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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6270 January 31, 1985 ADMINISTRATIVE LAW: Effect of administrative rules promulgated pursuant to law OCCUPATIONAL SAFETY AND HEALTH: Availability of medical and exposure records and health data by employer to designated representative of employee Administrative rules 325.3451 to 325.3476 promulgated by the Occupational Health Standards Commission pursuant to 1974 PA 154 and in accordance with 1969 PA 306 relating to employee exposure or medical records are legal and enforceable. Upon specific written authorization of an employee, exposure and medical records of the employee shall be furnished by the employer to the designated representative of the employee as required by administrative rules 325.3464 and 325.3466, respectively. Administrative rules 325.3466 and 325.3467, which relate to medical records of an employee, apply only to medical records and health data in the possession of the employer. Honorable Doug Cruce State Senator State Capitol Building Lansing, Michigan You have requested my opinion with respect to rules of the Department of Public Health, Occupational Health Standards Commission, entitled Employee Medical Records and Trade Secrets, which were promulgated in accordance with the authority conferred by the Michigan Occupational Safety and Health Act, hereafter MIOSHA, MCL 408.1001 et seq; MSA 17.50(1) et seq. Your inquiry was prompted by an administrative hearing in connection with a citation issued by the Michigan Department of Public Health alleging that an employer had 'failed to provide all required medical records to the employee designated representative within fifteen days.' The proceeding was resolved by the entry of a settlement agreement and order in which the respondent employer withdrew its notice of appeal of the citation, and agreed to comply with the pertinent provisions of MIOSHA, and with the Bullard-Plawecki Employee Right to Know Act, hereafter Bullard-Plawecki, MCL 423.501 et seq; MSA 17.62(1) et seq. Your first question is: Are administrative rules 325.3451 to 325.3476, 1983 AACS, R 325.3451 to R 325.3476, promulgated by the Occupational Health Standards Commission enforceable? These rules were promulgated by authority of section 24 of MIOSHA, and in accordance with the Michigan Administrative Procedures Act of 1969, hereafter MAPA, MCL 24.201 et seq; MSA 3.560(101) et seq. As of their effective date, namely, June 30, 1983, they have the force and effect of law. See, Douglas v Edgewater Park Co, 369 Mich 320; 119 NW2d 567 (1963). In response to your question, it is my opinion that Occupational Health Standards Commission rules 326.3451 to 325.3476, 1983 AACS, R 325.3451 to R 325.3476, are legal and enforceable, having been promulgated pursuant to MIOSHA and MAPA. Your second question is: Are the provisions in rules 325.3464 (exposure records) and 325.3466 (medical records) giving employee representatives the right of access to medical records enforceable? The exposure records aspect of your question will be answered first; the medical records aspect will be answered second. In order to resolve the issue you have raised, it is necessary to examine section 24 of MIOSHA, which provides, in pertinent part: '(9) An employer shall, in accordance with the standards established by sections 3 and 4 of the Bullard-Plawecki employee right-to-know act, Act No. 397 of the Public Acts of 1978, being sections 423.503 and 423.504 of the Michigan Compiled Laws, make available to employees, for inspection and copying, any general health surveys of conditions in the employee's place of employment which may affect adversely the employee's health. General health surveys shall be narrowly defined and interpreted by the departments to mean only those studies or reports conducted by an employer which as a result determines 1 or more potential adverse effects of employee exposure to toxic materials or harmful physical agents. A specific log of all general health surveys of conditions in the employee's place of employment which may affect adversely the employee's health shall be kept by the employer and shall be made available to employees to aid in information requests. '(10) Upon an employee's request, an employer shall in accordance with the standards established by sections 3 and 4 of the Bullard-Plawecki employee right-to-know act, Act No. 397 of the Public Acts of 1978, make available to the employee for inspection and copying all medical records and health data in the employer's possession pertaining to that employee.' These subsections distinguish between a general health survey, which is narrowly defined to mean 'only those studies or reports conducted by an employer which as a result determines one or more potential adverse effects of employee exposure to toxic materials or harmful physical agents . . ..' (subsection 9) and employee 'medical records and health data in the employer's possession pertaining to that employee' (subsection 10). Both subsections provide that the availability of the records is subject to the standards established by sections 3 and 4 of the Bullard-Plawecki. Section 3 of Bullard-Plawecki deals with review of personnel records by employees and provides: 'An employer, upon written request which describes the personnel record, shall provide the employee with an opportunity to periodically review at reasonable intervals, generally not more than 2 times in a calendar year or as otherwise provided by law or a collective bargaining agreement, the employee's personnel record if the employer has a personnel record for that employee. The review shall take place at a location reasonably near the employee's place of employment and during normal office hours. If a review during normal office hours would require an employee to take time off from work with that employer, then the employer shall provide some other reasonable time for the review. The employer may allow that review to take place at another time or location that would be more convenient to the employee.' Section 4 of Bullard-Plawecki, deals with obtaining personnel records and provides: 'After the review provided in section 3, an employee may obtain a copy of the information or part of the information contained