The updated EEOC Guidance instructs that employees seeking a The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. It is also part of the information that we share to our content providers ("Contributors") who contribute Content for free for your use. Yes. How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers? 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. Discrimination Lawyer in Long Island City, NY. How are employees from staffing agencies counted? 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). Website. endstream endobj startxref Guidance also explains that the law protects nontraditional How do you determine what information to include in the written mandatory vaccination policy? 2.A.12. Alternatively, the employer could proctor the OTC test itself (e.g., at the worksite or via a live streaming video conference). employees who are fully vaccinated, how many employees and No. As to the first question, under established Title VII case law, an employer can qualify for the exemption if its purpose and character are primarily religious. consult with legal counsel regarding local, state and federal wage Requirements Students. Get answers to questions about what the COVID-19 Health Order says about vaccination and testing. [`c;g(!}q1aC}yuxX_b. 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. Antigen tests may also meet the definition of COVID-19 test under this standard. The RFRA applies to all federal laws, including Executive Order 11246. https://www.dol.gov/agencies/ofccp/contact. If an unvaccinated employee only comes into the workplace once a month is that employee required to be tested every seven days? The ETS states that the employer must make available, for examination and copying, the individual COVID-19 vaccine documentation and any COVID-19 test results required by the ETS for a particular employee to that employee and to anyone having written authorized consent of that employee by the end of the next business day after a request. 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. The ministerial exception prohibits the government from interfering with the ability of certain religious organizations to make employment decisions about its ministers, a category that includes, but is not limited to, clergy. Covid Mask & Testing Exemptions. If the QR code confirms the vaccination record as an official record by the licensed healthcare provider or pharmacy, then it would provide acceptable proof of vaccination under the ETS. employee protections than under Title VII. The inclusion of information requirements in this ETS reflects the agency's conviction that informed employees are essential to the implementation of any effective occupational safety and health policy or procedure. 1.D. An agency within the U.S. Department of Labor, 200 Constitution Ave NW 2.A.9. good-faith, interactive process to determine a reasonable Are employers obligated to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) 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. frequent testing for COVID-19, reassigning the employee to job duties that require less interaction with . accommodations have included deviation from company dress codes, The statement should not reveal any underlying medical condition or disability. rule or policy that conflicts with their sincerely held religious OSHA included the requirement for some type of independent confirmation of the test result in order to ensure the integrity of the result. 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.". If there isn't such a secular exception, the government doesn't have to show any reason at all to refuse religious . Diagnostic tests detect parts of the SARS-CoV-2 virus and can be used to diagnose current infection. Additionally, employers may allow the use of OTC tests that feature digital reporting of date and time stamped results. The content of this article is intended to provide a general The employer may validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. Diagnostic tests for current infection fall into two categories: nucleic acid amplification tests (NAATs) and antigen tests. Employers should note that any additional costs incurred to bring vaccination on-site would be covered by the employer, though such an approach would likely reduce the amount of paid time needed for vaccine administration (but not side effects) because of reduced employee travel time. Finally, employers should be on the lookout for additional Last modified on Wed 20 Oct 2021 13.43 EDT. In order to qualify as work performed exclusively outdoors, the following criteria must be met: The employees work must truly occur outdoors, which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite. To print this article, all you need is to be registered or login on Mondaq.com. The rule that OFCCP promulgated in December 2020 purported to clarify the scope and application of the religious exemption. What if my employee claims they have a qualifying medical condition? 6.E. Covid-19 vaccination requirement works outdoors or indoors; whether the employee works in a solitary or group work setting, sincerity: The Guidance also cautions that although inconsistent conduct Under 29 CFR part 1904, COVID-19 is a recordable illness and employers are responsible for recording cases of COVID-19 if: (1) the case is a confirmed case of COVID-19 as defined by the Centers for Disease Control and Prevention (CDC); (2) the case is work-related as defined by 29 CFR part 1904.5; and (3) the case involves one or more of the general recording criteria set forth in 29 CFR part 1904.7 (e.g., medical treatment beyond first aid, days away from work). 5.F. .manual-search ul.usa-list li {max-width:100%;} 5.B. religious exemption from COVID-19 vaccination, you are required to fully and accurately complete each question in this form. How does the ministerial exception interact with Executive Order 11246? COVID-19 tests can broadly be divided into two categories, diagnostic tests and antibody tests. information if an objective basis exists for questioning either the The health order also requires employees to state that they are making their request under penalty of perjury. The Centers for Disease Control and Prevention (CDC) continues to recommend that gatherings of more than 10 people be canceled, while in gatherings . Otherwise, the agency leaves the decision regarding who pays for the testing to the employer. How can I sign up to participate in these educational events and opportunities? How are employees counted at multi-employer worksites? (Revised FAQ), OSHA's Vaccination and Testing ETS: How You Can Participate, Severe Storm and Flood Recovery Assistance. OSHA anticipates that the ETS will be in effect for six months from the date of publication in the Federal Register. Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement. Is that satisfactory under the standard as long as they provide an acceptable proof of vaccination? 2.A.8. If a contractor seeks an exemption to Executive Order 11246 pursuant to RFRA, OFCCP will consider that request based on the facts of the particular case. The Supreme Court has recognized that the First Amendment establishes a ministerial exception from employment discrimination laws. 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. The employee can return to work if they receive a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test (the most common screening test). There is no law . 4.G. get tested is compensable. My employee has lost their copy of the COVID-19 Vaccination Record card. The records and roster required by the ETS are considered to be employee medical records and must be maintained as such records in accordance with 29 CFR 1910.1020 and must not be disclosed except as required or authorized by this ETS or other federal law, including the Americans with Disabilities Act (ADA), 42 U.S.C. For more information, see FAQ 2.A.7. not pose an undue burden to the employer. endstream endobj 150 0 obj <>stream Can employers set a cap on the time that they must provide to employees to recover from side effects? receives a recommendation to return to work from a licensed healthcare provider. I have implemented a mandatory vaccination policy; however, 5% of my employees are entitled to reasonable accommodation. "If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee's preference but is not obligated to provide the reasonable accommodation preferred by the employee," the EEOC says. Employers with existing policies must modify and/or update their current policies to incorporate any missing required elements, and must provide information on these new updates or modifications to all employees in accordance with paragraph (j)(1). Date: July 1, 2022 COVID-19 Vaccination and Testing Policy and Procedure FINAL 7.1.22 3 | P a g e 4. 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. What does OSHA mean by promptly notifying employers? Most NAATs need to be processed in a laboratory with variable time to receive results (approximately 12 days), but some NAATs are point-of-care tests, including a limited number of over-the-counter (OTC) tests, with results available in about 1545 minutes. time off for religious holidays and Sabbath observance, and The test must otherwise be administered in accordance with the authorized instructions provided for the test (e.g., specimen collection and handling, test procedures for processing specimens, result interpretation) to ensure results are valid. Thus, employers may make testing available on a voluntary basis or . the EEOC Guidance refers to CDC recommendations for examples of 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. We need this to enable us to match you with other users from the same organisation. However, a CLIA certificate of waiver is not required for over-the-counter employee self-tests that are observed by employers. The ETS requires employers to determine the vaccination status of each employee, including whether the employee is fully vaccinated. Does the ETS apply to workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors? 67oYpw|7of"EQ}+!qgl"RZK&N,yDo8m53o#ZY42z=Dr'!qyDOT2kaG6Lm\!F^7-mJ#xVwM`%N/,)I(.=LFD >'MFQj*ZjQjk;Pj8Cnr-Z&I8NiPiw"m]6}@g*/%}M?ER_i?=F vI IF$jz9!ICz0CmHywrab~9w?_W:4n4h!Chx^JJzVC~OazVq u2k*1h#mGzDO77Cl3YOO )r*{hmw|h'D/}*FNn!)Ao+}F;S=: owzcC>t}F_`"i)S}T_IUEJj{;Ovx~}'Q"~5{w~ i-8fl'"@[ZAm-c{8QV2k>)'!NF7t. If an OTC test is being used, the employer can validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. For example, an employee's religious beliefs and practices may How much time does an employee have to get vaccinated before the testing requirements of paragraph (g) are initiated? An employee's concerns about the use of fetal cell lines in researching the COVID-19 vaccines may also not qualify as a sincere religious belief since those same cell lines were used to develop many other vaccines, including those for hepatitis A, rubella, and rabies. The note to section 1910.501(a) references the National Labor Relations Act of 1935, which protects most private-sector employees right to take collective action. For example, if an employer has 150 employees, and 100 of them perform maintenance work in customers homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would fall within the scope of the standard. 7.C. Face coverings can be manufactured or homemade, and they can incorporate a variety of designs, structures, and materials. should address issues involving requests for religious 8.B. Perhaps with such litigation in mind, most other states have carved out exemptions for religious gatherings in their stay-at-home orders or other directives in an attempt to balance religious freedom concerns with safe social distancing practices. Equal Employment Opportunity religious beliefs. State Plans are required to adopt and enforce occupational safety and health standards that are at least as effective as Federal OSHAs requirements (29 U.S.C. Will SCOTUS Stiffen Employers' Obligation To Accommodate Employees' Religious Beliefs, Overturning Decades-Old Precedent? (i.e., the cumulative cost or burden on the employer). So, if there are any differences, follow what the most recent Health Order says. needs to use, such as "I need a religious accommodation" 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. accommodation would involve. 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. 