OSHA’S COVID-19 VACCINATION AND TESTING ETS

HIGHLIGHTS AND CONSIDERATIONS OF REQUIREMENTS AND APPLICABILITY TO RELIGIOUS ORGANIZATIONS

By Samantha Burns and Matt Anthony

Current Status of the ETS

The Emergency Temporary Standard (ETS) was published in the Federal Register on November 5, 2021 (effective date). On November 6, 2021, the Fifth Circuit Court issued a Stay Order blocking the enforcement and implementation of the ETS. On December 17, 2021, the Sixth Circuit Court lifted the Stay, meaning that employers will have to comply with the ETS unless the Supreme Court rules otherwise. The Supreme Court has scheduled oral arguments on January 7, 2022. As the High Court will not decide whether to block the directive until after the arguments are heard, the ETS remains in effect at this time. We cannot predict how the Supreme Court will rule on this matter, so employers subject to the OSHA ETS should prepare to comply with the standard.

Update: Following the initial posting of this article, the Supreme Court issued a ruling that effectively blocked OSHA’s COVID-19 Vaccination and Testing ETS. Therefore, employers will not be required to comply with any vaccine or testing requirements set forth in the ETS. Although employers are no longer required to comply with this ETS, we still encourage all employers to continue reading this post for helpful information regarding the general requirements of Religious Organizations to comply with OSHA regulations. Also, for any employers who are still interested in developing a vaccine or testing policy, this post includes links to some Policy Templates that may be used as a starting point for drafting such a policy.

Current Deadlines for Employer Compliance 

Per OSHA, employers currently have until January 10 to develop compliance policies and until February 9 to begin complying with the standard’s testing requirements. While employers should prepare to meet these current deadlines, with litigation still pending, it is possible that the compliance dates of the ETS could change. Therefore, employers are encouraged to visit OSHA’s COVID-19 Vaccination and Testing ETS webpage for additional updates.

COVERAGE OF EMPLOYERS UNDER OSHA

General Applicability
OSHA has two regulatory functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces.  Employers must become familiar with the standards applicable to their workplaces and eliminate hazards. In general, the Occupational Safety and Health Act of 1970 (“Act”) covers all employers and their employees in all fifty states.  Any employer who employs one or more employees is considered an “employer engaged in a business affecting commerce who has employees” and is thus covered under the Act. See 29 C.F.R. #1975.4(a).

Applicability to Churches and Religious Organizations
Churches are not exempt from OSHA regulations. Churches or religious organizations are considered employers under the Act where they employ one of more persons in secular activities. While churches are not specifically exempted under the Act, OSHA regulations treat churches as a special case. In dealing with Religious Organizations as Employers, OSHA distinguishes between religious activities and secular activities when determining whether to enforce requirements.

As a matter of Enforcement, OSHA will not regard “the performance of, or participation in, religious services” as employment under the Act. Persons regarded as non-employees under the Act will not be covered by OSHA. Although purely religious activities do not fall within the scope of the Act, if a Church ventures beyond purely spiritual pursuits, it will be subject to OSHA requirements when persons are regarded as employees under the Act and are thus covered by OSHA. The regulations provide some clear examples of coverage and noncoverage of religious organizations as employers:

Cases of Noncoverage:

• Clergy members performing or participating in religious services; and 
• Other participants in religious services such as choirmasters, organists, other musicians, choir members, and ushers. See 29 C.F.R. #1975.4(c)
  • Example: If a Church choir is exposed to a hazardous environment during a Sunday Church Service, the people who participate in the choir will not be covered by OSHA, so the church would not have to worry about receiving an OSHA citation.

Cases of Coverage:

• Administrative, executive, and other office personnel employed by religious organizations 
• Individuals employed by private institutions that are owned or operated by a religious organization (hospitals, schools, shelters, etc.); and
• Individuals employed by commercial establishments of religious organizations involved with production or sale of products (manufacturing or selling goods and/or services). See 29 C.F.R. #1975.4(c)
  • Example: If your church maintains a coffee shop, people who work in the coffee shop will be covered by OSHA and church will be subject to OSHA requirements.

VOLUNTARY COMPLIANCE WITH OSHA GUIDELINES

General Compliance with OSHA Standards
While there are distinctions within a religious organization as to who is covered by OSHA and who is not, a church should always follow the basic principle of maintaining a safe and hazard free working environment.  It is important that all churches review OSHA guidelines and voluntarily comply with them. 

