NEW YORK NURSE: March 2009
Q.: Our health and safety committee has requested that the employer provide us with a copy of the OSHA 300 log so that we can prepare for upcoming negotiations. The employer initially told us that we were not allowed to see this log and then said we could only get a summary, without employee names, because of HIPAA. What are we actually allowed to access under OSHA?
A.: The concern for confidentiality is certainly a valid one on the part of the employer. However, in the case of information required under the recordkeeping standard (29 CFR 1904), which the OSHA 300 log is covered, an opinion has been given by OSHA that HIPAA does not apply to the required recordkeeping.
The opinion, dated August 2, 2004 from OSHA states, in part: “...Even if HIPAA is implicated by the employer’s disclosure of the OSHA log, the statute and implementation regulation expressly permit the disclosure of protected health information to the extent required by law [reference 45 CFR 164.512 (a)]. This exception for disclosures required by law applies here because the recordkeeping rule requires that employees, former employees, and employee representatives have access to the complete log, including employee names, except for privacy concern cases [reference 29 CFR 1904.35 (b)(2)(iv)].”
What this means is that the employer is obligated by law to provide access to the entire OSHA 300 log. The HIPAA regulation provides an exception to the protection if another law requires the information be disclosed, as is the case with the recordkeeping statute.
Your safety committee is right to want the complete log. Interviews with affected workers can be a valuable tool when formulating health and safety proposals for contract negotiations. For instance, you may find out that several employees suffered musculoskeletal injuries from patient handling tasks and were out of work for an extended time period. This information can be used to request claims records on each employee in order to determine a cost impact to the employer (lost time cost + workers comp costs + replacement staff costs). That cost impact can be turned into an economic argument to support a contract that asks for implementation of programs designed to reduce cost to the employer, such as a comprehensive safe patient handling program.
The NYSNA EGW Program receives many inquiries each month from members who have problems in their workplaces. If you have a question about labor relations at your facility, contact your NYSNA nursing representative. If you have a question you think should be featured in this column, send it to: RNs at Work, NYSNA, 120 Wall Street, 23rd Floor, New York, N.Y. 10005.