop getting exposed to the silicones and the asbestos."

Now you ask yourself why that would be the case and the answer is kind of obvious to the workers, anyway, that if the companies examine an employee for exposure to a specific agent that is harmful to his health. and then they admit that his health has been damaged and move him to another area, they are immediately subjected to a Workman's Compensation Claim which is an expense item. That is because employers-specifically now, we are talking about Bethlehem Steelrefuse, blatantly refuse, to give employees any information in spite of the fact, in the case of the bricklayers,... we have a document signed by the employee designating his personal physician, signed by a witness, requesting his records to be sent to his own doctor. The company has refused to supply those records to the doctors. (Wilson (USWA). Tr. 676-78)

The union has also had difficulty receiving medical data. In these cases, despite a medical testing program which yields critical information the union is prevented from receiving the data. Workers at one ICWU local in New Jersey have been requesting but not receiving relevant work-related exposure records in a plant with an extremely high incidence of lung and bladder abnormalities Another local demanded that sputum cytology results be forwarded to a doctor of the worker's choice. Workers were forced to picket and work without a contract for several months over this issue. In Waukegan Illinois the ICWU was unable to obtain the results of [X-ray tests) and had to request that OSHA obtain these records. (Eller (ICWU) Tr. 731-32)

.

1 personally wrote a letter to the head of the Employees Relations Department of our plant site and one to the doctor requesting my complete medical file. I had a problem a few years back with acute bronchitis. I was working in an area called the aflure area.

What it is for are these pearl cosmetics. some of the eye shadow that the ladies wear, but it is made with a really super fine mica. I worked in that area for almost nine years and I had continuous bronchitis all the time. It was acute. I finally got out of the area, and two years later my bronchitis started to clear up, but I wanted my medical records to see

for what reason I had this acute bronchitis all the time

I got a letter back from the Employees Relations Department that said that medical records were confidential, the personal property of the company, and I was not allowed to have them I could come down to the Employees Relations Department with my immediate supervisor and look over my medical records. I didn't get any of the medical records at all. The only way I ever got medical records through the DuPont Company is through an arbitration case and the medical records had to be subpuenard. (Walker (PHILAPOSH). Tr. 799-800)

For example, in the welding areas we have periodically in the past requested tests be performed in the area where heavy concentrations of welding operations are performed. Specifically,... for exposure to such things as ozone or iron oxide. After the tests were made, after approximately three months for a team of hygienists to come from Detroit, we were told that all areas checked were in compliance. Exact results of the tests, however, were never disclosed to me. Nor were they disclosed to the particular employees who were tested. By simply stating that the test showed the corporation in compliance, in my opinion, does not mean the operation is healthful or particularly safe. Their results. for example, could have been on the high end of permissible exposure limits, making them far more harmful than had they been on the low end. Without this precise data our local safety committee is at a loss as to what to demand in the way of personal protective equipment or proper ventilation or whatever the case may be. Results of pulmonary function tests performed on these individuals and administered to many other employees have not as yet been disclosed to me or the employees despite repeated requests.

Another example is in the area of noise. We have known for a long time that many areas of the plant were out of compliance inasmuch as noise was concerned. As a result of an OSHA inspection and subsequent citation, the corporation instituted a largescale noise survey in the plant. This survey was started approximately one and a half years ago and was completed in April of this year. Again, when we asked for exact results of the survey, we were told that most areas were in compliance but there were some definite problem areas. However, it was becoming clear] to us that a serious problem was developing in certain areas of the shop with regard to possible raise-induced hearing loss. When the employees in these high noise areas requested copies of their audiograms that were being administered to them and were denied these copies, they became concerned because the simple fact was that they were having trouble hearing. This prompted the local union to set up at the union hall an audiologist to give preliminary bearing tests to anyone who wanted them. As a result of this preliminary hearing testing and subsequent testing. approximately 500 employees were found to have noise-induced hearing loss of one degree or another. Five hundred cases, the severity of some which may have been

On the other hand, workers are often forced to turn to the grievance procedure. including arbitration and strike action, to obtain vital medical or exposure data. I personally have been involved in numerous occasions where we have or I have assisted through our union or my self directly in such endeavors. [Going back four years ago in Borg Warner Mechanics Division in Rockford where we had a worker who had already been diagnosed as overexposed to muganese, the consequences of which I am sure the medical professional can articulate much better than I, but certainly it can destroy the central nervous system and do great damage to the individual if the amounts are excessive enough He had already been diagnosed. We had to go to grievance procedure, we had to go to arbitration on contract language, and we had to take the initial steps of strike action to finally get the medical information and data that was in those record: all the time. And it took us over two years of maneuvering and delay and frustration on the part of this individual to achieve that And the only thing that is uncommon about that is the length of time. It is more common than not to have to resort to these kind of tactics and pressures to obtain medical information and data on these individuals. (Klein (UAW). Tr. 1291-92)

Employee and union testimony also indicated that when some form of access to exposure or medical information is provided by management, this is often given orally with only a general indication that the employer is or is not in compliance with prescribed standards, or the employee does or does not have a problem. Precise quantitative results are not released to either the employee or the union. In the light of its experience the AFL-CIO concluded.

