Johnson & Johnson Products, Inc., & Ethicon, Inc.

Plain-English summary

Five employees authorized a law firm to obtain their medical records for workers' compensation or occupational disease claims. The firm also requested employee exposure records, but the written authorizations referred only to medical information. The Commission held that, outside the collective-bargaining context, authorization to access medical records does not automatically authorize a representative to access exposure records. It therefore affirmed the judges' vacation of the exposure-record citation items. The separate medical-record violations remained affirmed because they were not under review. Commissioner Cleary dissented, reading the rule's single definition of designated representative to authorize access to both categories once the employees designated the law firm.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.20(c)(3), 29 C.F.R. § 1910.20(c)(10), 29 C.F.R. § 1910.20(e)(2)(i), and 29 C.F.R. § 1910.20(e)(2)(ii)(B)
• Outcome: Exposure-record access items vacated; unreviewed medical-record access violations remained affirmed.
• Key point: A representative's written authority to obtain employee medical records does not, by itself, authorize access to employee exposure records.

Full text (OSHRC public release)

Docket No. 81-1339 81-2454

SECRETARY OF LABOR,

Complainant,

v.

JOHNSON & JOHNSON PRODUCTS, INC.,

and

ETHICON, INC.,

Respondents.

AMALGAMATED CLOTHING AND TEXTILE

WORKERS UNION,

Authorized Employee

Representative.

OSHRC Docket Nos. 81-1339 &

81-2454

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

These cases are before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act.") [[1]]  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

At issue is whether the Respondents, Johnson & Johnson Products, Inc.  
("JJPI"), and Ethicon, Inc., violated 29 C.F.R. � 1910.20(e)(2)(i) [[2]] when
they denied the requests of a law firm for access to employee exposure records of five
employees for use in litigation before a state agency.  In separate opinions, two
administrative law judges vacated the citation items at issue on the ground that the
Respondents had no obligation under the cited standard to grant the law firm access to the
requested exposure records.  We agree with the judges and affirm their decisions.

JJPI and Ethicon both have workplaces in Chicago.  Four employees of
Ethicon and one employee of JJPI retained the law firm of Lewis & Davidson, Ltd., to
represent them in pursuing separate workers' compensation and/or occupational disease
claims against their employers before the Illinois Industrial Commission.  In
connection with these claims, the law firm wrote a series of letters to JJPI and Ethicon
requesting copies of specified records.  With one exception, noted below, these
request letters were essentially identical:  (a) they asserted that Lewis &
Davidson was the "designated representative" of the named employee, (b) they
requested copies of all of the named employee's personal medical records and all relevant
exposure records, and (c) they cited 29 C.F.R. � 1910.20 as the source of the employer's
asserted duty to permit access to the requested records. [[3]]

Enclosed with each of these initial requests for access was a standardized
form, filled in and signed by the particular employee identified in the cover letter.
  The form is captioned "Authorization for Release of Employee Medical Record
Information Pursuant to 29 C.F.R. � 1910.20."  Each of the five employees
filled in blanks on the form in identical language.  In pertinent part, the
authorization forms signed by the employees all state:

I, [named employee], hereby authorize [named employer] (individual or
organization holding the records) to release to Lewis & Davidson Ltd. the following
medical information from my personal records: any and all.

I give my permission for this medical information to be used for the
following purpose:  investigation and legal representation.

JJPI and Ethicon denied each of the law firm's requests for access.  
With respect to three of the employees, Ethicon wrote letters to Lewis & Davidson in
which it noted that access was being denied because "We consider the use of 29 C.F.R.
Sec. 1910.20 for the purposes of discovery in . . . Worker's Compensation cases ... to be
entirely inappropriate."

As a result of the denial of access to Lewis & Davidson of the employee
exposure records, the Secretary issued citations to JJPI and Ethicon alleging violations
of section 1910.20(e)(2)(i).  In addition, both employers were charged with violating
29 C.F.R. � 1910.20(e)(2)(ii) based on the denial of access to the medical records of the
five employees.[[4]]

In their decisions, the two judges reached the same conclusions.  Both
judges held that the signed authorizations included with Lewis & Davidson's requests
for access constituted "specific written consent" for access to employee medical
records and affirmed the citation relating to the denial of access to medical records.
  However, the judges agreed with JJPI and Ethicon that the employers were under no
obligation to permit access to employee exposure records because the signed authorizations
were limited by their terms to medical records.  These citation items were vacated.

