NAICU Washington Update

OSHA Issues Vaccine Mandate Rule for Large Employers

November 05, 2021

The Occupational Safety and Health Administration (OSHA) has published its highly anticipated rule on vaccines for employers with 100 or more employees.  Published as an interim final rule, the directive establishes an emergency temporary standard (ETS) governing COVID-19 vaccination and testing requirements which will affect all large employers, including many colleges and universities. 

According to OHSA, the rule is intended to preempt any state or local requirements that ban or otherwise limit an employer’s authority to require vaccines, testing, or face masks.  OSHA has indicated that it will update the ETS as events warrant, but is also seeking comments within 30 days on all aspects of the ETS and whether it should become a final standard.

The rule, which differs from separate coronavirus-related requirements issued in September that apply to federal contractors, is part of President Biden’s broader COVID-19 action plan.

Outlined below are the key requirements and other details and timelines for the OHSA rule, as well as updated vaccine guidance for federal contractors.  Both the OSHA rules and federal contracting requirements are sure to stir controversy, including lawsuits by states with conflicting policies.  


Under the OSHA rule, employers with 100 or more employees must require employees to be fully vaccinated or to submit to weekly COVID-19 testing and wear a face covering at work. Employers subject to the OSHA rule must also provide up to four hours of paid time and reasonable paid sick leave to support vaccination. 

As detailed below, the rule establishes a number of requirements related to vaccination, testing, face masks, recordkeeping, coverage, preemption, enforcement, and effective dates. However, it is important to note that the scope of the rule may expand over time. For example, the rule does not impose other COVID-19 safety protocols on employers, such as distancing, barriers, ventilation, or sanitation. However, OSHA has requested comments on whether the agency should add such requirements in the future. 

Other requirements under consideration include whether to impose similar standards on smaller employers or to establish a strict vaccine mandate with no testing opt out.


Under the OSHA rule, employers are required to determine the vaccination status of each employee. Vaccinated employees must provide acceptable proof of their vaccination status, and unvaccinated employees must provide documentation regarding weekly testing results. Employers are required to maintain records regarding employee vaccination status, including proof of vaccination and weekly testing results. 

If an unvaccinated employee fails to provide documentation of test results, an employer is required to remove the employee from the workplace until the individual provides such results, though employees who have received a positive COVID-19 test or diagnosis are exempt from testing for 90 days following the positive test or diagnosis. 

Employers also must require employees to notify them of a positive COVID-19 test or diagnosis and to remove such employees from the workplace until they have recovered. The rule does not require employers to provide paid time for employees who have been removed due to COVID-19, but notes that paid time off might be required under other laws, regulations, or agreements. 

Likewise, employers are responsible for ensuring that unvaccinated employees wear face coverings when inside or when operating a work vehicle with another person, with some limited exceptions. However, employers are not required to pay for the cost of COVID-19 testing or face masks for employees who remain unvaccinated, unless the employer chooses to or is required to do so under other federal or state laws or collective bargaining agreements. 

Under the rule, employers cannot prohibit employees from voluntarily wearing a mask unless doing so would create a hazard. Employers are also prohibited from preventing customers or visitors from wearing face masks. 

In addition, employers are required to develop written COVID-19 policies and to inform employees about those policies, as well as the benefits of being vaccinated and protections against retaliation for employees who report violations. Employers are also required to report work-related COVID-19 fatalities and hospitalizations to OSHA. 


Under the rule, the following entities are exempt from coverage:
  • Federal contractors and subcontractors covered under safety protocols and guidance issued by the Safer Federal Workforce Task Force;
  • Settings where employees perform healthcare services and are subject to OSHA’s existing COVID-19 Healthcare ETS; or
  • Employees who telework, work exclusively outdoors, or do not report to a workplace where other people are present.
In addition, workers with disabilities or sincerely held religious beliefs may be entitled to a reasonable accommodation under the Americans with Disabilities Act or Title VII of the Civil Rights Act. The Equal Employment Opportunity Commission has published detailed guidance about civil rights issues related to COVID-19, including information about evaluating employee requests for reasonable accommodations regarding vaccine requirements. 

Preemption, Enforcement, and Effective Dates

In the preamble to the rule, OSHA notes that its governing statute provides that an ETS issued by the agency preempts any state occupational safety or health standard “relating to [the same] occupational safety or health issue” as the federal standard. As noted above, the rule is intended to preempt any state or local requirements that ban or otherwise limit an employer’s authority to require vaccines, testing, or face masks. 

In terms of enforcement, OSHA violations are punishable by fines of approximately $13,000 per violation and $136,000 for willful violations. OSHA has published a number of resources to assist employers in complying with the rule, including a webinar, frequently asked questions and other compliance materials.

Although the OSHA rule is effective November 5, 2021, employers have until January 4, 2022 to comply with the provisions requiring them to ensure that employees who are not fully vaccinated are subject to weekly COVID-19 testing. Employers have until December 6, 2021 to comply with all other provisions of the rule.  In general, an ETS issued by OSHA is expected to be in place for six months and serves as the basis for a permanent standard. 


In addition to the new OSHA rules, the federal government published updated guidance for federal contractors this week. Specifically, the federal task force responsible for implementing President Biden’s Executive Order on COVID-19 safety protocols issued new FAQs on employee accommodations, compliance, and more. For example, the updated guidance provides additional flexibility to contractors to resolve requests for reasonable accommodations. Employees who have made such requests may continue to work while the request is pending, provided that they are following other safety protocols for individuals who are not fully vaccinated. 

The guidance also clarifies that federal contractors are responsible for enforcing the new contracting requirements.  Specifically, the guidance suggests that employers rely on their usual process for enforcing violations of workplace policies or follow the practices of federal agencies, which use an enforcement process that encourages compliance via counseling and education, with removal as a last resort. With respect to enforcement by federal agencies, the guidance states that agency contracting officials will work to resolve challenges with contractors who are acting in good faith and will seek termination only if the contractor is not taking steps to comply.

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