OSHA Publishes Return-to-Work Guidance; Reminder to be Mindful of Employee Medical Record Retention

OSHA has published Guidance on Returning to Work to assist employers in understanding their obligations under OSHA as they continue the process of re-opening and returning employees to work. Employers should review this document in conjunction with state and local regulations concerning re-opening, as well as the CDC Guidance, EEOC’s Guidance, and DOL guidance concerning COVID-19 and return-to-work practices.

Employers should particularly review pages 13 and 14 if they are currently testing employees for COVID-19 or performing health screens or temperature checks. These pages discuss, “What OSHA requirements must an employer follow when conducting health screening, temperature checking, or COVID-19 testing?” and include requirements that employers may have if records are created in relationship to those tests and whether the tests qualify as Medical Records under the Access to Employee Exposure and Medical Records standard set forth in OSHA regulations.

Specifically, the regulation at issue defines “Employee medical record” as “a record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician, including: (A) Medical and employment questionnaires or histories (including job descriptions and occupational exposures), (B) The results of medical examinations (pre-employment, pre-assignment, periodic, or episodic) and laboratory tests (including chest and other X-ray examinations taken for the purpose of establishing a base-line or detecting occupational illnesses and all biological monitoring not defined as an “employee exposure record”), (C) Medical opinions, diagnoses, progress notes, and recommendations, (D) First aid records, (E) Descriptions of treatments and prescriptions, and (F) Employee medical complaints.” Further, the regulation provides that “Employee medical records” must be “preserved and maintained for at least the duration of employment plus thirty (30) years,” except in a handful of specific exceptions.