COVID-19 Vaccines Mandate Deadline

The deadline for employers to mandate COVID-19 Vaccines (or Testing) has been set by OSHA – DECEMBER 6, 2021 for Vaccines and JANUARY 4, 2022 for Testing

HOWEVER, this serves as a proposal…for a final standard. There is still time for submissions of comments to address the current ruling.  As such, OSHA seeks comments on all aspects of this proposal, specifically comments on items such as:

  • What about employers less than 100?
  • What about natural immunity? OSHA states: “This is an area of ongoing scientific inquiry. Given scientific uncertainty and limitations in testing for infection and immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face covering based on prior infection with COVID-19.”
  • Should OSHA make the final standard mandatory vaccinations without a weekly testing alternative?
  • If the weekly testing option should remain, is weekly testing sufficient or should they mandate more frequent testing?
  • How administratively realistic/burdensome would it be for the requirements here to become the new normal long-term?


  • What is this Mandate? Employees need to be either vaccinated or show a negative test either every 7 days or at least 7 days before appearing in the workplace
  • When will the Mandate go into effect (Section M)?
    • November 5, 2021: Official published ETS
    • December 6, 2021: 30 days after the published ETS, employers are required to implement the ETS. Since 30 days falls on a Sunday, the requirement starts on Monday, December 6th.
    • January 4, 2022: 60 days after the published ETS, employers are to begin testing
  • Which Employers are impacted?
    • Employers with 100 or more employees at anytime the standard is in effect.
    • Not at 100 but have plans to GROW? If you increase your employees to 100 within the 6 months the ETS is in effect (November 5, 2021), you will be subject to the ETS from the first date of the ETS timeframe in which you have 100 employees through the duration of the ETS regardless of fluctuations in size.
  • Which employees are exempted (Section B)?:
    • Employees working along or when they are working from <- REMOTE!!!
    • Employees who work EXCLUSIVELY outdoors.
    • Some employees may be entitled to reasonable accommodation from their employer, absent undue hardship, due to a medical condition or sincerely held religious belief.
  • How to determine headcount: Employers must include ALL employees across all of their U.S. locations, regardless of where they perform their work. Part-time employees do count towards the company total, but independent contractors do not. Additional sections of the ETS detail how the threshold should be determined in situations involving franchisees, multi-employer workplaces and staffing agencies.
  • Who will cover the costs? Unforutnately some of the cost will fall to the employer while other cost will fall to the employee.
    • Employers will be required to provide paid time off, up to 4 hours, to receive the vaccine. Additionally, reasonable paid sick leave will be required to support any potential after effects from receiving the vaccine. (Section F)
    • Employers, however, will NOT have to pay for the cost associated with regulare COVID-19 testing or the use of face coverings…these costs will fall on the employee.
      • Although some employers may decided to pick this cost up. It’s a good benefit, however, it does discourage unvaccinated employees from getting the vaccine.
      • Employers will also need to check their local OSHA, as some State OSHA rules require employers to pay for testing.
    • NOTE: Some employees may be entitled to reasonable accommodation from their employer, absent undue hardship, due to a medical condition or sincerely held religious belief.
  • Mandatory testing (Section G) and masking (Section I) for unvaccinated employees: Employees who do not provide satisfactory proof or attestation of being fully vaccinated are subject to mandatory testing and masking under the ETS, with testing to begin no later than 60 days after the ETS takes effect (i.e., Tuesday, January 4, 2022).
  • The battle of State versus Federal continues:
    • The ETS requirements apply to employers under federal OSHA’s jurisdiction. States with their own state-OSHA program will have 30 days to adopt this ETS or create their own that’s at least as comprehensive as this one (and will have 15 days to notify the ferderal OSHA of thier plan).
    • “OSHA intends to preempt any State of local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.”
  • Penalties:
    • For 2020, the penalty cost is up to $13,653 per violation. This is expected to increase year over year with inflaction.
    • For employers with a “willful” or “repeated” violation, expect to see penalties as much as $136,532 per violation.

Actions you need to take:

  1. You will be REQUIRED to implement a Vaccination/Testing Policy (Section D).
    • Make sure you highlight the timeline and company expectations.
    • Include how the company will administer the recordkeeping, notice to employees (Section J), and reporting/removal of COVID-19 exposure (Section H).
  2. You will be REQUIRED to maintain a roster of each employee’s vaccination status and must preserve “accetable proof of vaccination for each employee who is fully or partially vaccinated” (Section E). These records must be preserved while the ETS is in effect.
  3. Evaluate how you will be administering this new policy and put the new procedure into place.
    • How will you collect the required proof? Note: an employee is fully vaccinated TWO WEEKS after completing the full regimen of the authorized COVID-19 vaccine.
    • How will you track and store who provided proof versus planning on weekly tests?
    • How will you collect the weekly test for those who are unvaccinated?
    • Who will own this process? And who will be the backup?
    • Will you purchase a system that needs to be implemented?  Or do you have a system you can add this tracking to?
  4.  Get prepared to provide mandatory reporting (Section K) and availablity of records (Section L)