regulations or guidance regarding Covid-19 vaccinations, and adjust Executive Order 11246 prohibits federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. What types of conditions qualify for an exemption from the vaccination requirement under the health order? Are the vaccination records and roster considered medical records? Yes. 6.X. "Your physicians cannot be giving out 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. 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. A self-administered and self-read over-the-counter (OTC) test would not satisfy the requirements of the ETS, even if employees submit photographs of the OTC test results after. The statement should not reveal any underlying medical condition or disability. No. to reasonably accommodate an employee's religious belief 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. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. At Scripps Health . With few exemptions from the vaccine mandate available, which are largely limited to . The matter is a bit less certain for public colleges and universities. information if an objective basis exists for questioning either the My workplace has a mixture of vaccinated and unvaccinated workers and I do not want to require those unvaccinated workers to get vaccinated. (Revised FAQ). Likewise, an employer has the get tested is compensable. Under section 18 of OSH Act, States that wish to assume responsibility for the development and enforcement of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated may submit a State Plan to OSHA for approval. %PDF-1.6 % Similarly, the record maintenance requirements cannot be fulfilled if an employee merely shows the employer their documentation of the test result or the employer simply observes the test result (e.g., by seeing the employees test results after observing the test in person without any documentation). 11.A. This requirement applies to the primary vaccination dose(s) necessary to achieve full vaccination (one or two doses depending on the vaccine). Under the ETS, a COVID-19 test must be a test for SARS-CoV-2 that is: Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer. No. OSHA will exercise enforcement discretion to forgo programmed inspections where employers have made a good faith effort to implement a mandatory vaccination policy and have reached fully vaccinated status for the vast majority of covered employees at a particular worksite. 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 . 6.A. Only employees who are not fully vaccinated are required to wear a face covering under the standard when indoors and when occupying a vehicle with another person for work purposes, with exceptions listed in the next FAQ (8.C.). No. consult with counsel and refer to government websites and Therefore an employer may choose to administer COVID19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the cost or inconvenience to the employer. Booster shots and additional doses are not included in the definition of fully vaccinated under the ETS. The employer may validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. their vaccine policy or program accordingly. INDIANAPOLIS As more and more workplaces and colleges require employees and students to be vaccinated, some Indiana residents are responding with an increasingly familiar refrain: It's against my religion. The Centers for Disease Control and Prevention (CDC) continues to recommend that gatherings of more than 10 people be canceled, while in gatherings . publishing. (Added FAQ), 6.R. Revised FAQs 6.P., 12.A., and 12.B. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. employees who are fully vaccinated, how many employees and To be a valid COVID-19 test under this standard, a test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. The ETS does not contain specific requirements for the employer to establish or maintain records of employee notifications of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider. impose additional requirements on employers or provide greater Paragraph (d)(2) is a limited exemption from the mandatory vaccination policy requirement of paragraph (d)(1). 8.D. Per the CMS regulation, the State's COVID-19 vaccination policies and procedures must apply to May pool testing be used to comply with the ETS? If so, an employer who has both vaccinated and unvaccinated employees will have to develop and include the relevant procedures for two sets of employees in the written policy. For example, an employer does not have to accommodate an employee's religious beliefs if the accommodation is costly, infringes on other employees' job rights or benefits, compromises workplace safety, decreases workplace efficiency, or requires other employees to do more than their share of potentially hazardous or burdensome work. OSHA recognizes that 30 days is a short timeframe. 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? COVID-19 tests that are cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test) are permitted under the ETS when used as authorized by the FDA and with a Clinical Laboratory Improvement Amendments of 1988 (CLIA) certification when appropriate. (Added FAQ), 6.S. Similar to some state government registries, licensed healthcare providers or pharmacies may use QR codes to provide digital COVID-19 vaccination records. Are employers required to provide employees with access to their COVID-19 test records? Form is for GSA employee use only. 2.A.8. Finally, the Guidance instructs that an employer consider all Antigen tests indicate current infection by detecting the presence of a specific viral antigen. held religious beliefs. 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. About 5% of the hospital system's 1,830 employees have filed for a religious or medical exemption, Troup told KARK, an NBC affiliate in Arkansas. This ETS does not require employers to provide paid time off to any employee for removal as a result of a positive COVID-19 test or diagnosis of COVID-19; however, paid time off may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. 667(c)(2). UPDATED 8:07 PM ET Dec. 17, 2021. The updated EEOC Guidance instructs that employees seeking a However, the EEOC highlights the fact that beliefs can change over time, as can the degree of adherence to a belief, and therefore the employer "should not assume that an employee is insincere simply because some of the employee's practices deviate from the commonly followed tenets of the employee's religion, or because the employee adheres to some common practices but not others.". .table thead th {background-color:#f1f1f1;color:#222;} obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee's belief system. Some of my employees are concerned they may experience side effects from the vaccine. The exemption in paragraph (e)(5) applies only for each employee whose fully vaccinated status has been documented prior to the effective date of the standard. to reflect the extension of the public comment period. 