FAQ: OSHA ETS FOR COVID-19 VACCINATION & TESTING.

COVID TESTING SOLUTIONS Keep your employees SAFE and your company COMPLIANT with the COVID-19 OSHA ETS and HIPAA FAQ: OSHA ETS FOR COVID-19 VACCINATION & TESTING ISSUED NOVEMBER 21 WHAT DOES “OSHA” AND “HIPAA” MEAN? Created by the Congress and being part of the United States Department of Labor, OSHA stands for “Occupational Safety and Health Administration”. Its mission is to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance.

HIPAA (Health Insurance Portability and Accountability Act) is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient's consent or knowledge.

WHAT IS THE MEANING OF THE TERM “ETS”?

ETS means “Emergency Temporary Standard”. It is issued in response to a “grave danger” posed to workers. The ETS is deemed necessary to protect employees from dangerous exposure, and while an ETS is “temporary in nature, it serves a proposal for a permanent standard.”

IS COVID-19 CONSIDERED DANGEROUS IN WORKPLACE? YES! OSHA has determined COVID-19 is a grave danger to employees based upon the severe consequences associated with exposure to the virus along with evidence demonstrating the transmissibility of the virus in the workplace. In addition, variants (mutations) of the virus continue to pose a big threat to the public.

BUT WHAT DOES “OSHA ETS” MEAN FOR COMPANIES? Within 60 days of November 5, 2021, OSHA is requiring applicable employers (with over 100 employees) to institute a policy requiring, in addition to face covering and other personal protective measures, COVID-19 testing for unvaccinated or partially vaccinated employees at least once per week.

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COVID TESTING SOLUTIONS Keep your employees SAFE and your company COMPLIANT with the COVID-19 OSHA ETS and HIPAA WHAT ARE THE TESTING METHODOLOGIES APPROVED? The ETS references two specific testing methods to be utilized: NAATS and Antigen Tests.

NAATs, or nucleic acid amplification tests, are molecular tests that detect genetic material.

Antigen tests are “in vitro diagnostic tests” for COVID-19 infection and are categorized as follows: (1) OTC employee self-tests that are observed by employers or authorized telehealth proctors; (2) point-of-care (POC) or OTC tests performed by employers with a CLIA (Clinical Laboratory Improvement Amendments) certificate of waiver; and (3) other FDA cleared, approved, or authorized antigen tests that are analyzed in a CLIA certified laboratory setting. The FDA has authorized POC tests that can be used at a place of employment when the facility is operating under a CLIA certificate of waiver.

WILL COMPANIES HAVE TO KEEP RECORDS AND REPORT TEST RESULTS? So long as the ETS is in effect, employers are to maintain a confidential record of each employee’s vaccination status and test results. Companies are required to securely retain records related to the employee’s identity, testing methodology, as well as the qualitative and quantitative test results. Employers must maintain and keep confidential the vaccination status and testing results for each employee to remain in compliance with HIPAA and other regulations. There is no defined time for record retention, but ETS mandates that records must be retained for the duration of the ETS effective period.

HOW CAN I KEEP MY COMPANY COMPLIANT? Based upon the grave danger at present, OSHAs ETS seeks to implement a uniform nationwide response to the pandemic. While certain groups have been excluded from the ETS (less than 100 employees, 100% remote and/or outside workers), OSHA states that employees “in all private sector industries are affected by this ETS to some extent.”

Therefore, in addition to promoting vaccination efforts in the employment context in the ETS, within 60 days OSHA is requiring “employers to ensure that employees who are not fully vaccinated and who report to work at least once every seven days … are … tested for COVID -19 at least once every seven days” through a test that has been cleared, approved, or otherwise authorized by the FDA.

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