To date, gaining access to exposure and medical information has been an uphill battle. While some unions have negotiated and gained the right to exposure information. most have had to resort to grievances, arbitration, unfair labor practices (claims]. and in some cases strikes to secure information necessary to represent and protect their membership. These procedures are long and costly but the record shows only when required by law or ordered by an arbitrator or the NLRB will many employers turn over the requested information. (Ex. 152. p. 9. citations omitted)

OSHA's considerable experience from other rulemaking and enforcement proceedings corroborates the testimony from workers and their unions that they are often denied access to basic data in exposure and medical records. The statements of facts in several recent judges' decisions in NLRB cases involving access to exposure and medical records also provide corroborating evidence that access to

such information is not routinely given. Colgate-Pulmolive Co., Case No. 17-CA8331. NLRB (March 27, 1979): Minnesota Mining and Manufacturing Co.. Case Nos., 18-CA-5710-11, NLRB (March 13, 1979); Borden Chemical. A Divison of Borden. Inc., Case No. 32-CA-551, NLRB (April 25, 1979). Moreover, industry witnesses, while maintaining that in their view employees are provided adequate exposure and medical information, emphasized that broad discretion is exercised by management or the corporate physician over the manner and extent of disclosure.

OSHA concludes on the basis of the record and its own experience that denial of direct, unrestricted access to exposure and medical information is commonplace, if not the universal practice of industry. In those plants where direct access is freely granted, this standard will not significantly alter current practice. This standard is, however, necessary in those many situations where access is routinely denied. By making vital exposure and medical information available to workers and their representatives as a matter of a legally enforceable right, this standard will directly and indirectly contribute substantially to the detection. treatment, and prevention of Occupational disease.

1. Designated Representative Access to Records

In order to enable each worker to utilize his or her rights of access to records, the final standard permits an employee to designate representatives to exercise access rights. OSHA believes that enabling an employee to designate anybody he or she desires to entrust with access rights will most effectively achieve the purposes of the Act and this standard. The employee should ultimately be the judge of who can make a positive contribution to his or her well-being by access to records. As a result, no limitation is placed on who the employee may choose to act as a designated representative (See. Weiner. Ex. 9A. pp. 36-40. Dr. Silvertein (UAW). Ex. 63, pp. 7, 10, Dr. Parkinson. Ex. 43, p. 4: Annas. Ex. 56. Tr. 1748-49. 1751-52: AFL-CIO. Ex. 152, pp. 51-3, 556: USWA, Ex. 160, pp. 10, 20; Wodka (OCAW). Tr. 701-02).

Provisions in the final standard concerning designated representative access serve to facilitate the manner in which employees will often exercise access rights in practice. Workers in various situations will inevitably desire that their records be reviewed by private physicians, union officials and technical staff. family members.

attorneys, or others. Designated representative access simply enables workers to avoid having to personally obtain information which they will then provide to a third party; rather, the desired third party can get direct access with worker consent. Many labor unions, in particular, have become increasingly active in occupational safety and health matters (Ex. 172), and have either employed or developed professional relationships with physicians, industrial hygienists, epidemiologists, and toxicologists. OSHA is accelerating this trend through its "New Directions Grants Program" (Ex. 173). Designated representative access will facilitate union access for health and safety purposes, as well as access by professionals serving the occupational health needs of non-union workers. (See, Electronics Safety and Health Project. Tr. 1585).

Experience under the National Labor Relations Act is also relevant to the role of unions as designated representatives of employees. That Act gives collective bargaining representatives statutory rights to information relevant or necessary to the collective bargaining process cr to their responsibilities under a collective bargaining agreement. This may include access to exposure and medical records. In Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), the Supreme Court recently stated that the interests of the employer in the manner and extent of disclosure must be balanced against the interest of the union. The Court held that the employer in that case had not breached its duty to, bargain in good faith when it refused to release personally identifiable scores of psychological tests without the

employees' consent. With employee consent, however, the union would have been entitled to that data.

