Fed OSHA’s COVID-19 ETS: What You Need to Know About Recordkeeping

By Conn Maciel Carey’s COVID-19 Task Force

Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6^th compliance deadline upon us. Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS. Look for our summaries here each day over the next week. The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.

Here is a summary of the ETS requirements for recordkeeping:

Recordkeeping

29 C.F.R. Section 1910.502(q) establishes a new recordkeeping obligation applicable to covered employers requiring the creation and maintenance of a dedicated COVID-19 Log, while leaving in place the existing requirements applicable to all employers (including employers covered by the ETS) to record workplace COVID-19 cases that meet the Section 1904 recordkeeping criteria threshold (days away from work, etc.) on the employer’s OSHA 300 Log. It also establishes recordkeeping obligations for the COVID-19 Plan that is required by Section 1910.502(c) of the ETS. This summary describes the new requirements for COVID-19 recordkeeping.

The ETS requires covered employers — unless they have 10 or fewer employees in the entire company — to create, maintain, and make available to regulators COVID-19 records. Most notably, this requires covered employers to maintain a COVID-19 Log on which they must record every instance of a COVID-19-positive employee, whether or not the illness is work-related¸ with the limited exception of employees who exclusively telework. Unlike an OSHA 300 Log, for which employers have seven days to record an injury or illness, positive COVID-19 cases must be recorded on the COVID-19 Log within 24 hours of learning of the positive diagnosis. (Note that the 10 or fewer employee exemption applies to the new COVID-19 Log recordkeeping obligations only and not to a covered employer’s obligation to report work-related COVID-19 fatality or in-patient hospitalizations.)

Each entry on the COVID-19 Log must include:

Employee name;
One form of contact information;
Occupation;
Location where employee worked;
Last day at the workplace;
Date of the positive test or diagnosis; and
Date first had symptoms (unless asymptomatic).

The only limitations on which positive employee cases should not be included on the COVID-19 Log are those employees who contract COVID-19 but work exclusively from home and could not expose other employees, and those cases that are not either confirmed by a positive test or through diagnosis by a licensed healthcare provider.

The COVID-19 Log must be retained as though it is a confidential medical record. This means that unlike the 300 Log, which an employer is required to share with employees, former employees, and their representatives upon request, the COVID-19 log is very limited in how it can be disclosed.

The Log must be made available upon request by OSHA, an employee or an employee’s personal or authorized representative, by the next business day after the request, as follows:

A copy of an individual entry to an employee listed on the Log or to such other individual who has the employee’s written consent;
A version of the Log that only includes location where the employee worked, last day worked, date of positive test or diagnosis, and the date the employee first had symptoms for each entry. All of the other information must be removed; or
A copy of the full Log upon request from an OSHA representative.

The Log must be maintained and preserved for the period of time the ETS is in effect. The form in which the log is maintained, as well as how it is maintained and where (i.e., at the individual work site or in a central location) is left to the discretion of the employer.

In addition to the creation of this new COVID-19 Log, the ETS recordkeeping requirements mandate that employers maintain all versions of the COVID-19 Plan implemented at an employer’s facility and provide access to all versions to employees as well as employees’ personal representatives or authorized representatives, upon request, by the next business day after the request is made.

Although employers in certain low hazard industries including healthcare services have historically been exempt from the obligation to create and retain OSHA injury and illness records (i.e., 300 Logs, 301 Reports, and 300A Summaries), this exemption does not apply to the recordkeeping obligations established by the ETS.

As stated above, these ETS recordkeeping obligations are in addition to the injury and illness recordkeeping obligations established by 29 C.F.R. 1904. Thus, covered employers remain required to record cases of COVID-19 on their 300 Logs if these cases are work-related and result in one of the recording criteria (i.e., death, days away, work restriction, or medical treatment beyond first aid). This means that, in some instances, employers will be recording a single confirmed positive case twice – once on the OSHA 300 Log and once on the COVID-19 log.

We have published several articles about the other sections of the ETS, including: