Summary of employer obligations of federally mandated OSHA Emergency Temporary Standard (“ETS”) compliance obligations
On November 5th OSHA published a federally mandated temporary standard for employers of more than 100 employees that supersedes any and all State or Local health and safety protocols. While currently that order is stayed by an injunction, there is a clear indication that the Federal Government will be implementing some sort of testing requirement including a burden on employers to track and record both vaccination records of their staff as well as testing records.
The collection and retention of this information is considered “Protected Health Information” (“PHI”) and subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). HIPAA has very specific rule sets and requirements for data retention, data access, storage, encryption, transport and data safeguards, and reporting. These infrastructure and IT requirements far exceed the measures employed by even the largest corporations and are specific to the healthcare world.
The implication of this emergency standard is far more reaching than the obligation of companies to test non-vaccinated individuals. This goes into full effect on December 6th, 2021, with the requirement to test non-vaccinated employees by January 4th, 2022. However, even if 100% of your company’s employees are vaccinated, there are significant compliance obligations with respect to employee records that most corporations are not prepared to meet.
QRMDs (Quick Response Medical Doctors) offers a fully HIPAA compliant patient portal and record platform that will both store vaccination records of your employees as well keep testing records; even if those tests are given to you by your employees from other sources. are not performed within the QRMDs platform. We provide this record keeping and data management for free, to corporations, schools and organizations that enroll with the QRMDs testing program and follow our simple guidelines for $0 direct cost Covid-19 testing.
We are summarizing the salient points of the ETS here, including the employer obligations under OSHA’s guidelines with regard to being in compliance. The full ETS can be found here https://www.osha.gov/coronavirus/ets2
Charles Colby CEO, QRMDs
Mike Keane, COO, QRMDs
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OSHA’s intent of the ETS and timing
- The ETS was put into place November 5th, 2021, and is anticipated to remain in effect for 6 months, or until OSHA believes that the virus does not present a “grave danger” to employees in the workplace.
- The comment period ends December 6th, and becomes a final rule in full force and effect at that time.
- OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing. The ETS applies, therefore, and supersedes any State or other guideline.
Employers subject to the ETS
- 100 employees or more. All employees count toward the total, including temporary, seasonal, part time, employees working remotely, or from home. Independent contractors or workers from staffing agencies do not count.
- IF at any time an employer with fewer than 100 concurrent employees temporarily hires such that they exceed 100 at any one time, then they become subject to the ETS until it is removed; even if they reduce their workforce to fewer than 100.
- There are different guidelines for Government agencies and healthcare facilities.
Dr. Steven Powell M.D. Medical Director, QRMDs
Dr. Lawarnce May, M.D. Medical Advisor, QRMDs
Dr. Jeff Garland, M.D. Medical Advisor, QRMDs
Vaccination policies and obligations (must be in place by December 6th 2021):
- Must establish a policy on vaccination. If a mandatory vaccination policy is established, 100% of all employees must either a) be vaccinated, or b) fall under exceptions to the ETS such as medical contraindication, medically requiring a delay, or ADA/religious exemptions to vaccination. All exceptions must be individually recorded. Partial vaccination policies are allowed under the ETS.
- Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes.
- Report work-related COVID-19 fatalities to OSHA within 8 hours, and work-related COVID-19 in-patient hospitalizations within 24 hours.
How are employers required to classify their employees?
Vaccination records for all employees must be classified as either: a) fully vaccinated, b) partially (not fully) vaccinated, c) not fully vaccinated because of a medical or religious accommodation, d) not fully vaccinated because they have not provided acceptable proof of their vaccination status.
- Employees with prior Covid-19 infections are NOT classified as “vaccinated via immunity” from a prior Covid-19 infection.
The employer’s records requirements of vaccination status (must be in place by December 6th 2021):
- Employer must keep all records of vaccination status of ALL employees’ on file and provide the information upon request within 4 hours or next business day.
- Employer must maintain a physical copy of the “proof” of vaccination from employees; acceptable forms of proof of vaccination status are:
Immunization from a healthcare provider or pharmacy; a copy of the U.S. COVID-19 Vaccination Record Card; a copy of medical records documenting the vaccination; a copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Employers are NOT responsible if an employee commits fraud and misrepresents his or her vaccination status or provides to the employer fraudulent evidence of vaccination.
Requirements of maintaining and storing employee vaccination records and health information
- OSHA considers proof of vaccination status, as well as COVID-19 test results, to be “Protected Health Information” (“PHI”) subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). HIPAA requires employers when storing this data, as required by the ETS, to maintain the following data integrity rulesets and policies for all PHI data:
- Must have access control, identity verification, transmission security, encryption/decryption in transit and at rest, data back up and storage, audit controls and time stamped access logs, PHI disposal, automatic log off features and business associate agreements with any other entity that is interacting with the PHI data, including all data service providers and software vendors.
- Employers are required to provide employees with their individual COVID-19 test results in addition to a summary of all results in total for the company each week, upon request. in as little as 4 hours upon request.