The ADA requires strict confidentiality of medical records. All information obtained from post-offer medical exams and inquiries must be collected and maintained on sepa­rate forms, in separate medical files and must be treated as a confidential medical record. Employers must take steps to guarantee the security of employee medical information, in­cluding keeping the information in a medical file in a locked cabinet apart from the location of regular personal files. Employers should also designate a specific person or persons who will have access to the medical files. The ADA provides, however, that employers may disclose the records when necessary to: (1) supervisors and managers in regard to work restrictions or necessary accommodations, (2) first aid and safety personnel, (3) government officials investigating the ADA and other dis­ability discrimination laws, (4) state workers’ compensation offices, and (5) insurance com­panies that require a medical exam to provide employees with health or life insurance.

The OSH Act requires employers to keep re­cords of workplace injuries and illnesses and grants OSHA personnel access to such records in the interest of exposing potential hazards and their causes.⁶ About 1.3 million employ­ers with 11 or more employees – 20 percent of the establishments that OSHA covers – must keep records of work-related injuries and ill­nesses. Workplaces in low-hazard industries such as retail, service, finance, insurance and real estate are exempt from record-keeping requirements.

The OSH Act requires that employers subject to recordkeeping requirements and OSHA compliance personnel who enforce record­keeping requirements maintain the confiden­tiality of medical records. OSHA Forms 300 and 301, which employers must use to report recordable illnesses and injuries, note that employers who use the employee health infor­mation contained in those forms for occupa­tional safety and health purposes must protect employee confidentiality to the fullest extent possible. Likewise, OSHA compliance personnel, who have the authority to examine medi­cal records to verify employer recordkeeping compliance, must perform such examinations on-site and are prohibited from recording and/ or taking off-site any information contained within those records. In addition, OSHA personnel will exercise their authority to gain access to personally identifiable employee medical information only after the agency has made a careful determination of its need for this information, and only with appropriate safeguards to protect individual privacy.⁷

Overall, the OSHA regulations appear to be concerned about the confidentiality of em­ployee medical information in a manner that is generally consistent with the ADA’s confiden­tiality requirements. HR personnel should guide employers to construe OSHA require­ments in a manner that also complies with the ADA’s confidentiality provisions whenever possible. Clearly, however, OSHA personnel and other individuals designated in the OSHA regulations, including representatives from the National Institute for Occupational Safety and Health (NIOSH), will insist upon access to those medical records they deem vital to their mission.⁸ While these parties are not listed in the ADA as having access to confidential medical records, the ADA’s conflicting federal law and regulation defense would protect an employer who grants access to OSHA repre­sentatives acting pursuant to federal law.

The ADA requires that employers consider reasonably accommodating any employee with a disability so that he or she can perform the essential functions of the job, in accordance with OSH Act requirements. For example, if an audiometric test required by OSHA iden­tifies that an employee has a hearing loss because of exposure to loud equipment, the employer might be tempted to terminate the employee or transfer him or her to another job to prevent continued exposure. The ADA requires, however, that the employer first consider an accommodation (such as sound abatement equipment) that would enable the employee to remain in his or her current posi­tion. If no such accommodation would work, the employer may then consider reassigning the employee.

OSHA regulations may prohibit certain ac­commodations. For instance, OSHA’s respira­tor requirements are clear and specific. Where OSHA regulations require employees to wear respirators on a particular job, an employer would not have to keep an employee who is unable to wear a respirator in a position that requires one as part of a reasonable accom­modation. The ADA would require, however, that the employer consider transferring this employee to an equivalent, vacant position as an alternate accommodation.

Larger employers may employ their own spe­cialists to assist with health and safety consid­erations and accommodation issues, including health and safety specialists, ergonomists, occupational health specialists, physical thera­pists, and occupational therapists. Smaller employers may hire these services as needed from outside agencies. Knowing which pro­fessionals to call is often the first important step for HR professionals, who will often be assisting supervisors in dealing with these issues. The HR professional will work closely with these service providers in applying and utilizing their advice within the framework of ADA and OSHA requirements.⁹

For example, orthopedic or musculoskeletal injury, specifically back injury, is the type of disability that has the highest number of claims before the EEOC for alleged disability discrimination under the ADA (approximately 17% of total claims as of FY 2008). HR profes­sionals will often encounter accommodation and health and safety questions about persons with musculoskeletal injuries. Supervisors or HR professionals may want to seek the assis­tance of an ergonomist, physical or occupa­tional therapist, industrial hygienist, or health and safety specialist. Ergonomists integrate knowledge derived from the human sciences to match jobs, systems, products, and environ­ments to the physical and mental abilities and limitations of people.¹⁰

An ergonomist uses information about people, for example their size, ability to handle infor­mation and make decisions, ability to see and hear, and ability to work in extreme tem­peratures, to match people to jobs.¹¹ Physical therapists, or PTs, are health care profession­als who evaluate and treat people with health problems resulting from injury or disease. PTs assess joint motion, muscle strength and endurance, function of heart and lungs, and performance of activities required in daily liv­ing.

Occupational therapists (OTs) evaluate and treat individuals with injuries, illnesses, cogni­tive impairments, psychosocial dysfunctions, mental illness, developmental learning disabil­ities, physical disabilities, or other disorders or conditions. Evaluation and intervention by an OT focuses on an individual’s level of function and involves assessment of performance com­ponents, and performance context.

An industrial hygienist plays a role in insuring that the workplace is as free as possible from hazards and that the workers in the communi­ty at large are protected from potential health threats. Some of the areas that industrial hygienists may get involved in include: testing for and possibly removing toxic materials in the work environment; helping to limit dis­abilities caused by repetitive and/prolonged movement, such as typing at a keyboard, or sitting at a desk all day; and setting limits on exposure levels and providing guidelines for control of chemicals, noise, and radiation in the workplace.

Further information about the services pro­vided by and the credentials of these profes­sionals may be gained from the relevant pro­fessional associations, listed in the "Resources" section of this brochure.

The HR professional is also likely to get many questions about mental health disabilities. Employers often express concern that people with certain psychiatric disabilities or a history of treatment may pose a safety concern. Ac­cording to the National Mental Health Associ­ation, "Violent acts committed by persons with mental illness represent a small fraction of the violence perpetrated in our country, yet these acts are frequently highly sensationalized by the media and lead to the continued stigmati­zation of persons with mental illness." ¹² Get­ting more information about mental health or psychiatric disabilities in general, and consul­tation on the unique accommodation consid­erations for a particular individual, is impera­tive when there are questions surrounding a mental health disability.¹³ A mental health professional or employee assistance program (EAP) professional may be of assistance in this situation.

HR professionals can play a pivotal role in helping employers to understand and effec­tively navigate the dual requirements of the ADA and OSH Act. By working closely with frontline supervisors and technical experts who deal with health, safety and accommoda­tion issues, HR professionals can assist their organizations in fully complying with OSHA’s health and safety requirements, without need­lessly screening out or discriminating against applicants or employees with disabilities.