Compliance with OSHA’s COVID-19 Vaccination and Testing; Emergency Temporary Standard
The COVID-19 Vaccination and Testing ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace. It is important that all churches review OSHA guidelines for and make a good faith effort to comply with them. The Church can begin by visiting the various links provided by OSHA below:

• COVID-19 Vaccination and Testing; Emergency Temporary Standard – Final Rule Published 11/05/21
• ETS – Summary
• ETS – Fact Sheet
• ETS – Frequently Asked Questions (FAQ)

EMPLOYERS THAT ARE COVERED BY ETS
The requirements set forth by the ETS are limited to employers with 100 or more employees at any time this ETS is in effect. All individuals who are “employees” under OSHA are counted in the total number when determining whether an employer meets the Minimum “100 or More Employees” Requirement for the ETS.

Related Organizations
Two or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company (i.e., any subsidiary organizations of a Church will be integrated under the “umbrella” of the Church). Example: If your church maintains a coffee shop, retail store, and factory, the Church will be considered an integrated single employer for all employees working in each of these entities. As the Single Employer – Church will be required to include all employees working in the church, coffee shop, retail store, and the factory in its count for number of employees.

Applicability of ETS on Employers with Fluctuating Number of Employees
If the Employer had 100 or more employees on November 5, 2021, the ETS will apply to Employer (even if number of employees has since decreased). If the Employer has had fewer than 100 employees but subsequently hires more workers and hits the 100-employee threshold, the Employer would then be expected to come into compliance with the ETS.

Determining Whether an Individual is a Covered Employee for the ETS
Employers must include all employees across all their U.S. workplaces, regardless of vaccination status or where they perform their work. In other words, all employees—regardless of whether they work In-Office, Off-Site, At-Home, Outdoors, etc.—shall be included in Employer’s count.

Individuals NOT Covered Under ETS: 

• The following individuals are not considered to be employees under OSHA and are thus not counted:
  • Temporary Employees Supplied by a Staffing Agency;
  • Independent Contractors; and
  • Volunteers. See 66 FR 5916, 6038

Individuals Covered Under ETS: 

• The following individuals are covered under OSHA and are thus counted towards the Employer’s total number of employees for the ETS:
  • Full Time Employees; 
  • Part Time Employees; 
  • Seasonal Employees; and 
  • Temporary Employees

Examples for Counting Employees and Determining whether Employer meets the 100-Employee Threshold of ETS:

• OSHA has provided several examples of how to count the number of employees under Paragraph (b) of the Final Rule. 
• For quick access to these examples, please visit OSHA’s FAQ webpage: ETS – Frequently Asked Questions (FAQ) 
  • See # 2 – Paragraph (b) – Scope and Application.

BASIC REQUIREMENTS OF EMPLOYERS UNDER ETS

The ETS requires employers to (1) develop, implement, and enforce a mandatory covid-19 protection policy; (2) determine and maintain records of each employee’s vaccination status; (3) support vaccination by providing certain accommodations to employees; and (4) keep OSHA informed of certain occurrences.

(1) Employer Policy on Vaccination

While OSHA strongly encourages all employers to implement a mandatory vaccination policy, the Agency is currently providing Employers with an alternative policy option. The ETS currently requires Employers to adopt one of two (2) written policy options: (1) Mandatory Vaccination Policy, or (2) Vaccination with Alternative Testing and Face Covering Policy.

Mandatory Vaccination Policy (Option #1)

• A Mandatory Vaccination Policy would require vaccination of all current and future employees, other than those employees who fall into one of three exempted categories:

1. Vaccine is medically contraindicated,
2. Medical necessity requires a delay in vaccination, or
3. Individual is 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

• Example: Mandatory Vaccination Policy – if you are interested in implementing this policy option, please review this OSHA-Provided Template: 

Mandatory Vaccine Policy – TEMPLATE (provided by OSHA)

Vaccination with Alternative Testing and Face Covering Policy (Option #2)

• If employers prefer to avoid mandating vaccines, employer must establish and enforce a written policy allowing any employee the choice to either: 

1. Be fully vaccinated against COVID-19; or
2. Provide proof of regular testing for COVID-19 and wear a face covering 

• Example: Vaccination with Alternative Testing and Face Covering Policy – if you are interested in implementing this policy option, please review this OSHA-Provided Template: 

Vaccination with Testing & Facemask Alternative Policy – TEMPLATE (provided by OSHA)

Developing Relevant Procedures for Two Sets of Employees Under Both Policy Options 