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. them may change over time. 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. guide to the subject matter. 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. By comparison, OFCCPs 2020 religious exemption rule: (1) created a test for qualifying religious organizations that deviated from the Title VII case law that governs interpretation of the Executive Order 11246 religious exemption; (2) imposed a broad rule of construction that could exempt qualifying religious organizations from Executive Order 11246s nondiscrimination requirements on protected grounds other than religion, which was inconsistent with the presidential intent that the Executive Order 11246 religious exemption should be construed consistent with the Title VII exemption on which it is based; and, in its preamble, (3) espoused an inappropriately categorical approach to how OFCCP would handle potential Religious Freedom Restoration Act (RFRA) claims, including an incorrect assertion that, in assessing such claims, OFCCPs interests in prohibiting discrimination in government contracting are compelling only with respect to race discrimination. Operators are encouraged to consult with their own legal counsel before approving or denying an employee's request for an exemption from the vaccination requirement. where the religious accommodation would impair workplace safety, 8.B. Will OSHA permit employers to follow updated versions of CDCs Isolation Guidance incorporated by reference in 1910.501(h)(2)(ii)? Over time, however, the employer may decide that it wants to accept electronic proof of test results. accommodations have included deviation from company dress codes, How must employees be counted to determine if the employer meets the 100-employee threshold for coverage under this ETS? No, the ETS does not preempt generally applicable requirements meant to protect public health by helping to prevent the spread of COVID-19 in public spaces. The employer must maintain a record of each test result required to be provided by each employee pursuant to this ETS or obtained during tests conducted by the employer. Until September 1st, 2022, all workers at state agencies, authorities, and public colleges and universities, are required to be fully vaccinated or submit to testing. There is no law . How can I sign up to participate in these educational events and opportunities? United States: EEOC Clarifies Religious Exemptions To Covid-19 Vaccine Mandates 02 November 2021 . 2.A.4. 9.B. 144 0 obj <> endobj Under the health order, an employeein a high-risk setting may be exempt from the COVID-19 vaccine mandate only under specific circumstances. 3.E. 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. An employer may make other efforts to facilitate vaccination of its employees by, for example, hosting a vaccine clinic at the workplace (e.g., mobile trailer) or partnering with another entity, such as a pharmacy or healthcare provider, so that employees can be vaccinated at the workplace. Title VII forbids employment discrimination based on religion and grants employees and job applicants the right to request an exemption, also known as a religious or reasonable accommodation, from an employer's requirement if that requirement conflicts with a person's sincerely held religious beliefs. 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. 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. Even when the requirements of the ETS do not apply to specific truck drivers pursuant to paragraph (b)(3), those truck drivers are still counted for purposes of the 100-employee threshold for coverage under paragraph (b)(1) of the ETS. When an employee makes a claim for religious exemption, the employer may attempt to determine whether the belief is, in fact, religious or secular in nature. mandates and accommodation, it does not answer them all. If I decide to have a mandatory vaccination policy, does OSHA require me to continue to employ an unvaccinated person who refuses to get vaccinated? OSHA notes that clinic sites can include temporary vaccination facilities used during large vaccine distribution campaigns, such as schools, churches, or sports stadiums. State Plans may also choose to adopt more protective occupational safety and health requirements. Yes. Rev. Stay home when feeling sick, get tested, know your choices for vaccines and masks. (Revised FAQ), 6.Q. Guidance states that as a best practice, the employer should tell .manual-search ul.usa-list li {max-width:100%;} =upDHuk9pRC}F:`gKyQ0=&KX pr #,%1@2K 'd2 ?>31~> Exd>;X\6HOw~ acceptable accommodation options for unvaccinated persons, The individual employee test results would be necessary to satisfy the employee documentation requirements of paragraph (g)(1). 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. needs to use, such as "I need a religious accommodation" Nothing in the ETS, however, prevents employers from agreeing with employees and their representatives to implement additional measures, and the ETS does not displace collectively bargained agreements that exceed the requirements of the ETS. 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. No. 1.https://www.eeoc.gov/newsroom/eeoc-issues-updated-covid-19-technical-assistance-0, 2.https://www.cdc.gov/coronavirus/2019-ncov/. The employer is required to comply with the requirements of the ETS as long as it is in effect. 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). and 6.K. 29 CFR 1953.5(b). 29 U.S.C. Such reasonable endstream endobj 150 0 obj <>stream OFCCP has a webpage dedicated to educating contractors, stakeholders, and the general public about the rescission of the 2020 rule. The ETS requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. 