November 4, 2021

By Susan Richards Salen, Esquire

ETS for Large Employers Requiring Vaccination and Testing Issued

The Occupational Safety and Health Administration has issued its Emergency Temporary Standard on COVID-19 Vaccination and Testing applicable to large employers (those that employ 100 or more employees). Access OSHA information on and full regulation here: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (

Key points of the regulation are as follows:

Effective Date: Immediately

Coverage: Employers with total of 100 or more employees at any time this section is in effect. 29 CFR §1910.501(b).

NOT Covered: Federal contractors covered by Safer Workforce Task Force Guidance and employees providing health care services or support services covered by OSHA’s requirements at §1910.502.

Covered Employees: Do not include (1) employees that do not report to a workplace where other individuals are not present (no coworkers or customers at employee work location); (2) when an employee works from home; or (3) employees that work exclusively outdoors.



  • Verification of Employee Vaccination Status/Recordkeeping:
    • Employers must determine employee vaccination status of each employee;
    • Employers must require employees to provide acceptable proof of their vaccination status. (Employers that have previously ascertained employee status (by attestation or proof) need not request the information again from these employees);
    • Employers must maintain a record of employee vaccination status and preserve acceptable proof of employee vaccination status;
    • Employers must maintain a roster of each employee’s vaccination status;
    • Records and documentation of vaccination status must be maintained as medical records;
    • Records are only maintained and retained while ETS is in effect.


  • Any employee that cannot provide the proof of vaccination required by ETS will be treated as unvaccinated;
  • Paid Time-Off/Vacation for Vaccinations: Employers must provide reasonable amount of time for employees to obtain required doses; and provide up to 4 hours of paid time (including travel time) at employee’s regular rate of pay for this purpose
  • Sick Leave/Paid Time Off for Recovery: Reasonable time and paid sick leave to recover from side effects from vaccination doses (each dose);
  • Beginning on January 4, 2022, Employees who are not fully vaccinated must be tested (every 7 days) in accordance with the Regulation. Employers cannot accept an employee self-test and self-reading of the test. Employers do not have to pay for employee tests. Unvaccinated employees cannot work at any employer site if they do not provide employer with negative test results. Test records are to be maintained as medical records;
  • Employers must require employees to notify them of positive tests or diagnosis of COVID-19 by licensed healthcare provider. Employees infected with COVID-19 must be immediately removed from workplace and meet return to work requirements of the Regulation;
  • Beginning on December 5, 2021, employers must require unvaccinated/not fully vaccinated employees to wear face coverings (as defined by the Regulation);
  • Employers must report fatalities and hospitalization to OSHA required;
  • Records are subject to inspection by OSHA; and
  • Employers must notify employees of the requirements imposed by the Regulation.


Employers do not have to adopt a mandatory vaccination policy but must adopt a vaccination or testing policy. If a mandatory vaccination policy is adopted, exceptions/accommodations must be granted where the vaccine is medically contraindicated or due to an employee’s disability or sincerely held religious belief.


The Regulation pre-empts state or local laws that prohibit an employer from requiring compliance with testing or face coverings.

Extension of Deadline for Federal Contractors to Receive Vaccinations Necessary to Be Fully Vaccinated

In addition, the White House just extended the time period for federal contractor employees to receive their final dose of Pfizer or Moderna or the single dose of Johnson & Johnson by January 4, 2022.  OSHA’s mandate clarifies that employers covered by the federal contractor mandate do not need to comply with the OSHA ETS covering large employers.

Access White House Fact Sheet here Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies | The White House


Please contact Susan Richards Salen, Esquire, at 703-790-1911 or if you have questions or need assistance in complying with this new law.




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