in the employee's personnel record. An employer may charge a fee for providing a copy of information contained in the personnel record. The fee shall be limited to the actual incremental cost of duplicating the information. If an employee demonstrates that he or she is unable to review his or her personnel record at the employing unit, then the employer, upon that employee's written request, shall mail a copy of the requested record to the employee.' It is to be observed that in both sections 3 and 4 of Bullard-Plawecki, the right to inspect and obtain copies of personnel records is conferred upon the employee, and no mention is made of an employee's designated representative. Nor is there any mention of an employee designated representative in section 24(9) and (10) of MIOSHA. This omission in MIOSHA is significant in light of the fact that other sections of MIOSHA confer specific rights on authorized employee representatives. Examples of such are section 29(4) of MIOSHA which confers a right on the 'representative authorized by the employees' to accompany the Department representative during inspection of the place of employment and section 42 of MIOSHA which authorizes an employee representative to 'appeal the Department's decision relative to a proposed abatement, classification of citation, or penalty.' It is thus seen that the Legislature limited the right of inspection of and of copying general health surveys and medical records conferred in section 24(9) and (10) of MIOSHA to the employee. Rule 325.3464 (exposure records), 1983 AACS, R 325.3464, provides: 'Upon request, an employer shall assure each employee and designated representative access to employee exposure records relevant to that employee. For the purpose of these rules, exposure records relevant to the employee shall consist of all of the following: '(a) Records of the employee's past or present exposure to toxic substances or harmful physical agents. '(b) Exposure agents 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. '(d) Exposure records pertaining to workplaces or working conditions to which the employee is being assigned or transferred.' (Emphasis added.) This rule raises the question whether a designated representative may demand access to exposure records without the permission of the employee. In this connection, it is to be observed that an administrative agency may not, under its rule-making power, enlarge its authority or exceed its statutorily granted powers. Sterling Secret Service, Inc v Dep't of State Police, 20 Mich App 502; 174 NW 298 (1969). It is to be observed that neither Bullard-Plawecki, nor MIOSHA, prohibit an employee from authorizing a designated representative to examine employee exposure records. The obvious intent of the Legislature in both Bullard-Plawecki and MIOSHA in limiting the right of inspection and of copying of health surveys and medical records is to ensure the privacy of the employee. Where the employee expressly authorizes in writing a designated representative access to employee exposure records, there is no danger of an unwarranted invasion of the employee's privacy. There is, therefore, no reason for an agency not to accord access to employee exposure records by a designated representative where an employee has provided written authorization to the designated representative to examine the records described in the authorization. With respect to the exposure records aspect of your second question, it is my opinion that Occupational Health Standards Commission rule 325.3464, which provides that the employee and the designated representative may have access to employee exposure records is enforceable, subject, however, to the condition that the designated representative must have written permission from the employee authorizing access to the described records. Turning to the medical records aspect of your second question, it is to be noted that rule 325.3466 (medical records), 1983 AACS, R 325.3466, provides: 'An employer shall, upon request, assure the access of each designated representative to employee medical records of an employee who has given the designated representative specific written consent, except that death certificates shall be made available to the designated representative without specific wirtten consent. Appendix A to these rules contains a sample form which may be used to establish specific written consent for access to employee medical records. Appendix A may be obtained pursuant to R 325.3476.' (Emphasis added.) There is no danger of an unwarranted invasion of privacy in the enforcement of this administrative rule because the rule requires specific written authorization by the employee prior to access to medical records by a designated representative. It is my opinion, therefore, that Occupational Health Standards Commission rule 325.3466, 1983 AACS, R 325.3466, which provides that an employer shall assure that a designated representative may have access to employee medical records where the employee has provided written authorization to the designated representative, is enforceable. Your third question is: Do rules 325.3466 and 325.3467 apply to records in the possession of physicians as opposed to the employer? This question is specifically dealt with in section 24(10) of MIOSHA, which provides: 'Upon an employee's request, an employer shall in accordance with the standards established by sections 3 and 4 of the Bullard-Plawecki employee right-to-know act, Act No. 397 of the Public Acts of 1978, make available to the employee for inspection and copying all medical records and health data in the employer's possession pertaining to that employee.' (Emphasis added.) Thus, it is specifically provided that the medical records encompassed by these rules are solely those 'in the employer's possession.' Where the Legislature uses certain and unambiguous language, the plain meaning of the statute should be observed. Browder v Int'l Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982). It is my opinion, therefore, that administrative rules 325.3466 and 325.3467, which relate to access to medical records, apply only to medical records and health data in the employer's possession. (1) Frank J. Kelley Attorney General (1)
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