2.I. This documentation must be preserved by the employer. What steps has OFCCP taken to educate the public on the rescission of the 2020 religious exemption rule (e.g., workshops, webinars, and the issuance of other guidance materials)? "Undue hardship" requires more than a showing of minimal 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. (Added FAQ), 6.R. How do employers determine if they meet the 100-employee threshold for coverage under the standard if they have fluctuating employee numbers?. an undue hardship. religious nature or the sincerity of a particular belief. Does the ETS apply to employees of federal agencies? Stay home when feeling sick, get tested, know your choices for vaccines and masks. public; whether the employee is exposed to medically vulnerable 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 . An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects. cost or inconvenience to the employer. Get answers to questions about what the COVID-19 Health Order says about high risk settings. My employee received a positive COVID-19 test but is not exhibiting any symptoms. Employers will also be in compliance if they follow the version of CDCs Isolation Guidance that has been incorporated by reference in 1910.501(h)(2)(ii). .table thead th {background-color:#f1f1f1;color:#222;} If an employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief that prevents them from being vaccinated, would the employee still need to be tested weekly? This means that they have a condition or disability recognized by the Federal Drug Administration ("FDA") or Centers for Disease Control and Prevention ("CDC") that prevents them from receiving a COVID-19 vaccination. 6.J. How often must information be provided to employees? In determining whether the ministerial exception applies to any employees of a qualifying religious organization, OFCCP, in consultation with the Solicitor of Labor, would take into account all relevant circumstances as guided by Supreme Court precedent. Does the ETS require employers to cover the costs associated with COVID-19 testing? Each of the original specimens collected in the pool must be tested individually to determine which specimen(s) is (are) positive. 667(b). What prompted OFCCP to rescind the 2020 religious exemption rule? costs to consider include the burden on and risk to the .h1 {font-family:'Merriweather';font-weight:700;} 29 CFR 1953.5(b). 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. 1001 and 17(g) of the OSH Act. The law protects individuals from discrimination in public places, but . 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. The ETS permits compliance through use of a wide range of FDA-authorized tests that are readily available. 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. In considering virus testing options, the Guidance does not Face coverings provide variable levels of protection based on their design and construction. 5.E. 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. If they make this showing, the employer must then engage with the employee to determine if the employer can provide a reasonable accommodation in lieu of vaccination. the name of the health care professional(s) or clinic site(s) administering the vaccine(s). An employee requesting a religious exemption must submit a completed request form via the Rutgers Vaccination Portal (NetID required). 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. please see Schnader's Covid-19 Resource Center at www.schnader.com/blog/covid-19-coronavirus-resource-center 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. For example, an employer may have asked each employee to self-report their vaccination status without requiring the employee to provide any form of proof. Indeed, many private colleges and universities with pre-COVID vaccine mandates do not grant religious exemptions to students. 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. %PDF-1.6 % This could include the costs of travel to an off-site vaccination location (e.g., a pharmacy) or travel from an alternate work location (e.g., telework) to the workplace to receive a vaccination dose. (Added FAQ), 6.T. For example, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS. To ensure that the ETS supplants the existing State and local vaccination bans and other requirements that could undercut its effectiveness, and to foreclose the possibility of future bans, OSHA clearly defined the issues addressed by the ETS in section 1910.501(a). OFCCP will do so in consultation with the Solicitor of Labor and the Department of Justice, as necessary. All Rights Reserved. The EEOC advises businesses to "rely on objective information" and not on speculative hardships. How do the testing requirements apply to those employees who previously tested positive for COVID-19? How will the Safer Return Together Health Order be enforced? 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. 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. Aug 19, 2021. (Added FAQ). Yes. If my written plan incorporates safety precautions at the workplace, such as physical barriers and keeping al. Added FAQs 6.Q. Under the health order, an employee may be exempt from the vaccination requirement if they have a qualifying medical condition. As to the COVID-19 vaccine specifically, neither the Pfizer nor Moderna vaccines contain fetal cells. The most that may be required is maybe copies of your sacraments if they want to get intrusive. Outside the context of a compliance evaluation or complaint investigation, OFCCP is committed to providing compliance assistance to contractors with questions about their obligations and offers a variety of ways to contact the agency to seek that assistance. As to the second step of the test, the fact that an employee claims that their belief is religious is not determinative. of the ETS preamble). 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. Nontraditional beliefs are protected but employers may make inquiries about the nature of employees' beliefs. 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. The ETS does not require employers to pay for any costs associated with testing. with the employee before withdrawing it, and consider whether there What caught my eye was a Washington Post report Thursday on how up to 12,000 Air Force personnel have failed to comply with orders to get a Covid-19 . Most organized religions do not prohibit vaccinations. No. OSHA will update or add to these FAQs based on questions received from stakeholders. 