OSHA Announces New Emergency Temporary Standard on Vaccines, Testing

Nov. 4, 2021
Under this standard, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination (or test) policy. Early industry reaction voices concerns.


WASHINGTON, DC, November 4, 2021 – The U.S. Department of Labor's Occupational Safety and Health Administration today announced a new emergency temporary standard to protect more than 84 million workers from the spread of the coronavirus on the job. The nation's unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.

Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

  • See below for three early industry reactions.

Since 2020, the coronavirus has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation's history. Many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

The emergency temporary standard covers employers with 100 or more employees – firm or company-wide – and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

The ETS also requires employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee's vaccination status;
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria;
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer);
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.

“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “As part of OSHA's mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

OSHA is offering robust compliance assistance to help businesses implement the standard, including a webinarfrequently asked questions and other compliance materials.

The ETS will cover two-thirds of the nation's private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.

Leading companies, including major airlines, manufacturers and retailers, have taken similar actions in recent months – adopting vaccine requirements or regular testing as necessary measures to protect their workers and customers.

The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.

The ETS also serves as a proposal for normal rulemaking for a final standard. OSHA is seeking comment on all aspects of this ETS and whether the agency should adopt it as a final standard.

OSHA will continue to monitor the status of COVID-19 infections and deaths, as the number of vaccinated people in workplaces and the general public increases and the pandemic evolves. OSHA will update the ETS should the agency find a grave danger no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures is needed.


Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to help ensure these conditions for America's workers by setting and enforcing standards, and providing training, education and assistance. Learn more about OSHA.


Statement from Associated General Contractors CEO Stephen Sandherr:

“This association has been an ardent advocate for the coronavirus vaccine. We were among the first to organize a nationwide coronavirus vaccine awareness week, have worked with the CDC to provide resources and public service ads specific to the construction industry, and continue to take every possible step to urge construction professionals at all levels to get vaccinated.

Instead of providing additional resources and support to encourage workers to do the right thing, the Biden administration’s new vaccine mandates will make the challenge of vaccinating more construction professionals harder, based on our initial analysis of the measure.

The rule creates more confusion than clarity. For example, the measure claims to require workers to incur the costs of testing, yet it also says many employers will likely be required to pay those workers for the time spent getting tested. The rule also claims to exempt people who work outside – something many in construction do – but then defines outside in a way that excludes just about every occupation traditionally performed outdoors.

By opting to have one standard apply to federal contractors, a different standard apply to firms that employ 100 or more people, and no standard for firms with 99 or fewer workers, the administration is doing more to encourage vaccine-reluctant workers to relocate to smaller firms than to get vaccinated. This is something many workers will easily be able to do in a labor market where nearly 90 percent of construction firms are having a hard time finding workers to hire.

The Biden administration isn’t even clear on whether there is an emergency to justify this rule’s rapid drafting and implementation. On one hand, the narrative refers to the rule as an Emergency Temporary Standard while also labeling it an Interim Final Rule. And while declaring an immediate emergency, the measure also finds the time to ask for comments over the next 30 days.

We all want to see more people vaccinated and we are all doing our part to make that happen. But this rule will lead many workers to shift jobs to smaller firms while leaving larger contractors with the burden of having to comply with a complex new rule while they struggle to find workers that don’t exist to meet client demands that do.

The path to ending the pandemic does not lie through confusion, coercion or conflicting mandates. That is why this association will provide comments to this measure designed to fix its many flaws and continue to explore all other possible options to protect the construction industry and the economy from the many risks created by this measure.”


Statement from Associated Builders & Contractors Vice President Ben Brubeck:

“The OSHA ETS is likely to increase compliance costs and cause regulatory burdens that will exacerbate several headwinds facing the construction industry—which is currently facing a workforce shortage of 430,000, escalating materials prices and supply chain bottlenecks—and the American economy. We are currently reviewing the 490-page rule and related documents from the Biden administration in order to thoroughly evaluate its impact on our membership and the construction industry.

ABC will be participating in the rulemaking process and plans to assess additional actions, which may include facilitating industry compliance and/or filing a legal challenge. In the interim, ABC continues to encourage industry stakeholders to get the COVID-19 vaccine and use all available tools to ensure healthy and safe work environments.”


Statement from employment lawyer Keith Wilkes, partner, Hall Estill, Oklahoma City

"The ETS is big news, but we have been expecting it to drop since mid-October when the first draft went to The White House. What we did not know, however, is the answer to questions posed by employees and employers since the ETS was announced by President Biden in early September, including whether the ETS would be essentially the same mandate being put in place for federal employees and federal contractors. We know today that there are some important differences, beyond the option provided in the ETS for employers to conduct mandatory weekly testing to non-vaccinated employees.

  • The ETS does not apply to employees of covered employees who do not report to a workplace where other co-workers or customers are present, or who work exclusively from home;
  • If an unvaccinated office employee has been teleworking for two weeks but must report to the office, where other employees will be present (e.g., coworkers, security officers, mailroom workers), on a specific Monday to copy and fax documents, or attend a meeting, that employee must receive a COVID-19 test within the seven days prior to the Monday and provide documentation of that test result to the employer upon return to the workplace;
  • Employers covered under the new OSHA ETS have their work cut out for them to get in compliance with the new standards, while employees who are given the option for weekly mandatory testing will have to pay for that testing out of their own wallets.

The OSHA ETS will be officially published on November 5, triggering the countdown towards two important deadlines. Sixty days from the November 5, not counting that day, is January 4, 2022. This is the date mandatory weekly testing compliance begins for employers twho choose to allow employees this option.

Until then, however, covered employers have a long laundry list of legal requirements to accomplish and prepare for in the next 4 weeks, to include the implementing a mandatory mask policy for employees who are not fully vaccinated by December 5, 2021, and begin requiring unvaccinated employees to wear face masks in the workplace."