by Erica Rice

Note: This article only applies to local governments and state agencies that are not healthcare providers. Any public health agencies, public hospitals, or health departments should follow the retention periods in Schedule HR (for local governments) or in their specific agency retention schedule.

Since the start of the 2020 pandemic, many organizations have started collecting information on the people visiting their facilities: temperature checks, symptom reporting, test results, etc. If your local government or state agency has been screening people for COVID-19 symptoms, you’re probably wondering what to do with all those records.

There is no one perfect record series for COVID-19 screening records, as the administrative and legal value will vary depending on who is conducting the screening, whether information is being collected on citizens or employees, and what specific questions are being asked.

Recordkeeping

TSLAC does not set rules on what types of records must be created; we are here to advise how long to keep your records (and how to protect them) once you have decided to start creating them. This will be determined by the purpose and function of the records. The questions to ask are: What purpose do your health screening polices serve? What functions are these records documenting?

If your agency is requiring your employees to be symptom-free before they return to work, this may entail a self-certification, a questionnaire (verbal or written), a body temperature scan, etc. TSLAC has no requirement for agencies to document this information—in fact, we advise considering if this type of information needs to be recorded at all. Consult your legal counsel to determine which records, if any, need to be created for COVID-related health screening.

Depending on the purpose of your screening procedures, this information may be transitory. Transitory information includes records of temporary usefulness that are only briefly needed to fulfill a function. In this case, the transitory information—an employee’s declaration that they are symptom-free and a verification of their normal body temperature—is only temporarily useful in the function of determining his or her fitness to work on-site. There may be no ongoing administrative need to retain this information. Work with your executive team and legal counsel to determine if there is any long-term administrative or legal value in this information.

Transitory Information can be found on Schedule GR for local governments:

Record Number	Record Title	Record Description	Retention Period	Remarks
GR1000-50	TRANSITORY INFORMATION	Records of temporary usefulness that are not an integral part of a records series of a local government, that are not regularly filed within a local government’s recordkeeping system, and that are required only for a limited period of time for the completion of an action by an official or employee of the local government or in the preparation of an ongoing records series…	AV	Retention Note: Records management officers should use caution in assigning this record series to records of a local government to make certain they are not part of another records series listed in this schedule or, for records series unique to an agency, are not part of a records series that documents the fulfillment of the statutory obligations of the agency or the documentation of its functions…

Transitory Information also appears on the state agency RRS:

Record Number	Record Title	Record Description	Retention Period	Remarks
1.1.057	Transitory Information	Records of temporary usefulness that are not an integral part of a records series of an agency, that are not regularly filed within an agency’s recordkeeping system, and that are required only for a limited period of time for the completion of an action by an official or employee of the agency or in the preparation of an ongoing records series. Transitory records are not essential to the fulfillment of statutory obligations or to the documentation of agency functions…	AC AC = Purpose of record has been fulfilled.	CAUTION: Records management officers should make certain records are not part of another records series listed in this schedule or, for records series unique to an agency, are not part of a records series that documents the fulfillment of the statutory obligations of the agency or the documentation of its functions…

If your local government or state agency determines that COVID-19 health screening information should be recorded, and that it rises above the level of transitory information, you have a few choices.

Are they considered medical records?

Typically, employers are not permitted to ask their employees for personal health information—medical exams should be performed by licensed healthcare practitioners, and these practitioners should also be responsible for creating and maintaining medical records. However, because of the extraordinary circumstances of the pandemic, the Equal Opportunity Employment Commission (EEOC) released guidance allowing exceptions to the Americans with Disabilities Act (ADA). Employers may ask their employees if they are experiencing virus symptoms, and they may scan body temperatures.¹ These types of questionnaires and exams may be considered medical records if they are recorded and maintained with the intention of creating a medical file.

How long do we keep employee medical records?

Employee medical records are covered on the RRS for state agencies and on Schedule GR for local governments.

For local governments, record series GR1050-22b(2) sets the retention for medical monitoring that is required for certain positions. If your local government is requiring employees to record temperatures or state symptoms before entering the building or returning to work, and you choose to retain this as part of the employee’s medical record, then you will keep these records for two years. In this case, “US [Until Superseded]” can be treated as the date the record was created:

Record Number	Record Title	Record Description	Retention Period	Remarks
GR1050-22b	MEDICAL AND EXPOSURE REPORTS	Health or physical examination reports or certificates of employees for whom periodic monitoring of health or fitness is required. (2) For all other employees.	US + 2 years.	By regulation – 29 CFR 1910.1020(d)(1)(i)-(iii).

