(3) 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.
Verification & Recordkeeping
The ETS requires covered employers to determine the vaccination status of all employees by December 5, 2021. Vaccinated employees can submit a health care provider, pharmacy, or other medical immunization record, a copy of the COVID-19 Vaccination Record Card (white card), records from a public health information system, or any other official documentation. If such documentation cannot be produced, an employee may submit a signed, dated, sworn attestation, acknowledging that knowingly providing false information may subject the signatory to criminal penalties.[8] Employers that have already collected vaccination data from their workforce prior to the ETS effective date of November 5, 2021, will not have to re-do or revisit their employees and request additional data. Employers should keep vaccination records in a confidential medical record, separate from regular personnel files. Employers must maintain a roster of employees’ vaccination status, which must be treated as employee medical records, except that they are not subject to usual retention rules and need be maintained only for the duration of the ETS’ effect. Employers must also maintain a record of each COVID-19 test result required to be provided by each employee pursuant to this ETS or obtained during tests conducted by the employer.
Promoting Worker Vaccination
Employers are required to support vaccination, by providing the following by December 5, 2021:
• Paid Time (up to 4 hours) for employees to receive a vaccine against COVID-19. If an onsite vaccination clinic is available, then participation in such a clinic should be “on the clock,” consistent with applicable wage and hour laws.
• Paid Sick Leave in a reasonable amount, for employees to recover from any side effects associated with the COVID-19 vaccines. Employers may require employees to use accrued Paid Time Off. However, if an employee has no time accrued, employers must provide extra paid leave. In addition, employers are permitted to set a cap on the amount of time provided to employees for recovery.
Requirements for Unvaccinated Workers
Testing
The ETS requires employers to ensure that employees who are not fully vaccinated, and who report to a workplace where others are present (whether coworkers or customers), comply with certain rules starting on January 4, 2022:
• Be tested for COVID-19 at least once every seven days; and
• Submit documentation of their most recent test result at least every seven days.
The regular testing requirement does not apply to workers who do not report to a worksite at least once a week, but, prior to appearing at the workplace, such unvaccinated employees must also test and provide test results that were obtained no earlier than 7 days prior. The testing requirement is waived for individuals who had a diagnosed case of COVID-19 within the prior 90 days. Testing is required for all unvaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing conflicts with a worker’s sincerely held religious belief, practice, or observance, the worker may be entitled to a reasonable accommodation. [Meaning KIKES will be exempt]
Administering a Testing Policy
Employees who fail to provide a test result may not be permitted to remain at a workplace. Consequently, an employer policy should anticipate consequences for employees who fail to comply with the testing requirements, especially in the event of repeated failure to produce test results as required. Employers are required to maintain a record of each test result, and store such records as a confidential medical record, subject to the same retention requirements as vaccination records. [continued]