Toxic Substance Exposure Requires Record Retention for 30 Years

As a manufacturer of products containing small amounts of toxic or harmful substances listed on the Registry of Toxic Effects of Chemical Substances (RTECS), what are my responsibilities if an incident occurred that exposed one or more of my employees to a chemical/substance used in the finished product and a medical summary request is made regarding the employee? How long do I need to keep the record of exposure?

Section 3204 of the General Industry Safety Orders specifies how the employer is to assure that medical information for employees exposed to toxic or harmful substances in the workplace is available upon request.

General Industry Safety Orders Section 3204, Access to Employee Exposure and Medical Records, was promulgated and adopted on March 8, 1981, with various amendments being adopted through May 2, 2019.

This regulation provides employees, their designated representatives and authorized representatives of the Chief of the Division of Occupational Safety and Health (Cal/OSHA) a right of access to relevant exposure and medical records.

Also, the regulation establishes a definitive time period for which the employee’s records are to be maintained by the employer, which is the duration of employment plus 30 years.

Records for employees who are employed less than one year, however, do not need to be maintained, provided the records are given to the terminated employee upon leaving.

Regulation Scope

The scope and application of the regulation applies to the following employer/employee situations:

• Each employer who makes, maintains, contracts for, or has access to employee exposure or medical records, or analysis thereof, pertaining to employees exposed to toxic substances or harmful physical agents;

• All employee exposure and medical records, and analysis thereof, of employees exposed to toxic substances or harmful physical agents, regardless of whether the records are related to specific occupational safety and health standards;

• Employee exposure and medical records, and analysis thereof, made or maintained in any manner by the employer, both on an in-house and on a contractual (for example, fee-for-service) basis. Each employer shall assure that the preservation and access requirements are complied with regardless of the manner in which the records are made or maintained.

Definition

“Toxic substance or harmful physical agent” is defined as any chemical substance, biological agent (bacteria, virus, agent, fungus, etc.), or physical stress (noise, heat, cold, vibration, repetitive motion, ionizing and non-ionizing radiation, hypo- or hyperbaric pressure, etc.) which:

• Is regulated by any California or federal law or rule due to hazard to health;

• Is listed in the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS);

• Has yielded positive evidence of an acute or chronic health hazard in human, animal, or other biological testing conducted by, or known to, the employer; or

• Is the subject of a safety data sheet kept by or known to the employer which indicates that the material may pose a hazard to human health.

The full text of Section 3204 may be found by going to dir.ca.gov.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

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Mel Davis joined the CalChamber in 2000 as a Cal/OSHA adviser specializing in Cal/OSHA and safety-related matters. He worked for Cal/OSHA for more than 23 years as a principal safety engineer and construction safety engineer. His responsibilities included managing the technical staff responsible for developing and revising California safety and health regulations, evaluating requests for variances from regulations, and conducting complaint and accident investigations at all types of construction sites.