Section 1910.20(c)(3) states that designated representatives who are not
collective bargaining agents, as is the case here, must obtain an employee's "written
authorization to exercise a right of access" in order to obtain access to any of the
records covered by the Secretary's standards. [[5]] A representative seeking access to
employee medical records must obtain an authorization that meets the detailer requirements
of section 1910.20(c)(10), which defines the term "specific written consent."
  In contrast, a representative seeking access to employee exposure records only
needs to obtain an authorization "which is signed and indicates that the designated
representative is authorized to exercise the employee's right of access." [[6]]

On review, the Secretary contends that Lewis & Davidson was entitled to
access to employee exposure records because it was a "designated representative"
within the meaning of the cited standard.  He reasons that, when the five employees
gave Lewis & Davidson "specific written consent" to obtain their medical
records, each employee thereby gave the law firm "written authorization to exercise a
right of access" (emphasis added) within the meaning of section 1910.20(c)(3); by
definition, therefore, Lewis & Davidson was a "designated representative" of
the five employees for the purposes of all of the designated representative access
provisions in section 1910.20, including the cited standard.[[7]]

We conclude that the Secretary's argument is contrary to the structure,
language and stated intent of the standard.  We therefore decline to adopt the
Secretary's interpretation of section 1910.20(e)(2)(i).

With regard to the structure of the standard, we note that the three subparts
of section 1910.20(e)(2) establish three separate and distinct rights of access: (i) to
employee exposure records, (ii) to employee medical records, and (iii) to analyses using
exposure or medical records.  The preamble to the final standard clearly reveals that
the Secretary chose to treat these three rights of access separately because he concluded
that there were significant differences among the three categories of records involved.
  For example, the requirement of "specific written consent" before a
designated representative can obtain personal medical records is a limitation on access
rights that does not apply when the representative seeks other types of records.  
This reflects the Secretary's determination that employees have a stronger privacy
interest in restricting access to their own medical records than they have in maintaining
the confidentiality of other records.  Accordingly, the structure of the standard,
with its differing treatment of various rights of access, supports the conclusion of both
judges below that authorization for access to one type of record should not be viewed as
authorization for access to another.

The Secretary's argument also conflicts with the language of section 1910.20
because it is contrary to the entire concept of "specific written consent"
(emphasis added).  The standard contemplates that an employee, by giving
"specific written consent," can limit or restrict the types of records that a
representative has access to.  Thus, we agree with the argument made by JJPI and
Ethicon that "specific written consent" by its very nature "is specific to
medical records only and limited by the conditions placed on the consent."  The
employers correctly assert that the Secretary's position would remove these intended
limitations.

For this same reason, the interpretation of section 1910.20(e)(2)(i)
advocated by the Secretary conflicts with his stated intent in adopting the
standard.  The preamble to the final standard establishes that, in defining the
access rights of employee representatives, the Secretary sought to give employees control
over who was to exercise those access rights.  E.g., 45 Fed. Reg. at 35,216, 35,218.
The judges accordingly were effectuating the Secretary's original intent when they
concluded that the written authorizations at issue in this case should be read literally.

We therefore adopt the judges' interpretation of section 1910.20(e)(2)(i) and
hold that, with the exception of a recognized or certified collective bargaining agent, an
individual or organization is not a "designated representative" within the
meaning of that section unless it has written authorization to exercise an employee's
right of access to employee exposure records.  This interpretation does not create
any significant obstacle to access and insures greater employee control over that
access.  It is therefore more consistent with the form and purpose of the standard
than the interpretation advocated by the Secretary and the Authorized Employee
Representative.