• Under federal law, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, workers may be entitled to a reasonable accommodation from their employer, unless it would pose an undue hardship on employer. If the worker requesting a reasonable accommodation is unable to be vaccinated and/or wear a face covering and/or undergo testing due to a worker’s disability and/or a conflict with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. 
  • Example: providing employee with the ability to work exclusively from home (remotely).
• Due to the various exemptions that apply to each of the above-mentioned policies, it is extremely likely that an employer will have both vaccinated and unvaccinated employees. OSHA intends that such employers will develop one written plan that includes different policies and procedures for two sets of employees: (1) vaccinated, and (2) unvaccinated.
  • The written plan should explain the testing and masking requirements for unvaccinated employees, and how the employer will implement and enforce those policies. The ETS requires employers to ensure that each “not fully vaccinated” employee is tested at least weekly (if in workplace at least once per week) or within seven (7) days before returning to work (if away from the workplace for a week or longer). For employees who work remotely, exclusively outdoors, etc., testing will not be required (for so long as they stay away from the workplace) (e.g., if remote employee plans to return to workplace for any reason, no matter how short the visit, employee must be tested within 7 days prior to visit).
    • As testing requirements will differ for employees who regularly report to a workplace compared to those who do not, the policy may describe different testing procedures for those different groups of employees, depending on how often they physically report to a workplace.

Additional Information Regarding Policy and Procedure Requirements

• For additional information please visit OSHA’s FAQ webpage: 

ETS – Frequently Asked Questions (FAQ) 

• See Section(s):
  • # 3 – Paragraph (d) – Employer Policy on Vaccination
  • # 6 – Paragraph (g) – COVID-19 Testing for Employees Who are Not Fully Vaccinated
  • # 8 – Paragraph (i) – Face Coverings
  • # 9 – Paragraph (j) – Information Provided to Employees
  • # 11- Paragraph (l) – Availability of Records

(2) Determine and Maintain Records of Each Employee’s Vaccination Status

Employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated. If no proof of vaccination is provided, employer must treat such employees as unvaccinated. 

Determining Vaccination Status of Employees

• Acceptable proof of vaccination status includes: 
  • Record of Immunization from health care provider or pharmacy;
  • Copy of the COVID-19 Vaccination Record Card;
  • Copy of Medical Records documenting the Vaccination;
  • Copy of Immunization Records from public health, state, or tribal immunization system; or
  • Copy of other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) administering the vaccines
• If an employee is unable to provide proof of vaccination, a signed and dated statement by the employee will be acceptable. The employees statement must:
  • Attest to their vaccination status (fully vaccinated or partially vaccinated); 
  • Attest that they have lost or are otherwise unable to produce proof required by the standard; 
  • Include the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties”; 
  • Name the type of vaccine administered; 
  • List the date(s) of administration (as best they can remember); and 
  • Provide the names of the health care professional(s) or clinic site(s) that administered the vaccine(s).

Maintaining Records of Vaccinations

• For All Employees – the ETS requires employers to maintain a record and a roster of each employee’s vaccination status. The roster must list all employees and clearly indicate for each one whether they are:
  • Fully Vaccinated;
  • Partially Vaccinated;
  • Not fully vaccinated because of a medical or religious accommodation; or
  • Not fully vaccinated because they have not provided acceptable proof of their vaccination status
• For Unvaccinated Employees – the ETS requires that employers maintain a record of each test result provided by each employee. These records must be maintained as confidential medical records and must not be disclosed except as required or authorized by the ETS or other federal law.

Additional Information Regarding Vaccination Determination and Record Maintenance

• For additional information please visit OSHA’s FAQ webpage: 

ETS – Frequently Asked Questions (FAQ) 

• See Section(s):
  • # 4 – Paragraph (e) – Determination of Employee Vaccination Status
  • # 7 – Paragraph (h) – Employee Notification to Employer of a Positive COVID-19 Test
  • # 11 – Paragraph (l) – Availability of Records

(3) Support Vaccination by Providing Certain Accommodations to Employees

Employers must support vaccination by providing employees with reasonable time, including up to four (4) hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.

Additional Information Regarding Vaccination Support

• Please visit OSHA’s FAQ webpage: 
  • ETS – Frequently Asked Questions (FAQ) 
• See # 5 – Paragraph (f) – Employer Support for Employee Vaccination

(4) Keep OSHA Informed of Certain Occurrences 

Employers are required to report work-related COVID-19 fatalities to OSHA within eight (8) hours of learning about them, and to report work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about hospitalization. 

How to Report

• Employers have three options for reporting work-related fatalities and in-patient hospitalizations to OSHA:

1. By telephone to the OSHA Area Office that is nearest to the site of the incident; 
2. By telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742); 
3. By electronic submission using the reporting application located on OSHA’s public website at www.osha.gov.

