WPF advises OSHA re: employee vaccination information

The U.S. Occupational Safety and Health Administration (OSHA) has published its proposed emergency standard for how employee vaccination information will be treated by employers. In comments filed 6 December 2021, WPF  generally supports the ETS’ proposed treatment of COVID-19 records pursuant to 29 CFR 1910.1020. Should this rule go into effect, all COVID-19 records will be considered an employee medical record, and will therefore be held with the protective guardrails described in 29 CFR 1910.1020.

However, WPF’s analysis found that “employee medical records” refers back to the original 29 CFR 1910.1020(c)(6)(i) definition of employee medical record, which is a decidedly pre-pandemic definition. Under the existing definition of employee medical records, if the COVID-19 records and roster described in the new proposal are not made or maintained by a physician, nurse, or other health care personnel or technician (etc.), per the current 29 CFR 1910.1020 (c)(6)(i), then the records are likely not actually going to be considered employee medical records.

WPF has proposed to OSHA a remedy to this potential conflict by revising the definition of medical record in the COVID-19 context to say the following: 

“These records and roster are considered to be employee medical records whether or not they are made or maintained by a physician, nurse, or other health care personnel or technician and must be maintained as such records in accordance with §1910.1020 and must not be disclosed except as required or authorized by this section or other federal law.” 

The circumstances the pandemic has introduced are novel. It is important that everyone agrees on what an employee medical record is in this new context, where COVID-19 vaccinations may not have been created by just health care providers, and where individuals and other non-HIPAA covered entities may hold the records.

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