Accordingly, the judges' decisions to vacate item 1A in Docket No. 81-1339
and item 1B in Docket No. 81-2454 are affirmed. [[8]]

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATE:  JUL 20 1984

CLEARY, Commissioner, dissenting:

These two cases present a single issue of regulatory interpretation arising
from the Secretary's efforts to enforce 29 C.F.R. � 1910.20.  This standard was
promulgated in 1980 for the purpose of enabling employees to obtain access, either
directly or indirectly through their representatives, to medical and exposure records
maintained by their employers.  See Preamble, Final Standard, 45 Fed. Reg.
35212-35277 (May 23, 1980).  The issue to be resolved is whether a law firm that was
given "specific written consent" by five employees to obtain access to their
medical records was thereby also authorized to act as a "designated
representative" of these employees for the purpose of obtaining access to employee
exposure records.  The Secretary's position is summarized in his petition for
discretionary review in Docket No. 81-1339.  He contends that "execution of a
specific written consent to request medical records demonstrates that the individual or
organization is the employee's designated representative [and] therefore automatically
confers authority to request exposure records and analyses."

The Secretary of Labor was the "author" or "drafter" of
� 1910.20, which was promulgated through the extensive rulemaking procedures of section
6(b) of the Act, 29 U.S.C. � 655(b).  In addition, however, the Secretary's position
is supported by the language of the standard and it is consistent with both the structure
or organization of the standard and its stated purposes as disclosed in the preamble to
the final standard.  In comparing the various subsections of section 1910.20(e)(2)
and examining the sample form published in the standard's appendix, it becomes clear that
the Secretary intended to create a distinction between access to an employee's personal
medical records and access to the other records covered by the standard, including
employee exposure records.  In order for any employee representative to obtain access
to an employee's medical records, the representative must have that employee's
"specific written consent."  However, in contrast to the medical records
provision, the standard that is at issue before us, section 1910.20(e)(2)(i), does not use
the phrase "specific written consent" or any other language that would create
the same kind of restriction on access to employee exposure records.  All that is
required to gain access to these records is a simple designation of a representative.

There is no ambiguity in the standard, and the Secretary is merely seeking in
these cases to apply the cited standard according to its term.  Five employees signed
standardized authorization forms in which they requested their employers to release to
Lewis & Davidson any and all medical information in their individual personnel files.
  Lewis & Davidson therefore became a "designated representative," as
that term is defined in subsection 1910.20(c)(3) and used throughout the entire section,
because it was "[an] organization to whom an employee gives written authorization to
exercise a right of access."  Identifying itself as a "designated
representative" of the five employees and citing section 1910.20 as an authority for
its actions, Lewis & Davidson requested the two employers to grant it access to
relevant employee exposure records.  Accordingly, under the express terms of the
cited standard, Lewis & Davidson was entitled to the requested access because section
1910.20(e)(2)(i) provides that "[e]ach employer shall, upon request, assure the
access of each employee and designated representative to employee exposure records
relevant to the employee."

Because the standard contains only a single definition of "designated
representative," the Secretary correctly argues that an individual or organization,
such as Lewis & Davidson, that is indisputably a "designated representative"
within the meaning of one of the standard's subsections, e.g., section
1910.20(e)(2)(ii)(B) [medical records], is a "designated representative" within
the meaning of the other subsections, e.g., section 1910.20(e)(2)(i) [exposure records],
as well.[[1]]  The Secretary's interpretation is supported by the "accepted rule
of statutory construction that the same words or phrases are presumed to have the same
meaning when used in different parts of a statute."  Chugach Natives, Inc. v.
Doyon, Ltd., 588 F.2d 723, 725 (9th Cir. 1978), and cases cited.  The correctness of
the Secretary's position is also confirmed by the use of the phrase "a right of
access" (emphasis added) in the standard's definition of "designated
representative."  Use of that phrase is inconsistent with the view that
employees must specify which access rights a designated representative is authorized to
exercise.

