To qualify for a religious exemption from the health order's vaccination requirement, an employee must demonstrate: the employee has a sincerely held belief that prohibits them from receiving the vaccination, and. or has close contact with other employees or members of the Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employers workforce. OSHA believes that access to this information will allow employees and employee representatives to calculate a percentage of fully vaccinated employees at a workplace, evaluate the efficacy of the employers vaccination policy, raise any concerns identified to OSHA, and actively participate in the employers vaccination efforts. On October 25, 2021, the U.S. My employee has lost their copy of the COVID-19 Vaccination Record card. 29 CFR 1953.5(b). 2.A.8. 8.B. Will OSHA recognize good faith efforts in attempting to comply with the standard for testing delays beyond the employees or employers control? Whatever vaccine the employee receives, the employer must still require employees to provide acceptable proof of vaccination in accordance with paragraph (e) of the standard. Most organized religions do not prohibit vaccinations. To ensure that employers vaccination policies under paragraph (d) are comprehensive and effective, the policies should address all of the applicable requirements in paragraphs (e)-(j) of this standard, including: requirements for COVID-19 vaccination; applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs); information on determining an employees vaccination status and how this information will be collected (as described in paragraph (e)); paid time and sick leave for vaccination purposes (as described in paragraph (f)); notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace (as described in paragraph (h)); information to be provided to employees (pursuant to paragraph (j) e.g., how the employer is making that information available to employees); and disciplinary action for employees who do not abide by the policy. obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee's belief system. The effective date for the ETS is November 5, 2021, which is the date the ETS was published in the Federal Register. However, in states with OSHA-approved occupational safety and health programs (State Plans), state and local government employers with 100 or more employees will be covered by State occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as federal OSHAs requirements in this ETS. The Supreme Court has recognized that the First Amendment establishes a ministerial exception from employment discrimination laws. OSHA thoroughly reviewed current and future projections of the availability of COVID-19 tests, testing supplies, and laboratory capacity. However, when the employee returns to work they must continue to wear a face covering in accordance with paragraph (i) of this ETS. Antigen tests indicate current infection by detecting the presence of a specific viral antigen. Although unvaccinated employees will not have proof of vaccination status, the standard requires the employer to include all employees, regardless of vaccination status, on the roster. If I offer vaccination on-site at the workplace, do I still need to comply with the time for vaccination and recovery requirements? COVID19becausean individual with the virus will pose a direct threat to the health of others. Does the ETS require employers to cover the costs associated with COVID-19 testing? Am I permitted to implement a partial mandatory vaccination policy that requires vaccination for employees that provide services directly to members of the public, but allows other employees the choice of vaccination or testing? Requirements Students. Commission ("EEOC") revised its ongoing Covid-19 Obtaining a medical reason would help your preference. However, employers must not observe more OTC tests at a time than they are able to validate with confidence. consult with counsel and refer to government websites and How does the ministerial exception interact with Executive Order 11246? Yes; however, to satisfy the requirements of the standard an over-the-counter (OTC) test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Photographs of test results are not a substitute for observation by the employer or an authorized telehealth proctor. Employees may make a request for exemption verbally or in writing. No. If pooling procedures are used and a pooled test result comes back negative, then all the specimens can be presumed negative with the single test. Vaccines are acceptable under the standard if they are: The FDA website provides a list of vaccines that have been approved or authorized for emergency use and the WHO website provides a list of vaccines that have been listed for emergency use. 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 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. endstream endobj 151 0 obj <>stream If an OTC test is being used, it must be used in accordance with the authorized instructions. Additionally, if there is more than one way to provide religious accommodation to an employee, the employer may choose which route to take. What documentation will be required to verify vaccination status? Regardless of what plan is implemented under paragraph (d), the employer must comply with the vaccination support requirements under paragraph (f). accommodated employee's share of potentially hazardous or needs to use, such as "I need a religious accommodation" These digitally-read tests are not considered to be self-read and therefore do not require observation by the employer or an authorized telehealth proctor to satisfy the standard. Yes. An official website of the United States government. 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. Yes. 4.A. If the contractor is presently under review, the contractor may notify the OFCCP compliance officer (CO) that it requests a religious exemption. 4.C. 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. Although many OTC COVID-19 tests are sold with two tests, the ETS only requires employers to ensure that employees who are not fully vaccinated are tested for COVID-19 once every seven days (or within seven days of returning to a workplace). 4.H. No. An agency within the U.S. Department of Labor, 200 Constitution Ave NW If an employer chooses to make the vaccine available to its employees on site, they must assure the availability of reasonable time and paid time to each employee to receive the full vaccination series, and reasonable time and paid sick leave to recover from side effects that they may experience the same as they would if the employee received the vaccine off-site. An employee who does not possess their COVID-19 vaccination record (e.g., because it was lost or stolen) should contact their vaccination provider (e.g., local pharmacy, physicians office) to obtain a new copy or utilize their state health departments immunization information system. Yes. A State Plan standard that prohibits employers from requiring vaccination would not be at least as effective as this ETS because OSHA has recognized in this ETS that vaccination is the most protective policy choice for employers to adopt to protect their workplaces. It depends on whether any of your employees are required to comply with the testing/face covering provisions of 1910.501(g)(2) pursuant to an exemption or accommodation. Part-time employees do count towards the total number of employees. Employees are expected to be able to request exemptions from the vaccine requirements for medical or religious reasons, but the details . 