Alternatively, the employer could proctor the OTC test itself. The FDA has authorized point-of-care tests that can be used at a place of employment when the facility is operating under a CLIA certificate of waiver. Further, the rescission reestablishes OFCCPs long-established view, consistent with the views of DOJ and the EEOC as well as the courts, that the exemption does not permit a qualifying employer to discriminate on the basis of race, color, sex, sexual orientation, gender identity, or national origin, even if such discrimination is religiously motivated. The updated and expanded COVID-19 technical assistance adds a new section with information related to requests by applicants or employees seeking to be excused from COVID-19 vaccination requirements due to sincerely held religious beliefs, practices . .h1 {font-family:'Merriweather';font-weight:700;} (i.e., the cumulative cost or burden on the employer). Rev. In considering virus testing options, the Guidance does not address who pays for the test itself or whether the time spent to get tested is compensable. with the employee before withdrawing it, and consider whether there Occupational Safety & Health Administration, Occupational Safety and Health Administration, Outreach Training Program (10- and 30-hour Cards), OSHA Training Institute Education Centers. Get answers to questions about what the COVID-19 Health Order says about vaccination and testing. (Added FAQ), 6.X. Equal Employment Opportunity Nontraditional beliefs are protected but employers may make inquiries about the nature of employees' beliefs. OSHA anticipates that the ETS will be in effect for six months from the date of publication in the Federal Register. In the event that a State Plan fails to adopt this ETS, or a comparable standard, such failure to act will result in a determination by Federal OSHA that the State Plan is not at least as effective as Federal OSHA. OSHA will look at cumulative time spent indoors to determine whether that time is de minimis. Employers must begin compliance with the testing requirements of paragraph (g) only for employees who have not yet received the requisite number of doses for a primary vaccination series (i.e., employees who have not received any doses, employees who have received only one dose of a two-dose series) by February 9, 2022. ol{list-style-type: decimal;} Employers are required to support COVID-19 vaccination for each employee by providing reasonable time to each employee during work hours for each of their primary vaccination dose(s), including up to four hours of paid time, at the employees regular rate of pay, for the purposes of vaccination. As governments and businesses implement COVID-19 vaccine mandates, increasing numbers of people are seeking exemption on religious grounds. burdensome work. accommodation process to demonstrate that they engaged in a The agency recognizes that securing vaccination documentation may be challenging for some members of the workforce, such as migrant workers, employees who do not have access to a computer, or employees who may not recall who administered their vaccines (e.g., if the vaccination was provided at a temporary location, such as a church, or during a state or local mass vaccination campaign). The mini respiratory protection program is designed to strengthen employee protections with a small set of provisions for the safe use of respirators designed to be easier and faster to implement than the more comprehensive respiratory protection program under 29 CFR 1910.134. Yes. See https://www.dol.gov/agencies/ofccp/contact. Title VII does not protect "social, political, or economic views, or personal preferences" and so an exemption cannot be sought on that basis. No. By defining what constitutes acceptable proof of vaccination under the ETS, OSHA is ensuring that employers can accept proof meeting the requirements of paragraph (e) for purposes of compliance with the standard. This includes providing paid time for vaccination and time for recovery for each employee. explain the religious nature of their belief. Request for a Religious Exception to the COVID-19 Vaccination Requirement. Under paragraph (l)(3)(i), the employer must provide its written policy to the Assistant Secretary for examination and copying within 4 business hours of a request. The requirements of the mini respiratory protection program section are discussed in the agencys prior rulemaking on 1910.504. 8.C. Postal Service is treated as a private employer,see 29 USC 652(5), and it is therefore required to comply with this ETS in the same manner as any other employer covered by the Act. However, if testing for COVID-19 conflicts with a worker's sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. (Added FAQ), 4.J. The effective date for the ETS is November 5, 2021, which is the date the ETS was published in the Federal Register. In instances where an employee is unable to produce acceptable proof of vaccination under paragraphs (e)(2)(i) - (e)(2)(v), paragraph (e)(2)(vi) provides that a signed and dated statement by the employee will be acceptable. Yes. recognized conditions that prevent someone from receiving the COVID-19 vaccine, If an employee believes they have a qualifying condition, they must provide their employer (or the business where they are working) with a signed statement from a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption. The agency believes that making this information available to employee representatives will help ensure compliance with the requirements of the ETS and thereby protect workers. And a Texas-based . Does rescinding the 2020 religious exemption rule affect OFCCPs Guidelines on Discrimination Because of Religion or National Origin? mandates.1. The ETS requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. Employers have the flexibility to select the testing scenario that is most appropriate for their workplace. No. No. Do