Patient privacy during OSHA inspection photography

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

July 14, 1995

Ms. Priscilla Shoemaker
Associate Director, Legal Services
American Health Care Association
[Recipient address omitted]
Dear Ms. Shoemaker:

This is in further response to your letter of February 21, to the Director of Policy, regarding the Occupational Safety and Health Administration's (OSHA) policies and procedures for taking photographs and videotapes in the workplace.

OSHA Instruction CPL 2-2.44C, Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Standard, 29 CFR 1910.1030, issued March 6, 1992, addresses the issue of photographing patients on page six at paragraph I.5. That paragraph reads as follows:

Compliance officers shall use appropriate caution when entering patient care areas of the facility. When such visits are judged necessary for determining actual conditions in the facility, the privacy of patients shall be respected. Photographs of patients normally will not be necessary and in no event shall identifiable photographs be taken without their consent.

Although only the word "photograph" is used, it should be interpreted to also include "videotape". Change-3 to OSHA's old Field Operations Manual (FOM), which was issued June 15, 1992, added "videotape" to instances where "photograph" was used. The new Field Inspection Reference Manual (FIRM), which was issued September 26, 1994, incorporates this change by referring to both "videotape" and "photographs".

Employee work situations that would involve working with patients (e.g., lifting, moving, bathing, dressing) could be demonstrated for the OSHA compliance officer by providing a demonstration using someone other than a patient, if photographing or videotaping such situations would invade the privacy of the patient. The demonstration should provide essentially the same information as the activity with an actual patient. OSHA Instruction CPL 2.98, Guidelines for Case File Documentation for Use with Videotapes and Audiotapes (copy enclosed), states in paragraph I.2.d. that demonstrations, which do not endanger the participants, may be taped as necessary to illustrate procedures or practices.

Sincerely,
John B. Miles, Jr., Director
Directorate of Compliance Programs