To Vaccinate Or Not To Vaccinate: That May No Longer Be The Question

November 8, 2021 | By Melissa M. Blanco

On November 4, 2021, as President Biden ordered, the Occupational Safety and Health Administration (OSHA) released its emergency temporary standard (ETS) concerning vaccination requirements. As predicted, the ETS requires employers with at least 100 employees to enact a vaccination policy. If an employer chooses not to mandate vaccinations for all employees, the employer must require all unvaccinated workers to wear face coverings while in any open space and submit to COVID-19 testing on a regular basis.

One day after the ETS was published, several states filed emergency lawsuits in various courts, including the United States Court of Appeals for the Fifth Circuit, to invalidate the ETS. Preliminarily persuaded by the states’ arguments, the Fifth Circuit halted the rule and ordered OSHA to respond by November 8.

Even though the ETS presently is paused, it is too early to predict its ultimate fate. Thus, employers would be wise to familiarize themselves with the many facets of the rule to be able to comply in the event the ETS is upheld.

This issue of the HR Legalist will explore five questions: (1) Who does the ETS apply to?; (2) What does the ETS mandate, prohibit, and permit?; (3) Where is the ETS applicable?; (4) When will employers be required to comply?; and (5) How do employers comply?


The ETS applies to private, non-healthcare employers with more than 100 employees (“covered employers”), as well as state and local governments in 28 states (including CT, NY, and NJ, but not PA or DE). In determining whether the ETS applies, employers must count all employees across the U.S., as of November 5, including those who work outside, remotely, or from their vehicles, as well as part-time and seasonal or temporary workers employed directly by the employer (rather than a staffing agency). If, after November 5, an employer’s workforce drops below 100, the employer is still bound by the ETS. If the count reaches 100 after November 5, the employer must begin complying with the ETS.

The ETS does not apply to the healthcare industry or federal contractors, both of which are subject to rules that require workers to be vaccinated with no alternative for weekly testing. 


All covered employers must enact a written vaccination policy that either: (1) requires all employees to be vaccinated (no requirement for boosters), or (2) permits unvaccinated employees to continue working if they undergo regular testing and wear face coverings indoors.

The ETS also provides:

  1. Employers must provide workers paid time off to get vaccinated and sick leave to recover from any side effects.
  2. Employers do not have to pay for testing or masks unless required by a collective bargaining agreement or other state or local law.
  3. Unvaccinated employees who are allowed to test weekly must wear face coverings in any open, indoor area, including a cubicle.
  4. Employers must allow vaccinated employees to voluntarily wear masks unless doing so would be hazardous.
  5. Unvaccinated remote workers do not have to test weekly, but must do so within one week of returning to work; unvaccinated, untested employees cannot enter the workplace, even if masked.

If an employer chooses to implement a mandatory vaccination policy with no testing alternative, such a policy must require vaccination of all employees, other than employees who cannot be vaccinated for medical reasons and who are legally entitled to a reasonable accommodation under federal civil rights laws because of a disability or a sincerely held religious belief. Employers must permit the exempted individuals to undergo regular testing and wear face coverings when indoors.


The ETS applies across the entire United States and supersedes all inconsistent state and local laws.  The ETS expressly supersedes state laws that prohibit employers from mandating the vaccine, facial coverings, or testing for COVID-19. However, because the rule is considered the floor, rather than the ceiling, it does not appear to preempt state or local laws that are more protective than the federal standard.


The ETS went into effect on November 5, 2021, and was expected to last only six months. Before the Fifth Circuit stayed the rule, employers were required to do the following by no later than December 6: (1) establish a written policy on vaccinations; (2) determine the vaccination status of each employee and obtain acceptable proof of vaccination, and (3) provide the leave necessary for employees to become vaccinated. Employers also were required to implement testing for unvaccinated employees by January 4, 2022. In light of the stay, HR Legalist will continue to evaluate this timeline and will provide updates as they become available.


After choosing between a mandatory vaccination policy and a “vax or test” policy, employers must reduce the policy to writing. Once they have done so, employers should ensure that the policy, as well as information concerning criminal penalties for knowingly supplying false information, is readily accessible to all employees. Employers must collect proof of vaccination and maintain a log of all employees’ vaccination statuses (not including booster information). This information must be maintained as confidential medical records. If requested, employers must provide their written plan and vaccination log to OSHA within four (4) business hours of the request.

The ETS subjects employers to numerous, specific requirements. If you need assistance understanding the ETS or ensuring your written COVID-19 vaccination policy is up to par, Obermayer’s Labor and Employment attorneys are prepared to answer any questions you may have.

HR Legalist will continue to monitor developments in this arena and will provide updates as they become available.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Melissa M. Blanco


Melissa is an attorney in the Litigation Department, focusing her practice on restrictive covenant and trade secret cases, commercial litigation, and appellate matters. In her position, Melissa has worked to secure preliminary...

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