6.N. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} No. On the other hand, if a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. 9.A. Duke requires up-to-date vaccination against COVID-19 for all students, faculty, and staff, or an individual must have an approved medical or religious exemption. However, if, for example, the employer had the employees provide their vaccine information on a dated form, or through individual emails retained by the employer, or on an employer portal specifically created for employees to provide documentation status, or the employer created and retained some other means of documentation (e.g., a spreadsheet created prior to the effective date of the ETS documenting oral conversations with employees who confirmed their fully vaccinated status), the employer is considered to have retained records of ascertainment for the purposes of this ETS. And although employers are not required to monitor for or detect fraud, these same prohibitions on false statements and documentation apply to employers. There are two likely types of exemptions. Neither the paid time required to receive any vaccine dose(s) nor the paid sick leave required to recover from side effects experienced following any vaccination dose are retroactive requirements for vaccine dose(s) received prior to the promulgation of this ETS. Yes. What does OSHA mean by promptly notifying employers? What qualifies as work done exclusively outdoors under the ETS?. administered as part of a clinical trial at a U.S. site, if the recipient is documented to have primary vaccination with the active (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been independently confirmed (e.g., by a data and safety monitoring board) or if the clinical trial participant at U.S. sites had received a COVID-19 vaccine that is neither approved nor authorized for use by the FDA but is listed for emergency use by WHO. 0:33. A pastor is encouraging people to donate to his Tulsa church so they can become an online member and get his signature on a religious exemption from coronavirus vaccine mandates. Questions have abounded regarding the scope of an employer's obligation to provide accommodation . If an employee gets vaccinated outside of work hours, such as on a Saturday, do I have to still grant them reasonable time for vaccination? Rather, where an employee's objection In cases where working remotely or in isolation is not possible, OSHA encourages employers to consider flexible and creative solutions, such as a temporary reassignment to a different position that can be performed by telework. 667. Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects under paragraph (f)(2). 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. Nontraditional beliefs are protected but employers may make inquiries about the nature of employees' beliefs. For example, if an employer has 200 employees, all of whom are vaccinated, that employer would be covered. What is CLIA and do I need a CLIA certification? Or rather . Temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect. Experts worry religious exemptions could undercut COVID-19 mandates, even though most major religions don't object to vaccines. Finally, the Guidance instructs that an employer consider all Thus, for employees who have no other means of obtaining proof of vaccination, the standard permits employers to accept attestations meeting the requirements in paragraph (e)(2)(vi) as proof of vaccination. about your specific circumstances. 2.A.9. This includes: any employer policies under paragraph (d); the process that will be used to determine employee vaccination status, as required under paragraph (e); the time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations, as required by paragraph (f); the procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider, as required under paragraph (h); and the procedures to be used for requesting records under paragraph (l). This includes providing paid time for vaccination and time for recovery for each employee. Per the CMS regulation, the State's COVID-19 vaccination policies and procedures must apply to attest that they have lost or are otherwise unable to produce proof required by this section; and. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} The ETS defines what "acceptable proof of vaccination status" means and employers must accept any of the proofs listed in accordance with the terms of the standard. How does the Religious Freedom Restoration Act (RFRA) interact with Executive Order 11246? David Ige in response to a sharp rise in coronavirus cases. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under this ETS even if it does not have 100 or more employees present at any one worksite. Join half a million readers enjoying Newsweek's free newsletters, Gina Carano's 'Do Not Comply' Post Leaves Internet Divided. burdensome work. %PDF-1.6 % Regardless of COVID-19 vaccination status or any COVID-19 testing required under paragraph (g) of the ETS, the employer must immediately remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider and keep the employee removed until the employee: No. Observing the COVID-19 test in real-time ensures the integrity of the results in a way that is not accomplished through retroactive review of videos made by employees. frequent testing for COVID-19, reassigning the employee to job duties that require less interaction with . If gaiters are worn, they should have two layers of fabric or be folded to make two layers; (4) fits snugly over the nose, mouth, and chin with no large gaps on the outside of the face; and (5) is a solid piece of material without slits, exhalation valves, visible holes, punctures, or other openings. Employees who are minors (who may need parental consent to be vaccinated or tested for COVID-19) must be counted in determining if the employer meets the 100-employee threshold for inclusion in the standard, and minors are subject to all requirements of the standard. The EEOC notes that the "sincerity of an employee's stated religious beliefs also is not usually in dispute" but it can be called into question based on factors including past behavior inconsistent with the stated beliefs or if the timing of the request makes it suspect. In short, the update to the EEOC guidance makes clear that employers may administer COVID-19 tests to employees as part of a screening process before allowing employees into the workplace during the current pandemic without violating the Americans with Disabilities Act (ADA). How