R 325.3472a Trade secrets; disclosure in medical emergency and nonemergency.

Rule 22a. (1) If a treating physician or nurse determines that a medical emergency exists and the specific chemical identity or specific percentage of composition of a toxic substance is necessary for emergency or first aid treatment, an employer shall immediately disclose the specific chemical identity or percentage composition of a trade secret chemical to the treating physician or nurse, regardless of the existence of a written statement of need or a confidentiality agreement. The employer may require a written statement of need and confidentiality agreement, pursuant to the provisions of subrules (2) and (3) of this rule, as soon as circumstances permit. (2) In nonemergency situations, an employer shall, upon request, disclose a specific chemical identity or percentage composition, otherwise permitted to be withheld pursuant to the provisions of R 325.3472(4), to a health professional, employee, or designated representative if all of the following provisions are met: (a) The request is in writing. (b) The request describes, with reasonable detail, 1 or more of the following occupational health needs for the information: (i) To assess the hazards of the chemicals to which employees will be exposed. (ii) To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels. (iii) To conduct preassignment or periodic medical surveillance of exposed employees. (iv) To provide medical treatment to exposed employees. (v) To select or assess appropriate personal protective equipment for exposed employees. (vi) To design or assess engineering controls or other protective measures for exposed employees. (vii) To conduct studies to determine the health effects of exposure. (c) The request explains, in detail, why the disclosure of the specific chemical identity or percentage composition is essential and why the disclosure of the following information would not enable the health professional, employee, or designated representative to provide the occupational health services described in subrule (2)(b) of this rule: (i) The properties and effects of the chemical. (ii) Measures for controlling workers' exposure to the chemical. (iii) Methods of monitoring and analyzing worker exposure to the chemical. (iv) Methods of diagnosing and treating harmful exposures to the chemical. (d) The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information. (e) The health professional, employee, or designated representative and the employer or contractor of the services of the health professional or designated representative agree, in a written confidentiality agreement, that the health professional, employee, or designated representative will not use the trade secret information for any purpose other than the health need asserted and agree not to release the information under any circumstances other than to the department, as provided in subrule (7) of this rule, except as authorized by the terms of the agreement or by the employer. (3) The confidentiality agreement that is authorized by subrule (2) of this rule may do either of the following: (a) Restrict the use of the information to the health purposes indicated in the written statement of need. (b) Provide for appropriate legal remedies for a breach of the agreement, including stipulation of a reasonable estimate of likely damages. The agreement shall not include requirements for the posting of a penalty bond. (4) Nothing in these rules is meant to preclude the parties from pursuing non- contractual remedies to the extent permitted by law. (5) If the health professional, employee, or designated representative who receives the trade secret information decides that there is a need to disclose it to the department, then the employer who provided the information shall be informed by the health professional before, or at the same time as, the disclosure. (6) If an employer denies a written request for disclosure of a specific chemical identity or percentage composition, then the denial shall be in compliance with all of the following provisions: (a) Be provided to the health professional, employee, or designated representative within 30 days of the request. (b) Be in writing. (c) Include evidence to support the claim that the specific chemical identity or percentage composition is a trade secret according to the provisions of section 14d of the act. (d) State the specific reasons why the request is being denied. (e) Explain in detail how alternative information may satisfy the specific medical or occupational health need without revealing the specific chemical identity or percentage composition. (7) The health professional, employee, or designated representative whose request for information is denied pursuant to the provisions of subrule (2) of this rule, may refer the request and the written denial of the request to the department for consideration. (8) If a health professional, employee, or designated representative refers a denial to the department pursuant to subrule (2) of this rule, the department shall consider the evidence to determine which of the following are true: (a) The employer has supported the claim that the specific chemical identity or percentage composition is a trade secret. (b) The health professional, employee, or designated representative has supported the claim that there is a medical or occupational health need for the information. (c) The health professional, employee, or designated representative has demonstrated adequate means to maintain confidentiality. (9) With regard to an investigation, both of the following provisions apply: (a) If the department determines that the specific chemical identity or percentage composition requested pursuant to the provisions of subrule (2) of this rule is not a bona fide trade secret, or that it is a trade secret, but the requesting health professional, employee, or designated representatives has a legitimate medical or occupational health need for the information, has executed a written confidentiality agreement, and has shown adequate means for complying with the terms of such agreement, then the employer will be subject to citation by the department. (b) If an employer demonstrates to the department that the execution of a confidentiality agreement would not provide sufficient protection against the potential harm from the authorized disclosure of a trade secret specific chemical identity or percentage composition, then the department may issue such orders or impose such additional limitations or conditions upon the disclosure of the requested chemical information as may be appropriate to assure that the occupational health needs are met without an undue risk of harm to the employer. (10) Notwithstanding the existence of a trade secret claim, an employer shall, upon request, disclose to the director any information that these rules require the employer to make available. If there is a trade secret claim, the claim shall be made not later than at the time the information is provided to the director so that suitable determinations of trade secret status can be made and the necessary protections can be implemented. (11) Nothing in these rules shall be construed as requiring, under any circumstances, the disclosure of process or percentage of mixture information that is a trade secret.