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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations see 65 FR 82492, 82526. Accordingly, while employers must maintain the COVID19 log in a manner consistent with federal and state privacy requirements, they generally may not refuse to disclose PHI when required or requested by OSHA based solely on the provisions of the Privacy Rule. Also, because paragraph q3 of this ETS
includes a specific, legally enforceable right of access, the Privacy Rule permits employers to disclose certain PHI to employees, former employees, and their representatives, to the extent the disclosure is required by law and must do so as required by the ETS.
Paragraph q2iiC provides that the COVID19 log must be maintained and preserved while this section remains in effect. The purpose of this retention requirement is twofold. First, retention of the log allows employers to review previously entered information over a long period of time. This can be useful to determine which policies and procedures at a workplace have been effective in reducing occupational exposure to COVID19. Second, retention of the log allows for access of the entered information by employees, former employees, and their representatives, and OSHA, which can facilitate tracing of potential exposures at a particular worksite and at other worksites where infected employees may have traveled.
The maintenance requirement in paragraph q2iiC does not specify a particular method by which employers must maintain the log. Employers have flexibility in choosing a method for maintaining the information on the log.
In making these decisions, employers should consider using a method that gives them the ability to effectively enter, update, and retain the information on the log while this section remains in effect, and ensures that the entered information is both accurate and secured. Also, employers should use a method that can allow for transmission of data when employees, former employees, and their representatives, and OSHA, request access to information under paragraph q3, especially when information is maintained at a centralized location.
For purposes of centralized recordkeeping, the COVID19 log may be maintained at a location other than the establishment, such as a companys central office. Employers with several distinct establishments or workplaces may keep several versions of the log at a centralized location. However, if the COVID19 logs is maintained at a central location, the employer must ensure that the information on the log can be accessed by employees,
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employee representatives, and OSHA at the relevant worksite in accordance with the requirements of the ETS.
Finally, if a business changes ownership while the ETS is in effect, the selling employer is responsible for transferring information on the COVID
19 log to the new owner. Under these circumstances, the previous owner is responsible for transferring all of the information entered on the COVID19
log to the new owner, and the new employer becomes responsible for retaining that COVID19 log. This will help ensure that the new employer is aware of previously entered COVID19
exposure information, and that employees and their representatives who remain after the sale, as well as former employees and their representatives, will have continued access to all of the COVID19 log information at their workplace or former workplace.
Paragraph q3 includes requirements for the access, upon request, by employees, former employees, and their representatives to records retained or maintained by employers under paragraph q. In addition, paragraph q3 includes requirements for records access for the Assistant Secretary. One of the goals of the access requirements is to enhance employee involvement in the process for preventing COVID19 exposure in the workplace. OSHA believes employee access to information about COVID19 is an essential part of an effective COVID19 plan. When employees do not have access to accurate information about hazards they face in their workplace, the likelihood increases that employees may suffer occupational injuries and illnesses. This would mean, for purposes of COVID19, that employers and employees would not have information they need to prevent the outbreak and spread of the virus in their workplace.
Paragraph q3 specifies that the employer must provide the records specified in paragraph q3iiv to the specified individuals for examination and copying by the end of the next business day after a request. By requiring prompt production of these records, the provision ensures that requesters, who are limited to employees and their representatives, can have the information necessary to take an active role in their employers efforts to prevent COVID19 exposure in the workplace.
Paragraph q3iiv provides more details about which records the employers must provide access to and to whom that access must be provided.
Paragraph q3iiii focuses on
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records access for employees and their representatives. As noted above, and consistent with 29 CFR 1904.35a3, OSHA interprets the term employee as used in paragraph q3iiii to include former employees. In accordance with this interpretation, OSHA also interprets the phrases their personal representatives and their authorized representatives, as used in paragraphs q3i and iii, to include the personal and authorized representatives of former employees.
These interpretations are limited to these provisions.
In addition, for purposes of paragraph q3, the term representative is intended to have the same meanings as in 29 CFR 1904.35b2, which encompasses two types of employee representatives. The first is a personal representative of the employee or former employee, who is a person the employee or former employee designates, in writing, as his or her personal representative, or is a legal representative of a diseased or legally incapacitated employee or former employee. The second is an authorized representative, which is defined as an authorized collective bargaining agent of one or more employees working at the employers worksite. Authorized representatives do not require separate written authorization to access the version of the COVID19 log described in paragraph q3iii because they have received broad authorization see below for more details regarding this version of the log.
Under paragraph q3iiii, employees, former employees, and their representatives have three specific access rights. First, pursuant to paragraph q3i, employees and their representatives have access to all versions of the written COVID19 plan at any workplace where the employee or former employee has worked. Second, pursuant to paragraph q3ii, any employee, former employee, and anyone having written consent of that employee or former employee have access to the COVID19 log entry for that employee or former employee. Finally, under paragraph q3iii, employees, former employees, and their representatives have a right to access a version of the COVID19 log that removes the names of employees, contact information, and occupation, and only includes, for each employee in the COVID19 log, the location where the employee worked,142
142 The employer should use discretion when possible. This location should be specific enough to accomplish the purpose of this recordkeeping in alerting people where the COVID19 hazard was located, but avoid the level of specificity that might
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