In other contexts, the courts have generally rejected claims of confidentiality as a basis for withholding relevant information from the union. See General Electric Co. v. NLRB, 466 F.2d 1177 (6th Cir. 1972) (wage data): NLRB v. Frontier Homes Corp., 371 F.2d 974 (8th Cir. 1967) (selling price lists); Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (3rd Cir. 1965) (job evaluation and wage data): NLRB v. Item Co., 220 F.2d 956 (5th Cir. 1955). cert. denied, 350 U.S. 836 (1955), 352 U.S. 917 (1956) (wage data); cf. United Aircraft Corp., 192 N.L.R.B. 382, 390 (1971) (company physician's records not discloseable without employee's permission unless needed for a particular grievance), modified on other issues sub nom. Lodges 743 and 1746 v. United Aircraft Corp., 534 F.2d 422 (2nd

Cir. 1975), cert. denied, 429 U.S. 825 (1976); Shell Oil Co. v NLR3, 457 F.2d 615, 619 (9th Cir. 1975) (refusal to furnish employees' names without consent was proper when it was "establish(ed) beyond cavil that there was a clear and present danger of harassment and violence"). Cf. Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) (dissen!). A number of arbitration decisions have also been reported resulting in access to exposure or medical information by grieving employees or their representatives (e g. Ex. 2 (124): Ex. 122). J. OSHA Access to Exposure and Medical Records

The final standard reaffirms OSHA's right of access to employee exposure and medical records. OSHA is a public health agency with regulatory responsibility "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions..." (Section 2(b) of the Act, 29 U.S.C. 851). Access to employee exposure and medical records is necessary to accomplish numerous statutory responsibilities, and all comprehensive occupational health standards promulgated under the Act to date have included provisions requiring OSHA access to exposure and medical records (See, 29 CFR 1910.1001-.1046).

Employee exposure records are crucial to the performance of many of the agency's investigatory, enforcement, and other regulatory functions.

Compliance personnel routinely review employer-generated exposure records. Air monitoring data can pinpoint the problem areas within a plant and enable OSHA industrial hygienists to focus their investigatory energies on these problems. All OSHA health standards are structured in a fashion such that many employer obligations are tied to the results of initial exposure monitoring. For example, under OSHA's inorganic lead standard, an employer need only provide complete medical surveillance to employees "who are or may be exposed above the action level (30 micrograms of lead per cubic meter of air) for more than 30 days per year" (29 CFR 1910.1025(j)(1)(i)). Exposure records are thus scrutinized to verify that an employer has properly complied with its responsibilities. Exposure records are also routinely used in rulemaking proceedings for such purposes as defining the universe of employees at risk and analyzing the extent to which current technology has achieved a desired level of protection (Wrenn, Tr. 51-52).

Employee medical records are less frequently used by OSHA than employee exposure records, but are

equally important to the agency's performance of its statutory functions. Prior to this rulemaking, the agency had no written instructions to its personnel on the use of employee medical records. Medical records have been only sporadically sought and used depending on the circumstances of particular compliance cases, and the expertise of the agency personnel involved. In recent years the national office has acquired full time staff physicians, and some OSHA field offices have established relationships with private physicians who are available when needed in specific cases. The agency's use of employee medical records will likely increase in the future with expanding medical resources and expertise, and with the development of additional comprehensive health standards. It is appropriate to outline some of the specific situations in which employee medical records have been or could be relevant to OSHA statutory functions:

1. All comprehensive OSHA health standards contain medical surveillance programs and associated recordkeeping requirements. Access to required

employee medical records is necessary to verify employer compliance (AFLCIO, Ex. 152, pp. 58-59). Field personnel might, for example, check a sample of records to verify that required biological monitoring tests were performed and results recorded, and that written medical opinions are preserved. In these situations, no substantive review is made of the medical content of required records.

2. OSHA enforces Section 11(c) of the Act (29 U.S.C. 660(c)) which prohibits employment discrimination against any employee for the exercise of rights afforded by the Act; e.g., the right to complain of unsafe working conditions. There have been cases where an employer has altered a worker's job status for purported medical reasons. and the worker then complained to OSHA that this action resulted from a retaliatory or other discriminatory intent. To investigate these situations it is necessary to obtain all relevant employee medical records to ascertain the legitimacy of the employer's actions. A summary of three recent cases of this nature has been added to the record (Ex. 174).

3. The substantive content of employee medical records may at times be relevant to the type of enforcement action OSHA initiates against an employer, or to proof of the appropriateness of an enforcement action. Serious violations under Section 17(k) of the Act (29 U.S.C. 666(j)) require an element of actual or constructive