Does Collection of Vaccination Information Under Cal/OSHA ETS Trigger the 30 Year Retention Rule?
The simple answer is Cal/OSHA has not clarified if the 30-year retention rule is triggered by requirements of the COVID-19 Emergency Temporary Standards (ETS).
Pursuant to Cal/OSHA’s amended ETS employers are required to document the vaccination status of their employees if the employer intends to allow vaccinated employees to work without a face covering or to determine whether an employee needs to be excluded from the workplace due to a close contact with a COVID-19 case.
Under Cal/OSHA’s Frequently Asked Questions for the revisions to the ETS three acceptable options are outlined for obtaining this vaccination information:
Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status), and the employer maintains a copy.
Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
Employees self-attest to vaccination status and the employer maintains a record of who self-attests.
Under a separate Frequently Asked Questions page for the ETS generally, Cal/OSHA includes the following:
Q: How long are employers required to maintain documentation of employee vaccination status?
A: Vaccination records created by the employer under the ETS need to be maintained for the length of time necessary to establish compliance with the regulation, including during any Cal/OSHA investigation or appeal of a citation.
In order to encourage documentation using vaccination records, Cal/OSHA has determined that it would not effectuate the purposes of the Labor Code to subject such records to the thirty (30) year record retention requirements that apply to some medical records.
It is unclear if this response is intended to absolve employers from the typical 30-year medical record retention for all methods of vaccination status confirmation or only “employer created” documents such as when an employee’s self-attests to vaccination status.
Under 8 CCR 3204, subdivision (d), employers are mandated to maintain for at least the duration of an employee’s employment plus 30 years, medical records of employees, except for minor exceptions. Under the regulation, a medical record is defined as a “record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician.”
Based on the general Cal/OSHA regulation, it would appear if an employer collects a copy of the vaccine card or other proof that was made or maintained by a physician, nurse, or other health care personnel, or technician, the employer would need to maintain those records for the duration of employment plus thirty years.
Hopefully, Cal/OSHA will further clarify their FAQs regarding the maintenance of vaccination records shortly. In the meantime, employers should be sure that if they are requesting documentation of vaccination status from employees it is being maintained in a confidential file.