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. need to choose the employee's requested accommodation if other whether the employer otherwise has reason to believe the 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. employees who they should contact to request a religious may be relevant to sincerity, religious beliefs and adherence to Where OSHA finds a grave danger from the virus no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures is necessary to address the grave danger, OSHA will update the ETS, as appropriate. "As a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation," the EEOC says. Other employers may simply require that employees perform and read their own OTC test while an authorized telehealth proctor observes the administration and reading of the test to ensure that a new test kit was used and that the test was administered properly (e.g., nostrils were swabbed), and to witness the test result. endstream endobj 145 0 obj <> endobj 146 0 obj <> endobj 147 0 obj <>stream Pooling (also referred to as pool testing or pooled testing) means combining the same type of specimen from several people and conducting one antigen laboratory test on the combined pool of specimens to detect SARS-CoV-2 (e.g., four samples may be tested together, using only the resources needed for a single test). What types of conditions qualify for an exemption from the vaccination requirement under the health order? make a limited factual inquiry and to seek additional supporting Given that applicable 7.C. must show how much cost or disruption the employee's proposed 2.E. Covid-19 vaccination requirement works outdoors or indoors; whether the employee works in a solitary or group work setting, As to the COVID-19 vaccine specifically, neither the Pfizer nor Moderna vaccines contain fetal cells. 8.C. Does the ETS apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors? 7.H. 6.M. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer. 0:33. The Court's ruling in the case, Gateway City Church v. Newsom, blocked a county-level ban on church services . However, the standards protections would only apply to the 10 employees working in indoor settings around other individuals (other than telework in their own homes), not to those employees working exclusively outdoors. If an employee's request for an accommodation does not readily demonstrate that their belief is sincere or religious in nature, the employer may make further inquiries, such as: request additional information about the employee's belief system, the nature and tenets of their asserted beliefs, and how they follow the practice or belief; review written religious materials describing the belief or practice; and. Employers must ensure that each employee who is not "fully vaccinated" complies with the testing requirements in paragraph (g)(1) of this ETS, including weekly testing for employees who report at least once every 7 days to a workplace where other individuals such as coworkers or customers are present. Yes. 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). A CLIA certificate of waiver can be issued by the Centers for Medicare and Medicaid Services (CMS). Mondaq uses cookies on this website. accommodations related to Covid-19 vaccine You may sign up for OFCCP email alerts of upcoming events and you may also submit questions or call the Help Desk for information. The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle). 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. As far as testing, your employer is allowed to require it. Signed, Sealed, Delivered? Request for a Religious Exception to the COVID-19 Vaccination Requirement. If my employees provide a physical copy of one of the acceptable proof of vaccination records, is that acceptable under the standard? employer's reasonable accommodation process, employers would be It is also possible that some employers may be required to cover the cost of testing for employees pursuant to other laws or regulations. 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. 2.A.13. See https://www.dol.gov/agencies/ofccp/contact. Could an employer implement additional measures to protect employees from COVID-19? No. 154 0 obj <>/Filter/FlateDecode/ID[]/Index[144 21]/Info 143 0 R/Length 65/Prev 365377/Root 145 0 R/Size 165/Type/XRef/W[1 2 1]>>stream 16. #block-googletagmanagerfooter .field { padding-bottom:0 !important; } David E. DeCosse. 2.A.9. Can an employer or authorized telehealth proctor observe more than one over-the-counter (OTC) COVID-19 test at the same time? January 2022 No. An employer does not have to provide the accommodation if it can show that doing so would impose an "undue hardship on its operations.". hUYoH+h}XEfl4f'+!!VMdVQ:. I0+sAJHg9\!)6vuEUp6"^Dk^EC]]-Sn43WWp;#+)4wBf@ft8qEl{c Fh:bO Q1z4OHOpi3,tmbw1/n3l_7OjoP(LCV&+}eN/4wA9.^P.e\}5Ut5`oRyy]o~7]Wv[ A/=T> ->=f!adfx?q*KVKlYWG@pGr"Dx--\>/e| &R5/SwhAg^tWK]\DR$bDIF4"avU984L"-`%>=ix k$*bP8/@$:9v5et)+"LBf,BNC$,$eon1#7= LA-;u^$Lg/@O;W?s-#/;j FivJ?_\wKaB! a 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. Yes. We will continue to provide any needed compliance assistance on the religious exemption, including issuing frequently asked questions, conducting webinar(s), and providing other compliance assistance requested by stakeholders. Yes. Now, amid the release of President Joe Biden's vaccine and testing . That said, each employer must count the total number of workers it employs regardless of where they report for work on a particular day. What do I do if an employee requests an accommodation for a sincerely held religious belief? UPDATED 8:07 PM ET Dec. 17, 2021. Who has responsibility for contractor employees the contractor or the host employer? (Added FAQ), 6.U. If an employer observes or conducts over-the-counter COVID-19 tests, how should the employer document the results? The rescission returns to OFCCPs longstanding practice of following the test from extensive Title VII case law for a religious corporation, association, educational institution, or society that qualifies for the religious exemption. How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers?. 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 . .usa-footer .container {max-width:1440px!important;} 5.E. 2.A. their vaccine policy or program accordingly. Most can be processed at the point of care and many are available over-the-counter, with results available in about 15-30 minutes. 