OSHA OR ADA: WITH WHICH LAWS DO WE COMPLY?
BY THOMAS D. SCHNEID
A potential conflict that may arise between the Americans with Disabilities Act (ADA) and the Occupational Safety and Health Administration (OSHA) requirements in the area of the reporting of occupational injuries and illnesses has been addressed by the Equal Employment Opportunity Commission (EEOC). The major conflicting area is the OSHA requirement to log all injuries and illnesses on the OSHA 200 log and to permit employees access to their medical records. The ADA requires that such information be maintained in a confidential manner and prohibits employers from disclosing confidential medical information to anyone except as expressly provided under the law.
The ADA permits disclosure of medical information only in the following circumstances:
1. Supervisors and managers may be informed regarding necessary restriction on work or duties of the employee and necessary accommodations;
2. First-aid and safety personnel may be informed, when appropriate, if the disability may require emergency treatment;
3. Government officials investigating compliance with the ADA shall be provided relevant information on request;
4. Employers may submit information to state workers` compensation offices, state second injury funds, or workers` compensation insurance carriers, in accordance with state workers` compensation laws; and
5. Employers may use the information for insurance purposes. (This exception includes OSHA officials, state plan safety officials, and employee representatives such as unions.)
EEOC GENERAL RULES
The EEOC has developed two general rules in its technical advice letter to address this situation. In the first circumstance, “An employer may continue to comply with the requirements of another federal rule, even if the requirements conflict with the requirements of the ADA.” In addition, the EEOC general rules state, “An employer may offer its obligations to comply with the conflicting federal standard as a defense to a claim of discrimination under the ADA.” In essence, these exceptions and clarifications provide that fire service organizations may provide requested information to OSHA officials, state plan safety and health officers, or employee representatives such as unions when required to do so by law. These documents normally include the OSHA 200 log, injury and illness summaries, supplemental records of employees` occupational injuries and illnesses, and other related reporting requirements. In a collective-bargaining situation, the fire service organization also may be required to provide access to the same information to union officials or others within the labor organization.
A fire service organization may experience a conflict between OSHA regulations and the ADA at some point in time because of these requirements under different laws. In essence, the fire service organization would be between a rock and a hard place because failure to comply with either law may result in a violation. The EEOC has stated that an employer may assert its legal obligation to comply with OSHA standards as a defense to an ADA claim for providing this confidential information. Fire service organizations also may want to analyze the possibility of a variance action with OSHA or its state`s plan program if this potential conflict appears to be on the horizon.
Many fire service organizations required to comply with the OSHA regulations or state plan safety and health regulations should address the issue of confidentiality of medical records and other medical information in advance. As discussed in previous columns, medical records should be maintained separately from personnel records and under lock and key with limited access. Prudent fire service organizations may want to plan to address this possible conflict and attempt to resolve the issue prior to providing information to various requesting parties to safeguard the confidentiality of this information. If a conflict should arise, a prudent fire service organization may want to acquire legal assistance with this particular issue and clarification from both OSHA and the EEOC prior to a final decision.
THOMAS D. SCHNEID is an associate professor and attorney with the Department of Loss Prevention of Eastern Kentucky University?s Fire and Safety Engineering Technology Program. He has a bachelor?s degree in education, a master?s degree and certificate of advanced study in safety, a law degree, and an LLM (master of laws) degree in labor and employment. He has 14 years of experience as a consultant for general industry.