over-the-counter (OTC) tests that feature digital reporting of date and time stamped results need to be observed by the employer or an authorized telehealth proctor? Health care workers granted religious or medical exemptions are required by the state to wear masks and undergo coronavirus testing twice per week if they work in clinical roles. OSHA included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result. Operators of high-risk settings must require all workers to have their initial vaccine series and 1st booster once eligible unless those workers meet the requirements for qualified medical or religious belief exemption. accommodated employee's share of potentially hazardous or A VIP StarNETWORK medical staff member prepares a Pfizer-BioNTech coronavirus (COVID-19) vaccine at a #VAXTOSCHOOL pop-up site at Life of Hope Center on October 21, 2021 in New York City. The following list includes the acceptable documentation for proof of vaccination: To be acceptable as proof of vaccination, any documentation should generally include the employees name, type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Independent contractors do not count towards the total number of employees. obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee's belief system. please see Schnader's Covid-19 Resource Center at www.schnader.com/blog/covid-19-coronavirus-resource-center Are independent contractors included in the 100-employee threshold? Does the ETS apply to U.S. The ETS establishes minimum requirements for employers. Employers also should be aware of state and local laws that may The Guidance provides that an employer generally should assume OSHA will regard a federal agencys compliance with this requirement, and the related Safer Federal Workforce Task Force guidance issued under section 4(e) of Executive Order 13991 and section 2 of Executive Order 14043, as sufficient to meet the agencys obligation to comply with this ETS under Section 19 of the OSH Act and Executive Order 12196. Those who have received . (Revised FAQ). Readers should Federal government websites often end in .gov or .mil. What qualifies as work done exclusively outdoors under the ETS? When autocomplete results are available use up and down arrows to review and enter to select, or type the value, Operators of high-risk settings must require all workers to, have their initial vaccine series and 1st booster once eligible. Employees may make a request for exemption verbally or in writing. Mondaq Ltd 1994 - 2023. No. (Added FAQ), 6.V. Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the ETS. By Greg Angel Orlando. OFCCP will do so in consultation with the Solicitor of Labor and the Department of Justice, as necessary. As a best practice, the Guidance recommends that an employer In some cases, state immunization records may not include one or more of these data fields, such as clinic site; in those circumstances, an employer can still rely upon the State immunization record as acceptable proof of vaccination. COVID-19 VACCINATION AND TESTING POLICY AND PROCEDURE Policy #: To be assigned. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. to a Covid-19 vaccination requirement is not religious in nature, Does the ETS preempt State or local requirements mandating face coverings in indoor public spaces, or that members of the public provide proof of vaccination or recent COVID-19 testing to enter restaurants, bars, or other public spaces? Will retroactive review of videos made by employees self-administering and self-reading COVID-19 tests meet the requirements for employer or authorized telehealth proctor observation? This Alert is based on information available at the time of right to withdraw a previously granted accommodation if it is no For more information, OSHA has prepared a fact sheet explaining these reporting requirements. The Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employees mouth for reasons related to their job duties, when the work requires the use of the employees uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee). participating in twice weekly COVID-19 screening testing through Penn Cares testing, wearing a mask in all indoor spaces, and . Promptly notifying the employer means notifying the employer as soon as practicable before the employee is scheduled to start their shift or return to work. The ministerial exception prohibits the government from interfering with the ability of certain religious organizations to make employment decisions about its ministers, a category that includes, but is not limited to, clergy. should address issues involving requests for religious Most San Franciscans have been doing an excellent job when it comes to protecting public health, and we have no reason to believe that will change. 4.E. If you have problems accessing . 12.C. An employer that merely obtains an employees test result information verbally and makes no record of the test would not satisfy the record maintenance requirements of the standard. Because antigen testing in point-of-care locations will typically produce results within minutes, the use of antigen testing should not result in an inability to provide the employer with test results in a timely fashion. No. However, employers must not observe more OTC tests at a time than they are able to validate with confidence. Each of the original specimens collected in the pool must be tested individually to determine which specimen(s) is (are) positive. The maximum of four hours of paid time that employers must provide for the administration of each primary vaccination dose cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. The Equal Employment Opportunity Commission's Oct. 25 updated guidance finally explains factors employers should consider when deciding whether to grant an employee's request for exemption based on a religious belief from a mandatory Covid-19 vaccination policy. A Biden administration mandate