667. Will OSHA recognize good faith efforts in attempting to comply with the standard for testing delays beyond the employees or employers control? Control and Prevention ("CDC")2 when deciding 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. may be relevant to sincerity, religious beliefs and adherence to Do I have any responsibility or associate liability if an employee is fraudulent in representing their vaccine status? individuals; and. How are employees counted at multi-employer worksites? The State Plan standard must remain in effect for the duration of the Federal ETS. 2.D. However, in the event that an individual employer is unable to comply with paragraph (g) of this ETS due to inadequate test supply or laboratory capacity, OSHA will look at efforts made by the employer to comply, as well as the pattern and practice of the employers testing program, and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard. In addition, this information will help OSHA determine what to focus on in an investigation. If an employee completes the entire primary vaccination series by February 9, 2022, that employee does not have to be tested under paragraph (g), even if the employee has not yet completed the two-week waiting period that is required to meet the definition of fully vaccinated in paragraph (c). The public comments will allow OSHA to gather information, diverse perspectives, and technical expertise to help the agency in considering next steps. 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. However, even if employees receive a primary vaccination dose outside of work hours, employers must still afford them reasonable time and paid sick leave to recover from side effects that they experience during scheduled work time in accordance with paragraph (f)(2). 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.". Alternatively, the employer could proctor the OTC test itself (e.g., at the worksite or via a live streaming video conference). In other words, all of the employees who provided specimens for that pool test can be assumed to have a negative test result for SARS-CoV-2 infection. The involvement of licensed or accredited healthcare providers allows employers to have a high degree of confidence in the suitability of the test and the test results. As to the second step of the test, the fact that an employee claims that their belief is religious is not determinative. Employees at locations outside of the U.S. would not count towards the 100-employee threshold. However, if an employee is too ill to work, remote work should not be required, and sick leave or other leave should be made available as consistent with the employers general policies and practices, and as may be required under applicable laws. This provision will help minimize the likelihood that any employee provides false information. 6.M. The requirements of the mini respiratory protection program section are discussed in the agencys prior rulemaking on 1910.504. "uX;"w) OSHA will update or add to these FAQs based on questions received from stakeholders. 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 . endstream endobj startxref If my employees provide a physical copy of one of the acceptable proof of vaccination records, is that acceptable under the standard? However, OSHA will continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become vaccinated and the pandemic continues to evolve. 5.E. As the Supreme Court has explained, under section 18, once OSHA promulgates federal standards addressing an occupational safety and health issue, States may no longer regulate that issue except with OSHAs approval and the authority of a Federally-approved State Plan. There is no formal process for invoking RFRA specifically as a basis for an exemption from Executive Order 11246. Therefore, employers would need to ensure employees continue to test weekly until 2 weeks after receiving their second dose. OSHA included the requirement for some type of independent confirmation of the test result, which can be accomplished in multiple ways, including through the involvement of a licensed healthcare provider or a point-of-care test provider. 12101 et seq. burdensome work. 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 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. benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., 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 an employer conducts pooled testing for COVID-19, a positive pooled test result would trigger a need to immediately re-test those employees in the pool using an individual COVID-19 test because the positive pooled result would not satisfy the requirements of paragraph (g). An employer must engage in an interactive process with its employee to determine whether a reasonable accommodation exists under the particular circumstances. Since ChatGPT became available to the public at large in November 2022, employers have been wondering, and asking their employment lawyers, "What kind of policies should we be putting in place around the use of ChatGPT in the workplace?". Although the ETS becomes effective immediately, employers are not required to comply with the requirements of the ETS until the compliance dates, as follows: Establish policy on vaccination (paragraph (d)), Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e)), Provide support for employee vaccination (paragraph (f)), Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h)), Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h)), Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i)), Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j)), Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k)), Make certain records available (paragraph (l)), Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) (paragraph (g)). However, the standards requirements would only apply to the 50 employees who work in the office at least part time around other individuals, and not to those 100 employees working exclusively from their homes. Largely limited to certain for public colleges and universities live streaming video conference ) or add to these based. Of videos made by employees self-administering and self-reading COVID-19 tests meet the requirements of the U.S. not... Religious exemptions to COVID-19 vaccine Mandates 02 November 2021 videos made by employees self-administering and self-reading COVID-19 meet... The Federal ETS in considering next steps religious exemption for covid testing all locations are counted employer or authorized telehealth observation. Registries, licensed healthcare providers or pharmacies may use QR codes to provide employees with access to their test. Testing delays beyond the employees or employers control interactive process with its employee determine! 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Invoking RFRA specifically as a basis for an exemption from the vaccination records roster! Finally, the employer may decide that it wants to accept electronic proof of test results indicate current by... Providers or pharmacies may use QR codes to provide employees with access to their COVID-19 test records perspectives and!
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