Note: Astute readers of this series will see that there is another option for Medical and Exposure Records: GR1050-022b(1). This subseries is for employees exposed to toxic substances on the job. That may lead you to ask: isn’t COVID-19 a toxic substance? Well, the cited regulation explains that exposure “does not include situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations.” In other words, this regulation does not apply if anyone can be exposed to the coronavirus outside of work.²

For state agencies, we have a similar series on the RRS:

Record Number	Record Title	Record Description	Retention Period	Remarks
3.1.024	Physical Examinations / Medical Reports	Medical or physical examination reports or certificates of employees for whom periodic monitoring of health or fitness is required.	AC + 2 years. AC= Until superseded or termination of employment.	CAUTION: Does not include pre-employment physical examinations. See RSIN 3.1.014. Does not include medical or physical examinations for employees exposed to hazardous materials. See RSIN 5.4.016a/b.

Consider that if you are not already maintaining medical records for your employees, you will want to have a good reason to start. Review your reasons for wanting to maintain confidential medical information, as well as the risks of doing so.

Where should we file these employee records?

These are personnel files, so Human Resources is the ideal records custodian for employee health screenings. The EEOC requires medical records to be retained separately from other personnel files because they contain confidential health information—if you already have separate medical files for employees, you may store COVID-19-related records there.³ If you decide that health screening data is transitory information, it should not be regularly filed in your recordkeeping system; the data should be destroyed as soon as it is no longer administratively valuable (i.e. a determination has been made that the employee may or may not work on-site, and documentation is no longer needed to justify the decision.)

What about visitors and non-employees?

You may also be requiring visitors to provide symptom information or to be scanned for body temperature readings before entering a government building, as part of the check-in process. Similar to the employee screening data, you may also consider visitor data collection to be transitory information—it does not necessarily need to be recorded and/or maintained any longer than it is administratively valuable. Consult with your legal counsel to determine if visitor health screening information should be documented.

For local governments, these records may be retained as Visitor Control Registers:

Record Number	Record Title	Record Description	Retention Period	Remarks
GR1075-22	VISITOR CONTROL REGISTERS	Logs, registers, or similar records documenting visitors to limited access or restricted areas.	3 years.	Retention Note: If the visitor control register is needed as part of an investigation it should be retained with the investigation case file PS4125-05.

State agencies have an equivalent series:

Record Number	Record Title	Record Description	Retention Period	Remarks
5.4.011	Visitor Control Registers	Logs, registers, or similar records documenting visitors to limited access or restricted areas of agency facilities.	3 years.

Keep in mind that your government is still responsible for protecting any confidential information provided on these logs. Consider how much information you want to ask for and if medical information should even be recorded in the first place. The more confidential information you record, the more risk you assume for potential breach of confidential data.

What purpose do these records serve?

Some local governments and state agencies are also requiring employees and visitors to self-certify that they are symptom-free or to sign acknowledgments that the organization is not liable for any coronavirus exposure. If your records include any type of waiver or acknowledgement of responsibility, rather than functioning as a medical exam, then Waivers of Liability may be a better fit.

For local governments:

Record Number	Record Title	Record Description	Retention Period	Remarks
GR1000-42	WAIVERS OF LIABILITY	Waivers of liability, including statements signed by volunteers acknowledging non-entitlement to benefits, agreeing to abide by local government policies, etc.	3 years from date of cessation of activity for which the waiver was signed.	Retention Note: If an accident occurs to any person covered by a signed waiver of liability, it must be retained for the same period as accident reports.  See item number GR1000-20 in this schedule.

For state agencies:

Record Number	Record Title	Record Description	Retention Period	Remarks
1.1.078	Waivers of Liability	Waivers of liability, including statements signed by volunteers acknowledging non-entitlement to benefits, agreeing to abide by state agency policies, etc.	AC+3 AC= Date of cessation of activity for which the waiver was signed.	CAUTION: If an accident occurs to any person covered by a signed waiver of liability, it must be retained for the same period as accident reports. See RSIN 5.4.001 and 5.4.014.

Pro Tip: A similar series for policy acceptance that applies only to employees is Employee Acknowledgement Forms (GR1050-37 for local governments; 3.1.041 for state agencies).

Do you still want an all-in-one series?

Keep in mind that state agencies can always amend their schedules to add a custom series, and local governments may adopt internal amendments to TSLAC’s published schedules. Custom series must have retention periods that meet or exceed the legal minimums. For COVID-19 health screening records, this might mean at least two years for employees, at least three years for visitor logs, and/or at least three years for waivers of liability. Remember that employee medical information must be maintained separately from all other records. So if you are creating one series to cover all health screenings, you may still end up needing to file these records separately. Contact your analyst for help with creating a custom record series.

For more records related to COVID-19, check out our blog post: “COVID-19 Records and How Long to Keep Them.”

1. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” U.S. Equal Employment Opportunity Commission, June 17, 2020, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
2. Occupational Safety and Health Standards: 1910.1020 – Access to employee exposure and medical records, U.S. Department of Labor, Occupational Safety and Health Administration, https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.1020.
3. “What You Should Know About COVID-19,” U.S. Equal Employment Opportunity Commission.