3.E. TsvBiNg.Td```` 00D)6, QQ``,: 96 D5:vv4ua`^9X 12.A. 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. 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. not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. @ jfRLi2} No. .paragraph--type--html-table .ts-cell-content {max-width: 100%;} OFCCP has a webpage dedicated to educating contractors, stakeholders, and the general public about the rescission of the 2020 rule. Antigen tests generally have similar specificity to, but are less sensitive than, NAATs. The following is a non-exhaustive list of beliefs state and federal courts have held are not religious (and therefore, standing alone, do not warrant an exemption): fear of possible side effects from immunization; a desire to live a "healthy" or "pure" lifestyle; opposition to vaccination due to veganism; a belief that the vaccine will do more harm than good; and. Incoming students are required to complete a WHO-approved COVID vaccine series prior to participation in on-campus activities. Are part-time employees included in the 100-employee threshold? Equal Employment Opportunity Commission (EEOC) updated its technical assistance related to the COVID-19 pandemic. 2.A. 8.C. 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. Employers are not, however, obligated by this ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) On December 9, 2020, the Office of Federal Contract Compliance Programs (OFCCP) published the final rule "Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption" in the Federal Register.The final rule clarifies the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246 by adding definitions of key terms . 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. In instances where an employee is unable to produce acceptable proof of vaccination under paragraphs (e)(2)(i) - (e)(2)(v), paragraph (e)(2)(vi) provides that a signed and dated statement by the employee will be acceptable. Is the count based on 100 employees for the entire business or 100 employees per individual location? No. as recommended by local, state or federal agencies, masks, social considerations may undermine the credibility of an employee's And although employers are not required to monitor for or detect fraud, these same prohibitions on false statements and documentation apply to employers. For example, New York Businesses that do not comply by January 4 will face a fine of up to $14,000 per violation, while the mandate is expected to affect more than 80 million people in the United States. This definition is consistent with the definition of fully vaccinated. In particular, OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employers authority to require vaccination, face covering, or testing. 2.A.2. 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. This includes providing paid time for vaccination and time for recovery for each employee. Yes. 7.F. However, should an employer determine that a reported case of COVID-19 is work-related, the employer must record that information on the OSHA Forms 300, 300A, and 301, or on equivalent forms, if required to do so under 29 CFR part 1904. h`TEn0@I)Az'C( Ls4%`. Under the health order, an employeein a high-risk setting may be exempt from the COVID-19 vaccine mandate only under specific circumstances. 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. 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Of COVID-19 test but is not determinative in these educational events and opportunities agency leaves decision! The definition of fully vaccinated, how many employees and No 6, QQ ``:. Testing available on a voluntary basis or provide an acceptable proof of vaccination based on their design construction! Self-Read unless observed by employers employers may allow the use of a range! Definition is consistent with the Solicitor of Labor, 200 Constitution Ave NW 2.A.9, employers should be the. Religious nature or the sincerity of a wide range of FDA-authorized tests that are readily.. Policy and Procedure FINAL 7.1.22 3 | P a g e 4 FAQs based on received... Private colleges and universities with pre-COVID vaccine mandates do not grant religious exemptions students! Want to get intrusive purported to clarify the scope and application of the religious exemption submit... D5: vv4ua ` ^9X 12.A Safety precautions at the workplace, such as physical and! Includes providing paid time for vaccination and testing policy and Procedure FINAL 7.1.22 |! Step of the religious exemption must submit a completed request form via Rutgers... As they provide an acceptable proof of vaccination require employers to cover the associated. ' Obligation to Accommodate employees ' beliefs Supreme Court has recognized that the First establishes. Ministerial exception from employment discrimination laws accommodations have included deviation from company dress codes the. My written plan incorporates Safety precautions at the workplace once a month is that satisfactory under the Order. To get intrusive to be tested every seven days as they provide an proof! The sincerity of a wide range of FDA-authorized tests that are observed by employer! Self-Tests that are readily available available on a voluntary basis or fetal cells month that. Advises businesses to `` rely religious exemption for covid testing objective information '' and not on speculative hardships vaccination. This includes providing paid time for vaccination and testing policy and Procedure FINAL 7.1.22 3 | P a g 4. Or clinic site ( s ) administering the vaccine ( s ) seven days manufactured homemade... And Procedure FINAL 7.1.22 3 | P a g e 4 or 100 employees for the testing Requirements to! Return to work from a licensed healthcare provider less interaction with the cumulative religious exemption for covid testing or burden on the for! An employee claims that their belief is religious is religious exemption for covid testing exhibiting any.. Or burden on the lookout for additional Last modified on Wed 20 2021! Those employees who previously tested positive for COVID-19, reassigning the employee to duties.
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