Emergency Temporary Standard Issued on COVID-19 Vaccination and Testing

Jim Gaughan and Anne Jackson November 5, 2021

In response to President Biden’s executive order issued in September, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standard (ETS) on COVID-19 vaccinations and testing on November 4. The new ETS covers private-sector employers (Note: healthcare, nursing homes, Medicare and Medicaid facilities, as well as Federal employees and contractors are covered by previously issued emergency temporary standards. These standards are the Healthcare ETS and Federal Contractors Guidance).

States who operate under their own OSHA state plans are required to adopt and enforce occupational safety and health standards that are at least as effective as federal OSHA requirements. In addition, OSHA requires that state plans cover state and local government employees (including state and local school systems within the scope of the ETS), even though federal OSHA standards do not have coverage over such employees in states without OSHA-approved state plans. You can view the complete list of state-plan states here.

Large Employers

Effective January 4, 2022, all “large” employers, defined as employing 100 or more workers, must develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employers that do not enforce a mandatory vaccination policy must instead adopt a policy that requires employees to either be fully vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Sample policies from OSHA are linked below.

The employee count requirement is company- or corporate-wide (not by individual workplaces). The requirements of the ETS do not apply to employees who do not report to a workplace where other individuals are present, employees working exclusively from home and employees who work exclusively outdoors.

Additional Requirements

In addition to the mandatory COVID-19 policy, covered employers must:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status and maintain a roster of each employee’s vaccination status;
  • Support vaccination efforts by providing employees reasonable time to receive each primary vaccination dose, including up to four hours of paid time. Reasonable time and paid sick leave should also be provided to allow employees time to recover from any side effects experienced following each primary vaccination dose;
  • Ensure each non fully-vaccinated employee is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer);
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19;
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. Keep the employee out of the workplace until all return to work criteria are met;
  • Ensure each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances;
  • Provide each employee with necessary information, in a language and literacy level the employee understands, about the requirements of the ETS, workplace policies and procedures established to implement the ETS, the protections afforded by the ETS against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false statements or documentation;
  • Report work-related COVID-19 fatalities to OSHA within eight hours of being notified and work-related COVID-19 in-patient hospitalizations within 24 hours of being notified. Reporting may be completed online at, by calling the nearest OSHA office, or by calling the OSHA hotline at 1-800-321-OSHA (6742);
  • Make certain that records are available for examination and copying to an employee, anyone with written authorized consent of that employee, or an employee representative.

Implications on Medical Records

OSHA considers ‘personally identifiable’ vaccination records as “employee medical records.” As such, these records must be maintained in a confidential manner for the length of time the ETS is in effect. In addition, employers must provide each employee’s COVID-19 vaccine documentation to the employee and to anyone with written authorized consent of that employee for examination and copying.

The ETS provides that by the end of the next business day after a request by an employee or an employee representative is received, the employer must provide the requester with the aggregate number of fully vaccinated employees at a workplace and the total number of employees at that workplace.


Employers must comply with most provisions of the ETS by December 4 and adhere to the testing requirements by January 4, 2022. The ETS allows OSHA to levy fines of $14,000 per violation.

For more information and resources, including a mandatory vaccination policy template, please visit

Vaccine and Testing Tracking Solution

For more information, questions, or assistance with implementing the requirements of this ETS, or interest in the SISCO Vaccine & Testing Tracking solution, please contact us. To learn more about how SISCO’s Vaccine and Testing Tracking Solution allows your business to seamlessly track your vaccination and testing efforts, complete the form below.

Note: This communication is for informational purposes only. Although every reasonable effort is made to present current and accurate information, Oswald makes no guarantees of any kind and cannot be held liable for any outdated or incorrect information. View our communications policy.