COVID-19 Vaccine Mandate: What You Need to Know

***UPDATE*** On January 13, 2022, the Supreme Court of the United States blocked OSHA’s COVID-19 vaccine mandate as it applies to large businesses. Read the entire ruling.

On November 4, 2021, the Biden Administration announced that the Occupational Safety and Health Administration (OSHA) would issue the first federal COVID-19 vaccine mandate for employers. Clearly, a lot has changed since we last addressed employee vaccination requirements.

This mandate is a new emergency temporary standard (ETS), officially titled the COVID-19 Vaccination and Testing ETS. It sets new employee vaccination requirements and also the option to test employees who are unvaccinated.

Just a week after OSHA published the new standard, the U.S. Court of Appeals for the Fifth Circuit issued a nationwide injunction preventing its enforcement. Now, the legal tide has turned in OSHA’s favor. That is, the newly appointed U.S. Court of Appeals for the Sixth Circuit dissolved the injunction on December 17, 2021.

For employers, this means that new compliance requirements are on the horizon. If the mandate applies to your company, here’s what you need to know.

5 Terms You Need to Know
What is OSHA’s COVID-19 Vaccine and Testing ETS?
How to Comply with the COVID-19 Vaccine Mandate
OSHA’s COVID-19 Vaccine Mandate ETS is Open For Comments

5 Terms You Need to Know

The media has used quite a few new terms in the COVID-19 vaccine mandate conversation. Some are more familiar than others. Here are five you need to know:

1. OSHA

OSHA stands for the Occupational Safety and Health Administration. OSHA is a federal administrative body located within the United States Department of Labor. Its mission is to “ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.”

2. ETS

ETS stands for emergency temporary standard. OSHA uses emergency temporary standards when it determines employees are in “grave danger” and an emergency standard is needed to protect them. These standards are effective immediately and generally stay in effect until OSHA passes a new permanent standard.

3. “Large Employer”

Employers are wondering if they have enough employees to be covered by OSHA’s COVID-19 vaccine mandate. The mandate itself limits the mandate to large employers. Section 1910.501(b)(1) of the standard defines large employers subject to the mandate as employers with at least 100 employees.

4. Covid-19 Tests

There are two types of tests: diagnostic tests and antibody tests. While diagnostic tests are used to determine whether the patient has a current COVID-19 infection, antibody tests look for antibodies created by the body’s immune system to fight COVID-19. Antibody tests can show whether a person has been infected by the virus, but they can’t determine whether the person tested currently has COVID-19.

FDA has approved two types of COVID-19 diagnostic tests:

Molecular (RT-PCR) Tests

Molecular tests can identify the virus’s genetic material. They take longer to complete, but the FDA considers them to be the most accurate test.

Antigen (Rapid) Tests

Antigen tests detect proteins that are unique to coronavirus. These proteins appear on the surface of the virus. Antigen tests are helpful because those tested can receive results the same day.

5. EUA

EUA stands for Emergency Use Authorization. Throughout the COVID-19 pandemic, the Food and Drug Administration (FDA) has issued several EUA’s authorizing the use of COVID-19 vaccines. This includes the Pfizer-BioNTech and Moderna vaccines, Johnson & Johnson’s vaccine, and now an oral antiviral treatment. It has also issued EUA’s authorizing certain COVID-19 testing methods, including the RT-PCR test and the Antigen rapid test, and medical devices.

What is OSHA’s COVID-19 Vaccination and Testing ETS?

OSHA issued the COVID-19 Vaccine and Testing ETS to protect employees at large companies and government employers. Under the standard, employers must ensure that all employees are either fully vaccinated, or alternatively, tested for COVID-19 every week.

You can find the entire standard here.

Key Requirements of the COVID-19 Vaccine Mandate

OSHA’s new ETS requires the following:

Employee Vaccination Requirements

Employers must implement a mandatory vaccination policy that complies with §1910.501(c). The policy must require all employees to either be fully vaccinated against COVID-19 or tested on a weekly basis.

Alternative Testing and Masking Policy

Employers may implement an alternative policy that requires unvaccinated employees to be tested on a weekly basis and wear a face covering while in the workplace.

Paid Time Off Requirements

Employers must provide employees with time off to receive the vaccine. This must include up to 4 hours of paid time off to receive. Because the vaccines have known side effects, employers must also provide employees with reasonable time off and paid sick leave to recover after they’ve received the vaccine.

Confirm Employee Vaccination Status

Employers must determine every employee’s vaccination status. Compliant proof of status includes:

immunization records from a health care provider or pharmacy,
a copy of their COVID-19 vaccination record card,
a copy of the employee’s immunization records held by the public health, state, or tribal information system, or
A copy of any other official documentation that contains all relevant vaccination information.

