OSHA Issues Vaccinate or Test Mandate; Appeals Court Halts Implementation

By Steve Donovan on Nov 16, 2021
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OSHA ETS vaccinate and mask mandate

UPDATE: On Friday, November 12, the U.S. Court of Appeals for the Fifth Circuit issued an order staying the enforcement of the new OSHA "vaccination or test" mandate impacting businesses with 100 or more employees until reviewed by the court. Petitions by states, individuals, employers, and religious groups have been filed in 11 out of the 12 circuit courts of appeals and on November 16, 2021, all petitions will be grouped together and reviewed before one of the circuit courts. 

According to Littler, if the circuit court agrees with the preliminary ruling, OSHA will be barred from enforcing the vaccination or test mandate. Ultimately, this court will determine if the Fifth Circuit’s order will continue. In the end, this may go before the United States Supreme Court to determine whether or not OSHA had the authority to issue the ETS.


On the heels of the highly contagious Delta variant, the Biden Administration rolled out plans for a vaccine mandate on September 10 affecting almost 100 million working Americans. Impacted workers include 80 million private-sector employees, health care workers at facilities that receive federal funding, federal contractors and subcontractors, and federal executive branch workers. To enforce the mandate for private-sector employers, President Biden asked OSHA to issue an Emergency Temporary Standard (ETS). On November 4, 2021, OSHA published its “COVID–19 Vaccination and Testing; Emergency Temporary Standard” in the Federal Register.

Steve Donovan, Director of Risk Management for Axcet HR Solutions, brings private-sector employers with 100 or more employees up to speed on the OSHA ETS.


The OSHA vaccine ETS requires private-sector employers with 100 or more employees at any time during the ETS to require employees to either (a) become fully vaccinated for COVID-19 or (b) submit to weekly COVID-19 tests and wear a face mask in lieu of vaccination. The ETS took effect on November 4, 2021, and employers must comply with all provisions except weekly testing by December 5, 2021. This includes the requirement for employers to determine the vaccination status of all of their employees and to develop a written vaccination and/or testing policy. Effective January 4, 2022, workers must be fully vaccinated or get tested for COVID-19 weekly and wear a mask.

vaccine and testing requirement affects 80 million private sector employees

How are employees counted?

Employee counts are company-wide, not based on each individual location. Therefore, employers must include all of their employees located across the U.S. when determining the number of employees at their organization. This includes all employees regardless of where they complete their work (i.e., full-time employees who don’t report to the office or only report to the office part of the time), seasonal and temporary employees, part-time employees and employees who are minors. Vaccination status does not impact employee count — vaccinated workers must be included in the employee count, as well as unvaccinated workers. Contractors are not included in the count.

Which employees are exempt from a mandatory vaccination policy?

All employees are required to comply with the vaccine mandate except those who fall into one of the following three groups:

  1. Employees who would be medically harmed by the vaccine;
  2. Employees who, due to medical reasons, require a delay in vaccination; or
  3. Employees who are legally entitled to reasonable accommodation due to disability or sincerely held religious beliefs, practices or observances that conflict with the COVID-19 vaccination mandate.

Natural immunity (i.e., positive antibody tests) do not provide an exemption from the vaccine mandate.

Other workers who are excluded from the mandate include those who work from home 100% of the time and those who perform all of their work duties outdoors.

PEO Clients were 60% Less Likely to Permanently Close During the Pandemic

Are employers required to pay for weekly testing and face coverings?

While the ETS does not require employers to pay for costs associated with regular COVID-19 testing or face coverings, employers should be mindful of their requirements to compensate employees for their time under wage and hour laws and collective bargaining agreements. Some employers may be required to pay for testing if there are other laws or union agreements requiring employers to pay for medical testing.

What steps may employers consider between now and December 5?

By December 5, 2021, employers with 100 or more employees can establish, implement and enforce a written policy. The policy must allow employees to choose to either become fully vaccinated by January 4, 2022, or provide proof of weekly testing and wear a face-covering in lieu of taking the COVID-19 vaccination.  {see update at the beginning of this post about recent court ruling putting this on hold)

What should the vaccination and/or testing policy include?

According to OSHA, a comprehensive policy should address the following and should be written in a language and literacy level employees can understand:

  1. COVID-19 vaccination requirements, including effective dates, deadlines, and who is affected
  2. Acceptable reasons to be exempt from the mandate
  3. How the proof of vaccination will be determined and collected
  4. Paid time off to receive the vaccine and paid sick leave to recover from vaccine side effects
  5. Notification and removal from the workplace process for employees who test positive for COVID-19
  6. Where employees can find more information about the ETS, your policies, and vaccine safety and efficacy rates
  7. How employees who fail to comply with the company’s vaccine mandate will be  managed

How is vaccination status determined?

According to OSHA, vaccination status can be determined by obtaining a copy of one of the following:

  1. Record of immunization from a doctor or pharmacy
  2. U.S. COVID-19 Vaccination Record Card
  3. Medical records
  4. Immunization records from public health, state or tribal immunization information system
  5. Any other official documentation that includes the types of vaccine, date(s) of administration and source of the vaccine administration

An employee is considered fully vaccinated two weeks following the completion of their primary COVID-19 vaccines. Booster shots are not included in the ETS.

At this time, OSHA is considering whether or not it is feasible for smaller businesses to be required to comply with the mandate in the future. For more information, visit the OSHA ETS FAQ page here or contact Axcet’s Risk Management department. If you haven’t already, subscribe to the Axcet Blog to receive email updates on the vaccine mandate and other trending HR news direct to your inbox.

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Written by Steve Donovan

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