On Nov. 4, the Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) to supplement existing guidance to protect employees in the workplace. OSHA has prepared an in-depth
FAQ document for employers, which covers multiple topics such as applicability of the ETS and specifics around implementing compliance tracking.
While the implementation deadline is currently the subject of legal debate, many employers are nevertheless preparing to address new requirements under the ETS. I reached out to State Chamber member, Joe Spinelli of AccessDX, and here is what he shared:
The following three questions are the most common AccessDX has heard since the ETS was issued:
1) Does this apply to my company?
The ETS and associated
FAQ document provides employers with clarifications on the types of organizations where this ETS applies. In short, nearly every employer with more than 100 employees (across all locations) must manage the vaccination status of employees. The ETS also requires employers to ensure compliance with weekly testing initiatives for unvaccinated employees who return to the workplace or come in contact with other employees or customers.
2) Testing and verification
As outlined in the ETS, any FDA-cleared, approved, or authorized COVID-19 test can be used by employers to meet the periodic testing requirements. This includes the “gold-standard” PCR tests, as well as certain qualified rapid tests. The key elements of note for employers regarding these tests is that they:
- Must be administered in accordance with the test’s authorized instructions
- Cannot be both self-administered and self-read (meaning an employee cannot take a rapid test at home and also self-report on the result).
This means employers must ensure these tests receive some sort of proctored oversight—be it from a clinical provider, telemedicine provider, or employer observer. The ETS does not currently waive requirements due to testing supply constraints and, as such, many employers are now taking proactive steps to ensure their workforce has ample access to streamlined testing programs and supplies based on the unique needs of their employee base.
3) What about data privacy and security?
Many employers are struggling to understand the complexities and nuances of data privacy regulations (including HIPAA) given the data collection, record keeping, and reporting requirements under the ETS. Despite what you may have heard, employer inquiries and reporting on vaccine status is
currently waived from any HIPAA requirements.
However, the physical storage of information such as vaccine status and/or testing results can rise to the standards of “protected health care information,” and, as such, this information should not be living in an unprotected spreadsheet somewhere within the company. Employers should look to engage with testing groups that have both demonstrated expertise and purpose-built software solutions for testing compliance management, preferably those that already have proven their ability to solve these challenges for employers that already have instituted compliance programs.
