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OSHA ETS Mandating COVID-19 Vaccinations Could Impact Your Business If You Have 100 or More Employees

In early September 2021, President Biden announced he was taking steps to get more Americans vaccinated in an effort to turn the tide on COVID-19. Biden directed the Occupational Health and Safety Administration (OSHA) to develop an Emergency Temporary Standard (ETS).

On November 5, 2021, OSHA officially rolled out its ETS, which was to take effect starting December 6, 2021, for all portions of the ETS other than the testing and vaccination compliance date, which becomes enforceable on January 4, 2022. Here are the key points you need to know:


OSHA ETS: COVID-19 Vaccine Mandates

  • On November 5, 2021, the OSHA administration issued an ETS requiring that all employers with 100 or more employees ensure their employees are fully vaccinated against COVID-19 by January 4, 2022, or undergo weekly testing.
  • By December 6, 2021, employers must comply with all other ETS requirements, including providing paid time off for employees to get vaccinated and ensuring that unvaccinated workers wear face coverings in the workplace.
  • This ETS will remain in place until withdrawn or replaced with a permanent standard.
  • Although coming legal challenges may interfere with implementation and enforcement, employers should begin laying the groundwork for compliance right away, while keeping a close eye on legal developments.
  • The ETS adds to a multifaceted effort by the Biden administration to address the COVID-19 pandemic through workplace rules, which include the prior OSHA ETS focused on the healthcare industry, federal Executive Orders requiring federal employees and federal contractors to be vaccinated, and a new emergency regulation issued by the Centers for Medicare & Medicaid Services requiring healthcare workers at facilities participating in Medicare and Medicaid to be vaccinated.
  • [UPDATE!] On November 12, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard. The court ordered that OSHA take no steps to implement or enforce the ETS until further court order. While OSHA remains confident in its authority to protect workers in emergencies, it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. The next steps in the legal challenge process will be for related cases in other Circuit courts across the country to be consolidated through a lottery system for collective determination in one appellate Circuit court. The Circuit court selected through that random assignment process for collective consideration of all remaining, pending challenges, is the U.S. Court of Appeals for the Sixth Circuit. Ultimately, it is highly likely the United States Supreme Court will be asked to review and determine the final fate of the ETS mandate.

Employers must establish a mandatory, written vaccination policy with the following ETS Employer Guidelines:

  • The vaccine policy should include permissible exclusions for medical and religious exemptions.
  • The policy should include information regarding the collection and maintenance of vaccination statuses and/or COVID-19 test results.
  • Employers must indicate the right to paid time off or sick leave to obtain vaccinations.
  • Employers must notify employees of positive COVID-19 tests and the removal of COVID-19 positive employees from the workplace.
  • Employers must provide information to employees regarding deadlines for submitting proof of vaccination or COVID-19 test results.
  • Employers are expected to provide employees with information and training, including the benefits of getting vaccinated.

Workers must be allowed to take paid time off to get vaccinated:

  • Under the OSHA rule, employers must pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from adverse side effects.
  • Employers must be prepared to give paid time off, up to 4 hours, including travel time, for employees to receive their primary and/or secondary vaccination. NOTE: The ETS does not address boosters and whether they are included in the definition of “fully vaccinated.”
  • The ETS requires employers to provide employees with a “reasonable” amount of paid time off for recovery from adverse reactions to the vaccine.

Employers are not required to pay for costs associated with testing:

  • The rule does not require employers to pay for or provide testing to workers who decline the vaccine.
  • However, there are some limited exceptions where collective bargaining agreements or other circumstances may dictate otherwise.

Testing and face coverings are required for unvaccinated employees:

  • Unvaccinated workers must wear face coverings while indoors or occupying a vehicle with another person.
  • Employers must ensure that employee masks are properly worn and well-maintained.
  • Employers must ensure that each employee who is not fully vaccinated provides COVID-19 test results weekly, so long as the employee reports to the workplace at least once every seven days.
  • This ETS does not apply to employees who work from home, work remotely (alone), or who work exclusively outdoors, unless those employees also work part of the time indoors or with other employees in a shared workspace.

Employer recordkeeping is critical:

  • Employers should maintain an up-to-date roster of employee vaccination statuses.
  • Employers must obtain acceptable proof of vaccination and testing.

Employers must take immediate action to address employees who test positive and ensure their removal from the workplace:

  • Employers must require employees to promptly notify their employer when the employee tests positive for COVID-19.
  • If an employee tests positive, the employer must immediately remove the employee from the workplace.
  • Employers are not required to provide paid time off to employees with COVID who cannot work.
  • Employees may not return to work until they either test negative or satisfy the isolation requirements.

COVID-19 testing must follow certain protocols:

  • Both antigen and polymerase chain reaction (PCR) tests qualify as COVID-19 diagnostics. However, tests cannot be self-administered and self-read.
  • Employers may need to rely on testing providers or facilitate onsite testing.

Federal authority was asserted as the law of the land:

  • The Biden administration laid out its legal authority in issuing the rule, citing the responsibility OSHA has to provide workers with safe and healthy working conditions and to act quickly when workers are found to be facing grave danger.
  • The ETS indicates that it preempts inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face coverings, and/or testing.

Enforcement and penalties:

  • The federal government will expect companies to self-enforce the OSHA rule.
  • Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that amount for willful or repeated violations.

Legal challenges are expected and already underway:

  • A backlash against these mandates is expected. Prior to the details of these rules being released, two dozen state attorneys general already threatened to sue the Biden administration. Some states, including Missouri and Texas, have already filed suit against the Biden administration claiming executive overreach.
  • On Saturday, November 6, 2021, the U.S. Court of Appeals for the 5th Circuit Court issued an order temporarily blocking the Biden administration from mandating that companies with more than 100 employees require workers to get coronavirus vaccines or submit to weekly testing, citing “grave statutory and constitutional issues” with the federal COVID-19 vaccine rule that was developed by OSHA.
  • Several federal courts of appeal are considering challenges to the ETS and rulings are expected in the coming days and weeks. Until there is a final court order, the fate of the ETS remains unknown.

OSHA-approved state plans:

There is an additional step some states will have to take before the vaccine-or-test rule takes effect. Nearly two dozen states and Puerto Rico have OSHA-approved state plans that govern workplace safety.

  • Within 30 days of the federal OSHA effective date of November 5, 2021, those states must enact rules of their own that are at least as effective as the federal rule and must notify OSHA within 15 days of the state’s intent to adopt the federal ETS or implement its own plan.
  • Recently, the Labor Department threatened to revoke the state plans of three states—Arizona, South Carolina, and Utah—that had not yet adopted an emergency rule issued by OSHA in June aimed at protecting health-care workers.
  • While those same states and others could similarly delay the implementation of the federal vaccine-or-test rule, employers may decide to move forward on their own.

Final Notes from G&A Partners:

  • The ETS is quite lengthy, and we are still working to understand all the details.
  • Stay tuned – as we continue to learn more, we will do our best to summarize what you need to know.
  • The federal OSHA website provides some very helpful resources explaining the ETS, and the links to those resources are included below.

OSHA Resources for COVID-19 Vaccination and Testing ETS:


If you have any questions about this compliance update and how it relates to your specific business, please feel free to contact your Client Advocate or your on-demand G&A support team, AccessHR, at 1-866-497-4222. Thank you for allowing G&A Partners to support your business.


This content (except where noted as an "update") was originally sent to all G&A client contacts via email on November 11, 2021.

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