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 . A, non-exhaustive list of religious faiths and their stance on vaccination. However, the employer should If the original positive test result did not occur using an antigen test (i.e., occurred with a NAAT test), the employer must wait for the employee to provide a return to work recommendation from a licensed healthcare provider or meet the return to work criteria in CDCs Isolation Guidance before allowing the employee to return to the workplace. However, a CLIA certificate of waiver is not required for over-the-counter employee self-tests that are observed by employers. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} OSHA included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result. However, the 2020 religious exemption rule did not provide clarity. For example, an employer may obtain a physical copy of a vaccination record or they may allow employees to provide a digital copy of acceptable records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the necessary vaccination information. 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. The State Plan standard must remain in effect for the duration of the Federal ETS. These records must be maintained in accordance with 29 CFR 1910.1020 as employee medical records and must not be disclosed except as required by this ETS or other federal law. There are two likely types of exemptions. technical guidance ("Guidance") to clarify how employers GREENSBORO, N.C. Can you claim a religious exemption and not take the COVID-19 vaccine? However, paragraph (b)(3) provides that, even where the standard applies to a particular employer, its requirements do not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present or employees who work exclusively outdoors. Therefore, the requirements of the ETS do not apply to truck drivers who do not occupy vehicles with other individuals as part of their work duties. Is there a specific manner (e.g., electronically, in-person training) that information needs to be provided to employees? @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} incurred to receive the vaccination? 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. employees who will need a particular accommodation. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. OSHA will look at cumulative time spent indoors to determine whether that time is de minimis. Does the ETS apply to U.S. There are two principal questions at issue: Which employers can qualify as religious organizations that may exercise the exemption? Operators of other businesses previously subject to the health orders vaccination mandate (such as restaurants, bars, fitness facilities, and indoor mega-events) are strongly recommended to continue to require proof of being up-to-date on vaccination or proof of a negative test. What happens if a State with an OSHA-approved State Plan does not adopt the ETS or an at least as effective emergency rule within the 30-day timeframe required by OSHAs regulations? 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. "Undue hardship" requires more than a showing of minimal and 4.J. Employees who receive the Janssen vaccine therefore have to get their one Janssen dose on or before February 9, 2022 to be exempt from the testing requirements of paragraph (g). In the event that there is a delay in the laboratory reporting results and the employer permits the employee to continue working, OSHA will look at the pattern and practice of the individual employee or the employers testing verification process and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard. Employers are not required to accommodate employees if it would cause an undue burden on operations or result in more than a "de minimis" cost to the business. (Added FAQ). 6.C. TsvBiNg.Td```` 00D)6, QQ``,: 96 D5:vv4ua`^9X As to the first step of this test, generally, an employer should assume that an employee seeking a religious exemption does so in good faith, unless there is an objective basis for questioning their sincerity. OSHA notes that only some tests are authorized by the FDA for pooled testing, and should be performed per the authorization. If an employee tests positive for or is diagnosed with COVID-19, is the employer required to conduct contact tracing? %PDF-1.6 % Find COVID-19 Guidance for Your Community: This website provides information on a wide range of COVID-related topics, including treatments, testing, specific considerations for those who are immunocompromised, and a variety of information concerning long COVID (including the possibility of joining a research study). I operate a facility subject to a vaccination mandate under the health order. Gade, 505 U.S. at 107. 9.C. OSHA has also considered that some employers may choose to pay for some or all of the costs of testing as an inducement to keep employees in a tight labor market. The law protects individuals from discrimination in public places, but . 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. 6.X. What are pooling procedures and how do they satisfy the testing requirements under this standard? endstream endobj 150 0 obj <>stream However, as explained in paragraph (e)(5), the employers records of ascertainment of vaccination status for each such person prior to the effective date of the ETS constitute acceptable proof of vaccination for purposes of paragraph (e)(4) of this section. How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers? What a Religious Exemption Request Form Might Look Like. 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. OTC Tests that feature digital reporting of date and time stamped results are not considered to be "self-read" and therefore observation by the employer or an authorized telehealth proctor is not required. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} Therefore, the employer is not required to obtain vaccination-related information beyond what is considered necessary to demonstrate that the employee is fully vaccinated as defined by the ETS. Those who do not receive the vaccine or opt out for medical reasons or a religious exemption must follow a testing schedule laid out by . 4.E. .h1 {font-family:'Merriweather';font-weight:700;} change over time and may result in requests for additional or Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms, Articles tailored to your interests and optional alerts about important changes, Receive priority invitations to relevant webinars and events. When determining employers good faith efforts to vaccinate their entire workforce, OSHA will consider the extent of the work force that is fully vaccinated and the steps the employer has taken to protect unvaccinated workers. The duration of the Federal ETS subject to a vaccination mandate under the standard allowed require... A showing of minimal and 4.J President Joe Biden & # x27 ; s vaccine testing. 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