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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
the last day that the employee was at the workplace before removal, the date of that employees positive test for, or diagnosis of, COVID19, and the date the employee first had one or more COVID19 symptoms, if any were experienced. As noted above, the employer must provide these records to these individuals upon request for examination and copying not later than by the end of the next business day after the request.
Employee, and employee representative, access to this information is critical to ensuring full employee participation in employer efforts to prevent COVID19 exposure in the workplace. For example, access to the COVID19 log may be helpful for a requesting employee in determining the likelihood of COVID19 exposure in specific occupations or areas at a workplace. Also, access to information by employee representatives allows them to potentially evaluate exposure information for the employees they represent in different areas throughout a worksite. In addition, access to the information on the COVID19 log provides a useful check on the accuracy of information entered by the employer and provides greater employee involvement in the COVID19
protection program at the workplace.
Former employee access to these records is important as well. OSHA
finds that the needs of former employees for access to records that could speak to their health are as compelling as the needs of current employees. Therefore, as noted above, OSHA interprets the term employee as used in paragraph q3iiii to provide records access to former employees and their representatives.
Employers should note, however, that they may limit the access of a former employee and their representatives to versions of the written COVID19 plan and the COVID19 log that were current or otherwise relevant to the former employees time of employment. In other words, as to the requirement in paragraph q3i to provide all versions of the written COVID19 plan to former employees and their representatives, employers need only provide the versions of the plan that were implemented during the former employees employment. Similarly, as to the requirement in paragraph reveal the employees identity unnecessarily. In some cases, such as when only a single employee works in a location, it will be infeasible to avoid alerting others to the employees identity. But in other cases, instead of saying that employee worked at a particular piece of equipment or in a particular portion of a room, the employer could just identify the room where the employee was.

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q3iii to provide the 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, the last day that the employee was at the workplace before removal, the date of that employees positive test for, or diagnosis of, COVID19, and the date the employee first had one or more COVID19 symptoms, if any were experienced, to former employees and their representatives, employers are only required to provide log entries for dates on which the former employee was employed by the employer.
Employers should note that employee privacy is protected under the access to records provisions in paragraph q3.
Unlike the OSHA 300 log, employers are not permitted to disclose the names of employees or occupations entered on the COVID19 log when they provide the COVID19 log to employees, former employees, or their representatives for copying under paragraph q3iii.
However, paragraph q3ii does allow a limited exception to this privacy requirement. Specifically, as noted above, upon request, employers must provide access to the COVID19 log entry for an individual employee or former employee to that employee or former employee, or to anyone having that employee or former employees written permission. Consequently, employees, former employees, their representatives, and others can request and receive access to entries about another employee or former employee with that employee or former employees written permission.
In order to create the version of the COVID19 log that would be provided under paragraph q3iii, an employer must remove the names, contact information, and occupation of employees. Other information on the COVID19 log relating to the location where the employee worked, the last day the employee was at the workplace before removal, the date of the employees positive test for, or diagnosis of, COVID19, and the date the employee first had COVID19
symptoms, if any were experienced, must be included in the privacyprotected log. This information is critical for employees and their representatives to assess potential exposures to COVID19 in the workplace and is the only information that may be included on the version of the log provided to employees and representatives under paragraph q3iii. Without the provision of this information to employees and their representatives, the only potential check
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on whether the employer is accurately complying with the notification requirements of the ETS would be OSHA inspections. The agency believes that making this information available to employee representatives in a manner that still addresses privacy concerns will help ensure compliance with the requirements of the ETS and thereby protect workers.
In addition, as noted above, paragraph q2iiB provides that the information in the COVID19 log must be maintained as though it is a confidential medical record and must not be disclosed except as required by this ETS or other federal law. These provisions work together to take steps to preserve employee privacy and confidentiality.
Under the ETS, employees, former employees, and their representatives are entitled to one free copy of each requested record, which is consistent with 29 CFR 1904.35. The cost of providing one free copy to employees, former employees, and/or their representatives is minimal, and these individuals are more likely to access the records if it is without cost. Allowing the employer to charge for a copy of the record would only delay the production of the information. After receiving an initial, free copy of a requested record or document, an employee, former employee, or representative may be charged a reasonable fee for copying duplicative records. However, no fee may be charged for an update to a previously requested record.
Lastly, paragraph q3iv provides OSHA with a specific right of access.
Under this paragraph, employers must provide OSHA with access to the records required to be created and maintained by this section. This means that employers must allow OSHA
representatives to examine and copy all versions of the COVID19 written plan, as well as all information entered on the COVID19 log, when the OSHA
representative asks for the records during a workplace safety and health inspection. OSHA does not believe that its inspectors need to obtain employee permission to access and review personally-identifiable information entered on the COVID19 log. Gaining this permission would essentially make it impossible to obtain full access to the log in a timely manner, which is needed by OSHA to perform a meaningful workplace investigation. Also, without complete access to the information entered on the log, Agency efforts to conduct immediate intervention or remediation of COVID19 exposure at a specific workplace would be limited.
Finally, OSHA representatives need
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