I agree with the Secretary that the position adopted by the judges and now by
the majority erroneously incorporates the requirement of specific written consent into the
cited standard.  True, the judges did not say that an authorization meeting all of
the specifications of section 1910.20(c)(10) is necessary for designation of a
representative to obtain access to exposure records.  Nevertheless, the critical
element distinguishing designation of a representative from "specific written
consent" is a description of the particular records that the representative is
authorized to examine.  See 29 C.F.R. � 1910.20(c)(10)(E).  This is what the
judges erroneously incorporated into the standard at issue.  Thus, the judge in
Docket No. 81-2454 held that "[w]ithout consent from the employees to release
exposure records, the Respondent was under no obligation to do so and was justified in its
declination."

The preamble to the final standard further corroborates the Secretary's
position in this case because it emphasizes, more clearly than the standard itself, the
intended distinction between access to medical records and access to employee exposure
records.  With respect to medical records, one of the Secretary's primary concerns
was the protection of the privacy interests of the employees who were the subjects of the
records.  The "specific written consent" provision of section
1910.20(e)(2)(ii)(B) and the careful definition of that term in section 1910.20(c)(10)
were designed, according to the Secretary, to "minimize the possibility of invasion
of an employee's privacy."  45 Fed. Reg. 35216.

In contrast, the Secretary concluded "that the privacy interests
involved in exposure records are minimal and any risk of harm is clearly outweighed by the
need for access."  45 Fed. Reg. 35272.[[2]]

There is yet another basis for disagreeing with the majority.  The law
firm representing the employees sent two types of documents to the Respondent.  The
first was a letter saying that the firm was a designated representative of a certain
employee, and requesting copies of all that employee's medical records and of all exposure
records.  They also sent a written consent for each employee authorizing release of
medical information and giving permission for the medical information to be released to
the representatives.

The majority, as did the Judges, focuses on the second document -- the
release of medical information.  However, this has nothing to do with the release of
exposure records.  Only the first document is relevant -- the letter from the law
firm.  The law firm attests that it is the designated representative, and that it
wants exposure records.  The only question at this point is whether or not the
employees had designated the representative in writing.  Nobody has ever questioned
this - not the Respondent, not the Judges, nor the majority.  Further, there is no
requirement that the law firm supply the Respondent with copies of any form designating
them as representative, if any such writing had been requested.  Respondent had no
reason to believe the law firm was not the designated representative and, if so, they
could have inquired further whether the law firm was designated in writing.  They did
not do so, and hence I don't believe the designation of the law firm as representative of
employees should be an issue before this Commission.

Further, the Respondent has never seriously argued (and the Judges never
decided) that the law firm in question was not the designated representative of employees.
  The case was argued, and the case was decided on the basis that there had to be
more than a designation of a representative; that there had to be specific written
authorization to obtain exposure records, as well as medical records.  As indicated
heretofore, I do not think this is true.

The majority would also decide that even if they were to find that there was
a violation, they would find that under the circumstances of the case, the violation was
de minimis.  As such, no abatement is required, and in this case the employees will
not be able to obtain records of their exposure to toxic substances.  I dissent as to
this aspect of the majority decision as well for I do not believe records of exposure to
toxic substances is a de minimis matter.  It seems to be concluded that records of
exposure to toxic substances are matters of safety and health, but they are not if
obtained incident to litigation.  The majority is saying that the standard will not
be enforced if it is used for litigation purposes.  The standard relates to obtaining
information, and I know of no authority, and none is supplied, for the proposition that
this Commission may refuse to enforce a standard because they are not in agreement with
the use of information once obtained.

It is irrelevant what the purpose for obtaining these records was.  What
is relevant is, was the designated representative entitled to them?

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The two cases present the same question of law on nearly identical
facts.  Respondents are both wholly-owned subsidiaries of the same parent
corporation, Johnson & Johnson.  Affected employees in the two cases are
represented by the same authorized employee representative, which has elected party status
in both cases.  Based on this commonality of parties and issues, we consolidate these
cases for decision under Commission Rule 9, 29 C.F.R. � 2200.9

[[2]] The cited standard provides:

� 1910.20 Access to employee exposure and medical records

(e) Access to records--

(2) Employee and designated representative access--

(i) Employee exposure records.  Each employer shall, upon request, assure the access
of each employee and designated representative to employee exposure records relevant to
the employee.  For the purpose of this section, exposure records relevant to the
employee consist of:

(A) Records of the employee's past or present exposure to toxic substances or
harmful physical agents.

