Last week, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) implementing President Joe Biden’s COVID-19 vaccine mandate covering employers with at least 100 employees. The ETS is summarized here, including the general compliance deadline of 30 days from November 5, 2021, with an additional 30 days for testing to begin, if applicable.
Employers may already have the basic policy in place – get vaccinated or submit to periodic testing. But they may not be ready for the ETS’ record collection and record keeping requirements, or the obligations to make these records available upon request, sometimes within 4 business hours. Those are outlined here should the ETS survive the legal challenges filed in courts across the country.
When employers consider their ETS policies, they should consider these records issues to ensure compliance.
What records must covered employers collect and maintain?
Vaccination status. Because the ETS requires covered employers to determine the COVID-19 vaccination status of each employee, covered employers must collect “acceptable proof” of vaccination status, including whether each employee is fully or partially vaccinated. The list of items constituting “acceptable proof” includes, among other things, a copy of a COVID-19 Vaccination Record Card. See the full list here. If these items are unavailable, “acceptable proof” may also be an employee’s written certification, which is a signed and dated statement by the employee:
- Attesting to vaccination status,
- Attesting that they lost or are otherwise unable to provide the other forms of acceptable proof, and
- Stating: I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.
The ETS notes that when attesting to vaccination status, employees should include in the attestation, to the extent they can recollect: (i) vaccination type, (ii) date(s) administered, (iii) name of health care professional(s) or clinic site(s) administering the vaccination. Employers using an app for this purpose, will want to ensure the app can capture this information, if available.
Employers must maintain a record of each employee’s vaccination status and preserve the “acceptable proof” for each fully or partially vaccinated employee. This includes the vaccine ascertainment records the employer obtained from employees prior to the ETS becoming effective. Employers also must maintain a roster of each employee’s vaccination status. The roster must list all employees and clearly indicate for each one whether they are fully vaccinated, partially vaccinated, not fully vaccinated either because (i) they qualify for a medical or religious accommodation, or (ii) they have not provided acceptable proof of their vaccination status.
Testing. Covered employers that opt for a policy permitting employees either to be fully vaccinated or provide proof of regular testing must collect:
- Documentation of the most recent COVID-19 test result which may not be provided more than seven days after the employee last provided a test result. This is for employees who report at least once every seven days to a workplace where other coworkers or customers are present.
- Documentation of a COVID-19 test within 7 days prior to returning to the workplace, to be provided upon return. This is for employees who do not report for seven or more days to such a workplace.
The employer must maintain a record of each test result provided by each employee.
Are these records confidential?
The vaccination records and rosters, as well as testing records, discussed above are considered employee medical records and must be maintained as such. They must not be disclosed except as required or authorized by the ETS or other federal law. Here are some best practices to consider. Employers using third parties to assist in the administration these obligations should take steps to assess the safeguards in place at those third parties.
How long must the records be maintained?
In a move that will please covered employers, OSHA’s standard 30-year retention requirement is not applicable to the records or rosters discussed above. Instead, they must be maintained and preserved while the ETS remains in effect. Of course, all are hoping that period will be much shorter than 30 years! But remember the Emergency Temporary Standard is just that, temporary, and only remains in effect for 6 months unless extended, while OSHA works on a permanent standard under which OSHA could choose to make COVID-19 vaccination records subject to its normal 30 year rule for retention.
Do employees have a right to the COVID-19 vaccination or testing records maintained by their employers?
Yes. Covered employers must make individual COVID-19 vaccination documentation and any COVID-19 test results available either to an employee or anyone with the written authorization of the employee. The records must be available for examination and copying, and must be available by the end of the next business day following the request. The regulation does not indicate whether the employee’s request must be in writing.
In an effort to help ensure compliance with the ETS, covered employers also must make available to an employee or the employee’s representative (no written consent required here; OSHA does not believe these records will contain any PII and has no serious confidentiality or privacy concerns) the aggregate number of fully vaccinated employees along with the total number of employees at the workplace. Again, employers must make this information available by the end of the next business day following the request. Representatives include an employee’s (or former employee’s) personal representative as well as an authorized representative – an authorized collective bargaining agent of one or more employees.
What about OSHA, does it have a right to the COVID-19 vaccination or testing records maintained by employers?
An even tighter time frame applies to the obligation of covered employers to provide the Assistant Secretary for examination or copying (i) the employer’s written policy required for vaccination/testing and (ii) the aggregate number of fully vaccinated employees and total number of employees at the workplace. An Assistant Secretary includes the Assistant Secretary’s designees, which could include OSHA’s Compliance Safety and Health Officers.
The time frame – within 4 business hours of a request. If the records are maintained at a location in a different time zone, the employer may use the business hours of the establishment at which the records are located when calculating the deadline. For any other records required to be maintained under the ETS, covered employers have until the end of the next business date after the request to provide same to the Assistant Secretary.
How must these requests for information be submitted to employers?
As noted in ETS FAQs, employees, employee representatives, and OSHA can submit requests in any manner that provides adequate notice of the request to the employer. This may include requests by in writing (e.g., email, fax, letter), by phone, or in person.
We anticipate many employers will be leveraging either existing platforms or new applications to assist with managing the records, roster, and other information required under the ETS. In the course of doing so, employers should be sure to maintain the privacy and security of the information throughout the process.