However, in Secretary of Labor v. BHP Copper, Inc., the Federal Mine Safety and Health Review Commission found that BHP’s refusal to disclose an employee’s address and telephone number during an accident investigation violated Section 103(a) of the Mine Act [21 FMSHRC 758 (July 1999)]. While the Commission stated generally that it agreed that “section 103(a) can be reasonably interpreted to require a mine operator to disclose information…that enables MSHA to conduct an accident investigation in an expeditious manner,” the application of this decision is fairly limited, since it also stated that its holding was “fact-specific” and that it was not addressing disclosure of other information not at issue in the case [Id. at 765 and 768]. Depending on the circumstances surrounding the MSHA investigation and given the potential repercussions of violating state law, an operator would be well served to check state law for applicable restrictions, and may wish to obtain a patient’s written authorization before disclosing medical records to MSHA. Should the employee refuse to sign, and state law prohibits release without patient authorization, MSHA may ultimately have to look elsewhere for the information – or simply abandon its request.

If you are not subject to the HIPAA regulations, you may have to turn over requested health care records to MSHA. But, state laws may still prohibit disclosure of medical records without the patient’s written authorization.

Donna Vetrano Pryor is an associate in the Denver office of Patton Boggs LLP. She assists a diverse range of clients in complex commercial litigation matters in state and federal courts, as well as during alternative dispute resolutions. Vetrano Pryor may be reached via phone at 303-894-6145 or via e-mail at dvetrano@pattonboggs.com.