(B) Exposure records of other employees with past or present job duties or working
conditions related to or similar to those of the employee,

(C) Records containing exposure information concerning the employee's workplace or working
conditions, and

(D) Exposure records pertaining to workplaces or working conditions to which the employee
is being assigned or transferred.

[[3]] Lewis & Davidson's access request with respect to Wayne P. Eichman
differed from the other letters.  The law firm requested  copies only of
Eichman's medical records and made no reference to employee exposure records.  
Ethicon correctly argued before the administrative law judge that the absence of any
request from the law firm for exposure records relevant to Eichman constitutes an
alternative ground for vacating the � 1910.20(e)(2)(i) charge with respect to Eichman.

[[4]] This subsection provides, in pertinent part:

(2) Employee and designated representative access --

(ii) Employee medical records.

(B) Each employer shall, upon request, assure the access of each designated representative
to the employee medical records of any employee who has given the designated
representative specific written consent.  Appendix A to this section contains a
sample form which may be used to establish specific written consent for access to employee
medical records.

The term "specific written consent" is defined at � 1910.20(c)(10)
as meaning a written authorization containing the information that is specified in that
definition.  The "sample form" referred to in the standard served as the
model for Lewis & Davidson's standardized authorization form.

[[5]] The term "designated representative," as used throughout �
1910.20, is defined in � 1910.20(c)(3), as follows:

(c) Definitions.

(3) "Designated representative" means any individual or organization to whom an
employee gives written authorizations to exercise a right of access.  For the
purposes of access to employee exposure records and analyses using exposure or medical
records, a recognized or certified collective bargaining agent shall be treated
automatically as a designated representative without regard to written employee
authorization.

[[6]] In promulgating � 1910.20, the Secretary published the following
explanation of the "designated representative" provisions of the standard:

The preamble to the proposed rule discussed the term "designated representative as
follows:

This proposal does not provide a limiting definition of "designated
representative."  Rather, a designated representative could be anyone to whom an
employee has given written permission to act on his or her behalf to obtain direct access
to his or her records. For instance, a collective bargaining agent, physician, attorney,
family member, fellow employee, or anyone else, could be a designated representative,
provided the necessary consent were obtained.

The final standard on subparagraph (c)(3) makes this explicit.  Designated
representatives include "any individual or organization to whom an employee gives
written authorization to exercise a right of access."  The final rule contains
no rigid criteria as to what this written authorization must say.  Any written
statement which is signed and indicates that the designated representative is authorized
to exercise the employee's right of access will suffice ....

45 Fed. Reg. 35212, 35260 (May 23, 1980) (emphasis added).

[[7]] On review, the Secretary appears to concede that the language of the authorizations
refers only to medical records.  In any event, the provisions of � 1910.20 and its
Appendix A compel the rejection of any suggestion that the standardized authorization form
by its terms covers anything beyond medical records.  See note 4 supra.

[[8]] Even if we were to find that there was a violation, we would find that,
under the circumstances of this case, it was de minimis. A de minimis violation is one in
which there is technical noncompliance with a standard but the departure from the standard
bears so little relationship to employee safety or health that it is inappropriate to
assess a penalty or require abatement of the violation. Keco Industries, Inc., 11 BNA OSHC
1832, 1984 CCH OSHD � 26,810 (No. 81-1976, 1984).  The records here were sought for
discovery purposes for a proceeding unrelated to the safety and health purposes of the
Act.  See sections 2(b) and 8(a) of the Act, 29 U.S.C. �� 651(b) and 657(a).

[[1]] Because review was neither sought nor directed on the affirmance by
both judges of the alleged violations of � 1910.20(e)(2)(ii)(B), it is undisputed on
review that Lewis & Davidson was a "designated representative" within the
meaning of that standard.

[[2]] Thus, the Secretary stated:

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.

45 Fed. Reg. 35226