Using an Affidavit: If an employee can’t produce acceptable proof of vaccination, they may provide a statement that complies with section 1910.501(e)(2)(vi).

Recordkeeping Requirements

The ETS requires that employers keep vaccination records. Like other medical records, vaccination status must not be kept in the employee’s normal employee file. Instead, vaccination records should be kept in a file that complies with federal laws related to medical records.

Compliance with Title VII and the ADA

Any COVID-19 vaccination or test policy implemented by an employer must still comply with Title VII and the ADA. For more guidance on Title VII, the ADA as they relate to COVID-19, review the EEOC’s COVID-19 technical assistance.

Applicability of the COVID-19 Vaccine Mandate

The COVID-19 vaccine mandate applies to all employers with 100 or more employees that are subject to the Occupational Safety and Health (OSH) Act of 1970. Although the mandate is broad-reaching, it also has exceptions. The mandate does not apply to:

Workplaces covered under the Safer Federal Workforce Tas Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
Workplaces subject to OSHA’s Healthcare ETS.
Employees who don’t report to a workplace where other individuals, like coworkers or customers, are present.
Employees working from home.
Employees who work exclusively outdoors.

Effective Date vs. Compliance Date

Emergency temporary standards become effective as soon as they’re issued and remain in effect until replaced by a permanent standard.

Compliance Date

For employers, the most important date is the compliance date. This is the date by when they must be in compliance with the new standard. According to OSHA’s most recent COVID-19 vaccine mandate FAQ, employers must be in compliance with the mandate by the following dates:

January 10, 2022. By January 10, employers must be in compliance with “all requirements other than testing for employees who have not completed their entire primary vaccination dose(s).”
February 9, 2022. By February 9, employers must be in compliance with all ETS requirements, including testing requirements for unvaccinated employees.

Since the standard was recently the subject of a nationwide injunction, OSHA announced in a litigation update that it would exercise enforcement discretion regarding compliance dates. This discretion is intended to give companies who are acting in good faith the time they need to comply.

Pending Litigation: Where Are We Now?

Shortly after OSHA issued the standard, several states and companies filed a lawsuit in the Fifth Circuit challenging the ETS’s legality. On November 12, 2021, the Fifth Circuit issued a nationwide injunction, preventing OSHA from enforcing the ETS pending litigation.

Lawsuits have marred OSHA’s COVID-19 vaccine mandate from the beginning. Although the Fifth Circuit’s decision garnered the most attention, other parties have filed several other civil actions. Since all of these lawsuits were relatively the same, the U.S. Judicial Panel on Multidistrict Litigation stepped in to consolidate them into a single lawsuit.

To decide which federal appeals court would hear the consolidated lawsuit, the panel used a lottery system. The lottery system selected the Sixth Circuit.

How to Comply with the COVID-19 Vaccine Mandate

According to the New York Times, the uncertainty caused by the pending litigation has left companies “totally confused.” Still, OSHA’s COVID-19 Vaccination and Testing ETS will move forward. According to OSHA, this means that employee vaccination requirements must be in place by January 10, 2022.

If the mandate applies to your company, here are three tips to help you comply with the vaccine mandate on time:

1. Invest in COVID-19 vaccination and testing software.

COVID-19 vaccination and testing software automates the vaccination tracking process. Although new, SaaS software companies are developing software tools with varying capabilities to try and lighten the workload for HR personnel charged with COVID-19 response.

One company, Continental Messaging Solutions (CMS), recently launched a full-service mobile-friendly COVID-19 vaccination tracking and testing software. CMS’s software tracks employee vaccination status, employee testing and test results, and Title VII/ADA reasonable accommodation requests.

If you’re considering a software solution, consider investing in software that provides vaccine, testing, and quarantine tracking.

2. Contact corporate counsel if your company is unionized.

COVID-19 vaccine mandates may trigger the need to renegotiate collective bargaining agreements (CBA) between your company and unionized employees. In November, the National Labor Relations Board (NLRB) issued Memorandum OM 22-03 to provide further guidance on CBA’s as they related to vaccine mandates

If your company has unionized employees, contact your counsel to discuss whether new CBA negotiations are advisable.

3. If you think you might miss the compliance deadline, contact OSHA.

OSHA is currently exercising enforcement discretion to account for the confusion that pending litigation may have caused. If you think you might miss one of the two compliance dates, contact your state OSHA office. If you inform OSHA of the efforts you’re making to comply with the vaccine mandate, they may provide your company with an extended deadline.

OSHA’s COVID-19 Vaccine Mandate is Open For Comments

Although temporary, the COVID-19 Vaccination and Testing ETS is a proposed administrative rule that will likely become permanent. As with other administrative rules, this ETS is open for public comments. You can submit your own comment on the rule to the Federal Register here.

For more information about COVID-19 testing or how to receive a COVID-19 vaccine please visit one of the following websites: