One subject that has not received a lot of attention relating to COVID-19 requirements for employers is the obligation to make and preserve certain records. Depending on what the record is, and who is making it, these mandates will require employers to maintain records for longer periods of time than under many, if not most, record-keeping policies. As a result, employers should be reviewing and updating if necessary, their record-keeping policies when it comes to employee monitoring, leaves of absence, and sick pay.
The minimum record-keeping requirements for most employment records currently range from one to three years. For example, the EEOC’s regulations relating to Title VII, the ADA, and GINA requires records to be kept for one year from the date of the record or when the applicable decision was made, whichever is later. 29 C.F.R. 1602.14. Under the ADEA and the Equal Pay Act, basic demographic information must be retained for three years, while other records have to be maintained for one year. 29 C.F.R. 1627.3 and 1620.32. Under the Fair Labor Standards Act, payroll records must be maintained for three years, while supplemental basic records must be maintained for two years. 29 C.F.R. 516.5 and 516.6.
Records relating to ERISA and OSHA have much longer retention periods. Under Section 209 of ERISA, records are to be kept for as long as needed “to determine the benefits due or which may become due to such employees.” Particularly when dealing with retiree benefits, this could mean retaining records for decades. Similarly, employee medical records must be maintained under OSHA for the length of the employee’s employment, plus 30 years. 29 C.F.R. 1910.1020.
One other important point to note is that, generally, there is no requirement to create a document (with an exception being for employee pay records). For example, the law does not require an employer to create a document saying why it hired or terminated an employee. However, if the employer does create a document explaining its reasons, that document must be preserved for at least the time periods set forth above.
How COVID-19 Has Affected Employer Record-Keeping Requirements
There are two areas where COVID-19 has directly impacted record-keeping requirements and at least one major indirect impact.
1. Families First Coronavirus Relief Act (FFCRA)
In terms of direct impacts, under regulations issued under the FFCRA, records relating to paid sick leave and expanded family and medical leave must be maintained for four years. 29 C.F.R. 826.140.
The regulations also require employers to actually create documents in at least two circumstances. First, if an employee orally requests paid sick leave or expanded family or medical leave, the employer is required to document that request and retain it for the four year period. 826.140(a). Second, if the employer denies a request, that denial has to be documented and retained for four years. 826.140(b).
In addition to the actual requests for, and decisions relating to, sick leave or expanded medical and family leave, the regulations set forth the types of records which employers should maintain for four years to claim tax credits:
- Documents showing how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework, and paid leave;
- Documents showing how the employer determined the amount of qualified health plan expenses that it allocated to wages;
- Copies of any completed IRS Forms 7200 the employer submitted to the IRS (Form 7200 is the form that qualifying employers file in advance to receive the refundable tax credits for qualified leave and the employee retention tax credit);
- Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.
The second area where COVID-19 has directly impacted employer record-keeping obligations is under OSHA. There are two issues here. First, under 29 CFR 1904, if an employee acquires COVID-19 at work, a record of that must be kept by covered employers for five years. OSHA has issued revised guidance on when a COVID-19 case must be recorded:
- The case must be a confirmed case of COVID-19 (as opposed to suspected or being exposed to someone with COVID-19);
- The case must be work-related as defined under 1904.5 (which requires a reasonable investigation on the part of the employer); and
- Must meet one of the general recording criteria in 1904.7 (which requires medical treatment or missed workdays, which should never be an issue with a confirmed case of COVID-19).
In addition, many employers have implemented health monitoring systems before employees are allowed into the workplace. These systems may include, for example, taking an employee’s temperature and/or requiring them to complete a questionnaire regarding their health (and other activities). To the extent these records constitute medical records then, as set forth above, they must be maintained for the employee’s length of employment, plus thirty years. To constitute a medical record under OSHA, the record must have been made to be made or maintained by a physician, nurse, or other health care personnel or technician. 29 CFR 1910.1020(c)(6)(i). In other words, under current OSHA guidance, if the record is made and kept by the employer, it would not constitute a medical record that has to be maintained for that period of time.
3. Indirect Impact on Record-Keeping Requirements
In addition to the direct impact imposed by regulations, much has been written about new potential theories of liability when employers take action or fail to take action, against employees who may be more susceptible to COVID-19. While the type of records and record-retention periods relating to such decisions will be the same as those set forth under the Current Standards, employers need to ensure that they are keeping records that will enable them to defend against charges and lawsuits raising such claims.
4. Recommendations for Employers
The following are recommended steps that employers should take to ensure compliance with the law and put them in a position to be able to defend against employment-related claims:
- If an employer does not have a record-retention policy, this is an excellent time to develop such a policy that not only covers employment records but all records that businesses are required to retain. We can help with that process.
- Assuming you have a record-retention policy, it should be reviewed whether the employer is (a) retaining the appropriate records and (b) retaining those records for a long-enough period of time. If not, the policy needs to be updated.
- Ensure that the employer has a procedure in place to investigate whether an employee with a confirmed case of COVID-19 was infected at work. This will not only aid in complying with OSHA but will also be important in defending worker’s compensation claims.
- If the employer has utilized medical personnel to take employee temperatures and/or complete questionnaires that include information on employee health, segregate those records in a confidential file separate from the employee’s personnel file, and make arrangements to retain those records for the length of the employee’s employment, plus 30 years.