• For additional information regarding reporting requirements for hospitalization and fatalities, please visit the OSHA-Provided links below: 
  • Fact Sheet: Reporting Work-Related COVID-19 Hospitalizations and Fatalities to OSHA
  • ETS – Frequently Asked Questions (FAQ) 
• See # 10 – Paragraph (k) – Reporting COVID-19 Fatalities and Hospitalizations to OSHA

OTHER CONSIDERATIONS

Impact on State and Local Laws
The ETS will supersede any State and Local laws regarding the adoption and enforcement of any workplace requirements relating to these issues, except under the authority of a Federally approved state plan. In particular, OSHA intends to preempt (block) any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

Governor Abbott’s Current Executive Order

• Policy Option # 1 (Mandatory Vaccine): Governor Abbott’s Executive order issued on 10-11-21 (Executive Order GA 40) does not actually prohibit vaccine mandates. However, while legislative action is pending, GA 40 temporarily orders the following: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” This language doesn’t prevent an employer from having a vaccine requirement. It merely requires employers to honor an employee’s request for exemption due to medical reasons or religious beliefs. Additionally, it effectively provides: (1) An automatic “medical” exemption to anyone who has previously tested positive for COVID-19, and (2) Prevents an employer from requesting additional supporting information if employer questions the sincerity of a religious belief.
  • Just as with any other request for accommodation based on a medical need or a religious belief, Employer would be justified in requesting that individual submit documentation verifying the individual’s claims.
  • The ETS will supersede Abbott’s Executive Order, so if Church wants to implement the Mandatory Policy (option #1), it can do so without consideration of Abbott’s order or it can take steps to provide accommodations for the additional exemption items provided in Abbott’s order.
• Policy Option # 2 (Vaccination with Test & Mask Alternative): Governor Abbott’s Executive order specifically addresses vaccine mandates and since this policy option includes an alternative to requiring the vaccine, Abbott’s order does not apply to this policy. 
• All employers are legally required to provide a safe and healthy work environment for their employees. Abbott’s order does not address an employer’s discretion to implement qualification standards that require employees not to pose a threat to the health and safety of other individuals in the workplace and it certainly does not restrict an employer’s current discretion in setting those standards. Therefore, an employer can certainly require COVID-19 vaccines. However, when an employee claims a medical or religious exemption to vaccination, Employer must engage in an interactive discussion to determine whether a reasonable accommodation can be made without imposing an undue hardship on the organization (see Tex. Labor Code #21.105 & 21.108 attached).

Future Executive Orders by Governor Abbott

• As previously mentioned, if allowed to remain in effect following Supreme Court Hearing, the ETS will preempt (block) any State and Local laws. Therefore, if Abbott issues any subsequent orders related to the adoption and enforcement of any workplace health and safety requirements, it will not prevail. 

Pending Litigation
As previously mentioned, we cannot predict how the Supreme Court will rule on this matter, or how quickly they will rule on this matter following the January 7th Hearing, so the Church should prepare to comply with the standard as soon as January 10, 2021. While Church should prepare to meet current deadlines, with litigation pending, it is possible that the ETS will be overturned, or that specific requirements (including compliance dates) could be changed. Therefore, the Church is encouraged to regularly visit OSHA’s COVID-19 Vaccination and Testing ETS webpage for additional updates following the Supreme Court Hearing.

WHAT SHOULD CHURCHES BE DOING NOW?

Churches should prepare to meet compliance deadlines for ETS requirements by taking the following steps:

1. Review the OSHA-Provided Policy Templates mentioned above and determine which policy works best for your organization.
2. Mandatory Vaccine Policy – TEMPLATE (provided by OSHA)
3. Vaccination with Testing & Facemask Alternative Policy – TEMPLATE (provided by OSHA)
4. Depending on Leaderships decision, Churches should begin developing and drafting the policies required under the ETS and make sure that the policies are adapted to the Church’s unique workplace(s). While you don’t need to implement these policies by January 10, the Church should be ready to implement them as soon as possible and be prepared to show good faith efforts towards putting them in place.
5. Develop programs that would allow you to conduct compliance training for your management team and deliver information about your policies to your employees as required under the ETS. Conducting this training and promoting information will help demonstrate the Church’s good faith efforts.
6. If a Church decides to provide the Testing Option, then it should also focus on drafting its testing requirements to suit its workplace needs and work on developing its plan to implement those testing requirements by February 9.
7. Finally, get to work on collecting vaccination data. As Churches will be required to maintain a detailed roster of all employees, along with their specific vaccination status, if a Church hasn’t already requested this information from its employees, this would be a good time to send out requests for required information.
8. This could be accomplished by emailing a questionnaire to employees with the initial information needed for the roster. This form can also offer instructions for providing the Church with proof of vaccination and/or documentation required for any claimed exemptions.

If your Church needs assistance in developing, documenting or implementing any of the policies or considerations set forth in this article, the church lawyers who comprise our Church Law Group stand ready to assist you or your organization to ensure compliance with OSHA’s requirements or to provide sound legal advice regarding applicability of these requirements or any related matters.