will require businesses with 100 or more employees to implement a vaccine and COVID testing policy by January 4 or face fines. In the event that the employee is in the workplace when they receive a positive COVID-19 test result or diagnosis of COVID-19, promptly notifying the employer means notifying the employer as soon as safely possible while avoiding exposing any other individuals in the workplace. Part-time employees do count towards the total number of employees. or "I demand my rights under Title VII." Postal Service workers?). endstream endobj 150 0 obj <>stream However, people will be able to apply for a religious exemption from any employers' vaccine mandate under Title VII of the Civil Rights Act of 1964. Under the current law of the Constitution, people have no right to a religious exemption from a rule unless there is also a secular exception or gap in coverage that would undermine the government's interests just as much. Such reasonable 5.D. 2.A.4. When setting the cap, an employer would not be expected to account for the unlikely possibility of the vaccination resulting in a prolonged illness in the vaccinated employee (e.g., a severe allergic reaction). What if my employee claims they have a qualifying medical condition? 4.D. 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. In the case of a claimed religious exemption, the employee must establish that they have a sincere religious belief that prevents them from receiving the vaccine. While there are very few cases on point at the university level, extensive jurisprudence at the K-12 level makes it clear that a vaccine mandate does . Employees receiving the Pfizer-BioNTech series therefore have to begin their primary vaccination series (i.e., get their first dose) on or before January 19, 2022 and get their second dose 21 days later. No. But even if most employers were to forgo that option, and most of their employees were to choose not to be vaccinated, there would still be adequate testing capacity. Workers may be exempt from the vaccination requirements under sections (1) and (2) only upon providing the operator of the facility a declination form, signed by the individual, stating either of the following: (1) the worker is declining vaccination based on Religious Beliefs, or (2) the worker is excused from receiving any COVID-19 vaccine . 7.F. 3.B. The rescission does not remove the Executive Order 11246 religious exemption itself, which still appears in the regulations and is available to qualifying contractors. In addition, this information will help OSHA determine what to focus on in an investigation. good-faith, interactive process to determine a reasonable Once the employee has provided a signed and dated attestation that meets the requirements of paragraph (e)(2)(vi), the employer no longer needs to seek out one of the other forms of vaccination proof for that employee and, depending on the content of the attestation, the employer may consider that employee either fully or partially vaccinated for purposes of the ETS. Written comments on any aspect of this ETS and whether the ETS should become a final rule must now be submitted by January 19, 2022 to www.regulations.gov in Docket number OSHA-2021-0007. Employers have flexibility to communicate this information to employees using any effective methods that are typically used in their workplaces, and may choose any method of informing employees so long as each employee receives the information specified in the standard in a language and at a literacy level they understand. Additionally, employers should allow their employees to make use of any accrued leave in accordance with the employers policies and practices on use of leave. highly anticipated Emergency Temporary Standard (ETS) is expected 11.C. A CLIA certificate of waiver can be issued by the Centers for Medicare and Medicaid Services (CMS). or has close contact with other employees or members of the How will OSHA deal with an employer who has acted in good faith to implement a vaccine mandate, but still has a small number of unvaccinated workers, even though the vast majority of its covered employees are fully vaccinated? Without the provision of this information to employees and their representatives, the only potential check on whether the employer is complying with the requirements of the ETS would be OSHA inspections. A religious exemption is based on YOUR sincerely held religious beliefs, not what one diocese says, or the pope, or grandma Ethel. Under 29 CFR part 1904, employers must generally provide access to the 300logto employees, former employees, and their representatives with the names of injured or ill employees included on the form. However, if testing for COVID-19 conflicts with a workers sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. An employer who grants a religious accommodation may later choose to discontinue it depending upon changing circumstances and hardships, while employees may seek additional or different accommodation if their beliefs or practices change. On the second question, the overwhelming weight of Title VII case law confirmsconsistently with the views of the EEOC and DOJthat qualifying religious employers generally may make decisions about whether to employ individuals based on acceptance of and adherence to religious tenets, but may not insist on compliance with such tenets to the extent it would result in violation of the other nondiscrimination provisions, e.g., the prohibitions on discrimination on the basis of race, sex, and sexual orientation, and the prohibition on retaliating against employees because they have asserted their legal rights. Are employers obligated to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) 1.C. No. No. information" and not on "speculative hardships." For the Moderna COVID-19 vaccine, the primary vaccination series takes 28 days to complete. 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