COMPLIANCE ALERT: OSHA COVID-19 ETS: Determination of Employee Vaccination Status

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firmwide or companywide count).

The ETS requires employers to be aware of each employee’s vaccination status. Effective implementation and enforcement of a written vaccination policy also require employers to know the vaccination status of all their employees. Knowing each employee’s vaccination status is necessary in order to ensure that the vaccination, testing and face-covering requirements of the standard are met. As such, the ETS includes provisions for determining each employee’s vaccination status.

This compliance bulletin covers ETS guidance and requirements employers must follow to determine their employees’ vaccination status.

Action Steps

Employers should review, understand and implement the ETS requirements for determining employee vaccination status. Employers should also include these requirements in their mandatory COVID-19 vaccination policies.

Employee Vaccination Status Provisions

Employers must know each employee’s vaccination status in order to ensure that the vaccination, testing and face-covering requirements of the standard are met. The standard requires employers to determine the vaccination status of each employee and to also:

• Maintain records of each employee’s vaccination status,
• Preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and
• Maintain a roster of each employee’s vaccination status

Maintenance of records in accordance with this ETS are subject to applicable legal requirements for confidentiality of medical information. Acceptable proof of vaccination status for vaccinated employees is required. Any employee who does not submit an acceptable form of proof of vaccination status must be treated as not fully vaccinated. This information must be updated continually through the vaccination process.

Acceptable proof of vaccination status under the ETS includes:

• The record of immunization from a health care provider or pharmacy;
• A copy of the U.S. Centers for Disease Control and Prevention (CDC) 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).

In some cases, state immunization records may not include one or more of these data fields, such as clinic site; in those circumstances, an employer can still rely upon the state immunization record as acceptable proof of vaccination. OSHA states that clinic sites can include temporary vaccination facilities used during large vaccine distribution campaigns, such as schools, churches or sports stadiums.

Copies, including digital copies, of the listed forms of proof are acceptable means of documentation so long as they clearly and legibly display the necessary information

Digital copies can include, for example:

• A digital photograph or scanned image; or
• PDF of an acceptable form of proof

Employers must take care to comply with any applicable federal laws, including requirements under the Privacy Act, 5 U.S.C. 552a, and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.

Employees do not need to provide any documentation regarding vaccination status under this ETS. However, failing to provide acceptable proof of vaccination status will signal the employer to consider the employee as not fully vaccinated and note that as their status in the roster. For employers that include COVID-19 testing in their written policies, employees without acceptable proof of vaccination status must submit to weekly tests and face covering.