OSHA’s 100 Employee COVID-19 Vaccine & Testing Regulations

November 5, 2021

Finding that “the nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them,” the Occupational Safety and Health Administration (OSHA) issued on November 4, 2021, an emergency temporary standard (ETS) and an accompanying press release.  The ETS provides rules implementing the Biden Administration’s COVID vaccine mandate for private employers with 100 or more employees.  The rules take effect on December 5, 2021.

Many employers and trade organizations are already threatening to challenge the ETS. The implementation of this new rule is likely to cause a great deal of uncertainty and confusion for employers and employees alike in the coming weeks.

The following are key provisions of the COVID-19 Vaccination and Testing; Emergency Temporary Standard:


  • Applies to private employers with more than 100 employees. Note: All employees are counted for this threshold, whether full or part-time, onsite or remote.
  • Compliance is required by December 5, 2021, except for COVID-19 testing for employees who are not fully vaccinated, which requires compliance within 60 days of the effective date.
  • Violators are subject to a fine of up to $13,653 for a single violation or up to $136,532 for a willful violation.


  • Employers must establish employees are fully vaccinated against COVID-19 or, employers can opt-out of mandatory vaccinations and instead require that employees be tested weekly and wear face coverings.
  • Requires each covered employer to establish and implement a written mandatory vaccination policy unless the employer adopts an alternative policy requiring COVID-19 testing and face coverings for unvaccinated employees.
  • Stops short of requiring the full suite of workplace controls against SARS-CoV-2 transmission recommended by OSHA and the CDC, including distancing, barriers, ventilation, and sanitation.
  • Includes record keeping and reporting requirements.

Employers Choosing Mandatory Vaccinations:

  • The written policy must require vaccination of all employees, including all new employees as soon as practicable, other than those employees:
    1. for whom a vaccine is medically contraindicated;
    2. for whom medical necessity requires a delay in vaccination; or
    3. those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices, or observances that conflict with the vaccination requirement.
  • Employees must provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.   Acceptable proof of vaccination status is:
    1. the record of immunization from a health care provider or pharmacy;
    2. a copy of the COVID-19 Vaccination Record Card;
    3. a copy of medical records documenting the vaccination;
    4. a copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s); or
    5. in other cases, an employee may be able to provide an affidavit.
  • Employers must support COVID-19 vaccination for each employee by providing a reasonable amount of time to each employee for vaccination and reasonable time and paid sick leave to each employee for side effects experienced following vaccination.
  • Employees who are not yet fully vaccinated must be:
    1. tested for COVID-19 at least once every seven days; and
    2. provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date the employee last provided a test result.

Opt Out Employers Requiring Testing:

  • All employees who are not fully vaccinated must be tested weekly.
  • All employees who are not fully vaccinated must wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except:
    1. when an employee is alone in a room with floor to ceiling walls and a closed door;
    2. for a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
    3. when employees are wearing respirators or face masks; or
    4. where the employer can show that the use of face coverings is infeasible or creates a greater hazard.
  • Opt out employers are not required to pay for testing of employees, meaning employees may be required to pay for tests.


  • Workers who do not come into contact with others for work purposes including employees who do not report to a workplace and employees who telework.
  • Employees who work exclusively outdoors.

Bottom Line

Expect confusion and uncertainty as employers and employees attempt to determine how to implement this mandate and how it will affect the workplace and the workforce.  Legal challenges suggest that whether the ETS will remain in place and/or the extent to which OSHA will enforce it are open questions at this time.  Axley will continue to provide updates as the situation develops.