The Occupational Safety and Health Administration’s (OSHA) vaccine and testing emergency temporary standard (ETS) has been a whirlwind since the beginning of November, with stays being put in place and stays being dissolved by different courts.

It is unknown as to whether the OSHA vaccine and testing ETS will survive, but if the Supreme Court rules in its favor, employers will have to be ready to implement the OSHA ETS requirements.

One of those requirements is verification of employee vaccine status.

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 satisfied.

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.¹

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

Acceptable proof of vaccination under the ETS includes:

• a health care provider or pharmacy record of immunizations;

• a U.S. Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Record Card copy;

• a copy of medical records documenting the vaccination;

• 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, dates of administration and the name of the health care professionals or clinic sites administering the vaccine(s).²

Employers can rely upon state immunization records as acceptable proof of vaccination. This includes paper copies and digital copies, so long as they display all the required information. Digital copies can include, for example:

• a digital photograph or scanned image; or

• PDF of an acceptable form of proof.

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

Wisconsin Immunization Registry

Wisconsin provides an immunization registry where individuals can access an electronic copy of their vaccination records and save them on their computer or mobile device. This registry shows which immunizations the individual has received, and provides the dates, series, and recommended vaccinations.

The COVID-19 vaccine will show up in the Wisconsin Immunization Registry if it was given in Wisconsin. If an individual received a vaccination in another state, they would have to look up that state’s department of health website for the vaccine registry. Employees can use the electronic copy of their vaccination records found in the registry for proof of their vaccination status.​

Vaccine Attestation

Employees who do not possess their COVID-19 vaccination record should contact their vaccination provider to obtain a new copy or utilize their state health department’s immunization information system. OSHA recognizes that securing vaccination documentation may be challenging for some members of the workforce, such as migrant workers, employees who do not have access to a computer or employees who may not recall who administered their vaccines.

In instances where an employee is unable to produce acceptable proof of vaccination, a signed and dated statement by the employee will be acceptable. However, in order for an employee’s statement to be acceptable for proof of vaccination, the employee must have attempted to secure alternate forms of documentation via other means (e.g., from the vaccine administrator or their state health department) and been unsuccessful in doing so.

The statement from an employee must:

• attest to their vaccination status (fully vaccinated or partially vaccinated);

• attest that they have lost or are otherwise unable to produce proof required by the standard; and

• include the following language: ‘‘I declare (or certify, verify or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.’’³

An employee who attests to their vaccination status should, to the best of their recollection, include the following information in their attestation:

• the type of vaccine administered;

• dates of administration; and

• the name of the health care professionals or clinic sites administering the vaccines.

Any statement provided must include an attestation that the employee is unable to produce another type of proof of vaccination.

Once an employee has provided a signed and dated attestation, the employer no longer needs to seek out one of the other forms of vaccination proof for that employee. Depending on the content of the attestation, the employer may consider that employee either fully or partially vaccinated for purposes of the ETS.

Fraud through Attestation

While employers may not invite or facilitate fraud, the ETS does not require employers to monitor for or detect fraud.

However, the Occupational Safety and Health Act (OSH Act) section 17(g) subjects anyone who ‘‘knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter’’ to criminal penalties, punishable by fines or imprisonment (up to five years) for any person who ‘‘in any matter within the jurisdiction’’ of the U.S. government executive branch ‘‘knowingly and willfully’’ engages in any of the following:

• falsifies, conceals, or covers up by any trick, scheme or device a material fact;

• makes any materially false, fictitious or fraudulent statement or representation; or

• makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry.⁴

An employer who knows proof submitted by an employee is fraudulent and, with knowledge, accepts and maintains fraudulent documentation as proof of compliance with this ETS may be subject to the penalties in 18 U.S.C. § 1001 and section 17(g) of the OSH Act.⁵

Proof of Vaccination Recordkeeping

Employers are required under the ETS to maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. This means that employers must retain a copy of each employee’s proof of vaccination. Employees cannot satisfy this requirement if they only verify an employee’s vaccination status verbally or visually.

Vaccination Rosters

In addition to maintaining a record of employee vaccination status, employers must maintain a roster of each employee’s vaccination status, subject to applicable confidentiality requirements.

The roster must list all employees, and clearly indicate for each one whether they are fully, partially, or not vaccinated. Individuals not fully vaccinated must be considered not vaccinated, regardless of whether there is a medical or religious accommodation or because they have not provided acceptable proof of their vaccination status.

Employers must be ready to use the roster if they need to respond to a request from an employee or employee representative for the aggregate number of fully vaccinated employees at a workplace (along with the total number of employees at that workplace). Similarly, employers must be ready to provide the roster to OSHA inspectors upon request.

Record Confidentiality

OSHA considers ETS vaccination records, rosters, and COVID-19 testing records as employee medical records, and these records must be maintained as such. Information from these records must not be disclosed, except as required or authorized by this ETS or other federal law, including the ADA.

Employers should note that ETS vaccination and testing records are not subject to the retention requirements. Rather, the ETS requires employers to maintain and preserve these records only while this ETS remains in effect.

Access to Records

The ETS includes specific timeframes within which employers must make vaccination and testing records available to employees (or their representatives), OSHA, and other authorized individuals.

Employers should note that OSHA’s regular timeframes for providing access to employee medical records in 29 CFR 1910.1020(e) do not apply to ETS records. Instead, employers must follow the specific timeframes outlined in the ETS.

Employer Consequences

Employers who disregard the vaccine and testing ETS can be penalized with citations.

The penalties for a serious, other than serious, or posting requirement violation is $13,653 per violation. Any willful, repeated, or egregious violation found during an OSHA audit can be cited for $136,532 per violation.

With the litigation surrounding this vaccine and testing ETS, it is important for employers to note that OSHA has stated they are exercising discretion with respect to the compliance dates of the ETS.

However, with the fluidity of the legal proceedings, it is important for employers to monitor the OSHA ETS regulations.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ 29 C.F.R. § 1910.501(e)(4).

² 29 C.F.R § 1910.501(e)(2)-(e)(2)(v).

³ 29 C.F.R. § 1910.501(e)(2)(vi)(A)-(e)(2)(vi)(C).

⁴ 29 C.F.R § 1910.501(j)(3).

⁵ 29 C.F.R § 1910.501I(j)(4).