do you determine what information to include in the written mandatory vaccination policy? Therefore, it is paramount that employees provide truthful information regarding their vaccination status. Therefore, documentation of the negative pooled test result would satisfy the paragraph (g)(1) documentation requirement for each employee in the pool and no additional testing is necessary. However, the employer must retain a copy of the vaccination information retrieved when the QR code is scanned, not just the QR code itself, to comply with the ETS. In addition, paragraph (l)(2) of the ETS provides that by the end of the next business day after a request by an employee or an employee representative, the employer must make available to the requester the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace. @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} Yes. 2.A.4. consult with legal counsel regarding local, state and federal wage The Centers for Disease Control and Prevention (CDC) continues to recommend that gatherings of more than 10 people be canceled, while in gatherings . Workers face religious test to avoid vaccine mandates. Employers should generally assume that a request for a religious exemption is based on sincerely held beliefs but they are permitted to make "a limited factual inquiry" and seek "additional supporting information.". 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. So, if there are any differences, follow what the most recent Health Order says. This includes the testing requirements of paragraph (g) of the ETS. When Federal OSHA promulgates an emergency temporary standard, State Plans must either amend their standards to be identical or at least as effective as the new standard, or show that an existing State Plan standard covering this area is at least as effective as the new Federal standard. However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standards requirements. However, the 2020 religious exemption rule did not provide clarity. However, when an employers policies or procedures change, the employer must provide any updated or supplemental information to employees. The requirements of the mini respiratory protection program section are discussed in the agencys prior rulemaking on 1910.504. Therefore, employers would need to ensure employees continue to test weekly until 2 weeks after receiving their second dose. from a vaccination requirement would impose an undue hardship. 7.J. costs to consider include the burden on and risk to the receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing; meets the return to work criteria in CDCs Isolation Guidance (incorporated by reference, 1910.509); or. On February 26 th, the Supreme Court of the United States issued a shadow docket decision that could foretell sweeping limitations for public health measures, both within and outside the COVID-19 pandemic context. The ETS does not specify the frequency with which employers must provide information to employees. information" and not on "speculative hardships." OSHA will update or add to these FAQs based on questions received from stakeholders. Yes. Andrea Morales for The . may be relevant to sincerity, religious beliefs and adherence to The requirements in paragraph (e)(4) still apply, including maintaining records of each employees vaccination status, preserving acceptable proof of vaccination for each employee who is fully or partially vaccinated, and maintaining a roster of each employees vaccination status. 12.A. How are employees counted in franchisor/franchisee settings? Gade, 505 U.S. at 107. https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/contact-tracing.html. participating in twice weekly COVID-19 screening testing through Penn Cares testing, wearing a mask in all indoor spaces, and . reasonable accommodations exist. OSHA believes that providing this information to employees will help increase the number of employees vaccinated and will facilitate effective implementation of the standard by employers. Does my written policy still meet the requirements of a written vaccination policy under the ETS, even though not every employee. Such a policy must require vaccination of all employees, other than those employees who fall into one of three categories: those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. If I provide my employees with respirators instead of face coverings are there any special requirements to comply with this standard? Yes. In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees vaccination status or where they perform their work. OSHA included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result. No. A year after defying statewide health orders by continuing to hold indoor services, a Sacramento-area megachurch pastor is offering religious exemption letters to those who . Is a self-administered and self-read COVID-19 test acceptable under the ETS if an employee submits a photograph of the test results to their employer after? Occupational Safety & Health Administration, Occupational Safety and Health Administration, Outreach Training Program (10- and 30-hour Cards), OSHA Training Institute Education Centers. accommodation where the employer can demonstrate that it is unable Are employers required to provide employees with access to their COVID-19 test records? The rescission does not remove the Executive Order 11246 religious exemption itself, which still appears in the regulations and is available to qualifying contractors. On March 1, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published the "Rescission of Implementing Legal Requirements Regarding the Equal Opportunity Clauses Religious Exemption Rule" in the Federal Register. 2.A.1. The rest of the employees are partially or fully . How can I verify their vaccination status? 11.C. However, the Guidance allows an employer to 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. Therefore, that employee must be treated as unvaccinated and either receive a vaccination or undergo weekly COVID-19 testing and wear a face covering in the workplace. Employers can observe more than one OTC COVID-19 test at the same time. (Added FAQ). of the ETS preamble). Additionally, if an employer does not specify between different types of leave (i.e., employees are granted only one type of leave), the employer may require employees to use that leave when recovering from vaccination side effects. An employer may require employees simply to explain how COVID-19 vaccination is inconsistent with their religious beliefs, . January 2022 1001 and of Section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation (fact sheet available in. If the employee has previously received other vaccines without concern, the claimed belief may not be sincere or religious. OTC tests that feature digital reporting of date and time stamped results are not considered to be self-read and therefore do not require observation by the employer or an authorized telehealth proctor to satisfy the standard. 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