Titles of Regulations: 16VAC25-90. Federal Identical General Industry Standards (adding 16VAC25-90-1910.1020).

16VAC25-80. Access to Employee Exposure and Medical Records (repealing 16VAC25-80-10).

Statutory Authority: § 40.1-22 of the Code of Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).

Effective Date: August 20, 2009.

Agency Contact: John J. Crisanti, Planning and Evaluation Manager, Department of Labor and Industry, Powers-Taylor Building, 13 South Thirteenth Street, Richmond, VA 23219, telephone (804) 786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.

Background: In 1990, when the Safety and Health Codes Board initially considered adoption of this OSHA identical change, it was reticent to adopt the revised standard for the following reasons: the federal revision no longer required first aid records to be retained by the employer; the retention of all records versus just those records specific to establishing baseline levels or detecting occupational illness; and that only chest x-rays were to be kept in original form and no records would be required to be kept of employees of less than one year's duration.

The advances of medical technology and digital records retention over the last 18 years have rendered many of the implicit record storage concerns moot. There is also the substantial experience of federal OSHA in those states of direct federal enforcement of 29 CFR 1910.1020 to show that the effects of these 1990 changes have not been problematic.

Federal OSHA also noted in its initial regulatory preamble to this change that it "...deemed it necessary to modify the regulation so as to strike a better balance between providing employees with information necessary to maintain the benefits established by the regulation and at the same time protect legitimate trade secrets." [53 FR 38158]

Department staff noted the numerous additional requirements in the current federal standard when staff prepared a side-by-side comparison of the text of both the Virginia unique standard and that of the federal standard. The side-by-side comparison of the two standards highlighted federal OSHA's significant effort to solve the regulatory dilemma caused by seeking to accommodate the competing interests between the need for chemical identity disclosure for medical treatment of a patient's health problems, which may be a result of chemical exposure, and significantly stronger trade secret protection for the employer that, once lost, cannot be fully recaptured.

Under this regulatory review opportunity, the board approved the department's recommendation to repeal this state unique regulation that the department determined does not meet the "as effective as" requirement under the State Plan Agreement with federal OSHA, and to adopt the current OSHA standard at 29 CFR 1910.1020. This action adopting the current federal regulation has the added benefit of providing greater regulatory consistency of occupational safety and health standards with adjacent jurisdictions for those employers who work across state lines.

Summary:

This action repeals the Virginia unique regulation for Access to Employee Exposure and Medical Records, 16VAC25-80-10, and adopts the federal identical final rule, 29 CFR 1910.1020, as 16VAC25-90-1910.1020.

Note on Incorporation by Reference: Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR 1910.1020, Access to Employee Exposure and Medical Records, is declared a document generally available to the public and appropriate for incorporation by reference. For this reason the document will not be printed in the Virginia Register of Regulations. A copy of the document is available for inspection at the Department of Labor and Industry, 13 South Thirteenth Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, General Assembly Building, 9th and Broad Streets, Richmond, Virginia 23219.

Statement of Final Agency Action: On April 16, 2009, the Safety and Health Codes Board approved the adoption of federal OSHA's final rule for Access to Employee Exposure and Medical Records, 29 CFR 1910.1020 and repealed its Virginia unique version of the regulation, Access to Employee Exposure and Medical Records, 16VAC25-80-10.

Federal Terms and State Equivalents: When the regulations, as set forth in the final rule for Access to Employee Exposure and Medical Records, 29 CFR 1910.1020, are applied to the Commissioner of the Department of Labor and Industry or to Virginia employers, the following federal terms shall be considered to read as follows: