last updated – 11/21/2021

Vaccine Mandates & Executive Orders

On November 7th, a stay was issued from the U.S. Court of Appeals.

A 5th Circuit judge has placed a temporary stay on the COVID vaccine ETS. As of now, the stay by the 5th Circuit is the law of the land – at least until another circuit issues a contrary ruling.

The likelihood of conflicting rulings is high, considering the number of pending actions seeking an injunction of the ETS across the nation. Given this likelihood, legal scholars anticipate an appeal to either a multi-district litigation panel or directly to the U.S. Supreme Court for a final determination.

Employers with 100+ employees would be wise to continue planning their implementation of the ETS pending a final resolution of the stay.

READ ABOUT IT HERE


As part of his “Path out of the Pandemic” plan, President Biden issues executive orders mandating vaccines for federal employees and contractors, medicare and medicaid providers, and directs OSHA to issue Emergency Temporary Standard (ETS) for companies with 100+ employees.

OSHA’s Emergency Temporary Standard can be found HERE (490 Pages)

The White House summary of the ETS can be found here.

By no later than January 4, 2022, employers with 100 or more employees (measured companywide, not by location) will need to enforce one of the following: 

  • Require employees to get vaccinated against COVID-19
  • Require unvaccinated employees to produce evidence of a negative COVID-19 test each week
  • Remote employees not working in contact with others will likely be exempt from the ETS (unless they come into the workplace). 

This flexibility allows employers to choose how strictly they want to enforce a vaccine mandate. In other words, some employers may decide to make vaccination a condition of employment; others may only require negative COVID-19 tests.

COVID-19-Vaccination-and-Testing-ETS-Frequently-Asked-Questions-11.4.21

Affected Employers Must Develop, Implement And Enforce A Mandatory COVID-19 Vaccination Policy

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard. 

ETS Requirements

The ETS requires employers to:

  • Develop, implement and enforce a mandatory COVID-19 vaccination policy; or
  • Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.

Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status.

Weekly Testing Requirements

Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. 

Paid Leave

Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met.  

AdvanStaff HR advisors and counsel participated in a Department of Labor (DOL) webinar where several questions about the ETS were asked of senior OSHA counsel. Below is a summary of the points made during this webinar – many of which were compiled by Ulman Policy on behalf of the Coalition for Workplace Safety, a U.S. Chamber of Commerce business coalition:

With respect to the substance of the ETS:

  • The ETS will not supersede any existing DOT/transportation rules, as OSHA does not have primary safety and health jurisdiction over the transportation system.
  • OSHA and federal agencies will work to ensure the ETS is consistent with the vaccination mandates imposed on federal contractors.
  • The ETS testing/vaccination requirement will not extend to remote employees who are physically isolated from co-workers.
  • Employers will need to provide employees with PTO or allow employees to use existing PTO to obtain vaccinations and recover from vaccination side effects.
  • The 100-employee threshold for coverage applies to the company/employer, not just a single worksite.
  • The ETS will apply to the postal service/postal service employees (as they are considered private sector employees by OSHA).
  • The ETS will not impact employee collective bargaining.
  • The procedures for handling employees who refuse to vaccinate or test will not be addressed by the ETS.

A note of caution: until OSHA issues the ETS, any comments on what will or won’t be in it are subject to change. Anything written by OSHA will go through multiple layers of approval. If you believe you will be covered by the ETS, you should consult your AdvanStaff HR Specialist to make sure your company/clients are prepared for the issuance of the ETS.

Finally, Fisher Phillips asked that we send: 5-Step Plan for Employers After President Biden Announces Workplace Vaccine Mandates. Also, here is a summary from Wiley. 

This order mandates that all employees of federal contractors and subcontractors must be vaccinated. It delegates the authority to set the specific requirements of this mandate to the Federal Acquisition Regulatory Council and the various government agencies by October 15.

Read the Compliance BulletinSource

COVID-19-Workplace-Safety-Guidance-for-Federal-Contractor-and-Subcontractors-10.7.21

Health care workers must be vaccinated in most health care settings that receive Medicare or Medicaid reimbursement.

Affected Health Care Facilities Must Ensure Their Staff Is Fully Vaccinated by Jan. 4, 2022

On Nov. 4, 2021, the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation requiring COVID-19 vaccination of eligible staff at health care facilities that participate in the Medicare and Medicaid programs. CMS also issued a set of FAQs on the vaccination requirement. The emergency regulation is effective beginning Nov. 5, 2021.

COVID-19 Vaccination Requirement

These requirements apply to Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare health and safety standards, including hospitals, clinics and long-term care facilities.

Facilities covered by this regulation must establish a policy ensuring that all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment or other services by Dec. 6, 2021. All eligible staff must have received the necessary shots to be fully vaccinated—either two doses of Pfizer or Moderna or one dose of Johnson & Johnson—by Jan. 4, 2022.

The regulation provides for exemptions based on recognized medical conditions or religious beliefs. Facilities must develop a similar process or plan for permitting exemptions in alignment with federal law.

Comment Period

Stakeholders have 60 days to submit formal comments on the emergency regulation. However, since this is an emergency regulation, the requirements will go into effect immediately and before any additional response is provided on the comments by CMS. The comment period officially closes on Jan. 4, 2022. At that point, CMS will consider and respond to comments as a part of potential future rulemaking, if needed.

Important Dates

Nov. 5, 2021

Publication and effective date of rule requiring COVID-19 vaccines for health care workers.

Dec. 6, 2021

Deadline for health care facilities that participate in the Medicare and Medicaid programs to establish a policy requiring staff to be COVID-19 vaccinated.

Jan. 4, 2022

Deadline for eligible health care staff to be fully vaccinated against COVID-19.

Preparing for Vaccine Mandates

Preparing-for-Vaccine-Mandates-Infographic

OSHA’s COVID-19 Vaccination ETS – Employer Checklist

Preparing-for-OSHAs-COVID-19-Vaccination-ETS-Employer-Checklist-1

What is an OSHA Emergency Temporary Standard?

An ETS is different from other OSHA rulemakings in the following ways:

  • The ETS is effective upon its printing in the Federal Register – meaning that it goes into effect immediately – in this instance on December 5th, with the vaccine requirements going into effect on January 4, 2022.
  • There is no comment period on the ETS.
  • It is by statute a temporary rule – lasting only six months.
  • The standard for an ETS is a “grave danger” – meaning that the hazard being regulated must constitute a grave danger to employees. The term “grave danger” is not defined in the Occupational Safety and Health Act or in OSHA regulations.

Other key points:

  • The ETS does not require employers to provide or pay for tests. However, employers may be required to pay for testing because of other laws or collective bargaining agreements.
  • The ETS does require employers to pay for time off to get the vaccine or paid sick leave to deal with any negative effects of the vaccine.
  • All unvaccinated employees must be masked at all times in the workplace.
  • Compliance will be through record keeping requirements that are spelled out in the ETS.
  • All other requirements of the ETS (except the requirement for testing of unvaccinated employees) begin on December 5, 2021.

Following is a step-by-step action plan you can implement immediately to put yourself in the best position to comply with the expected ETS.

  1. Determine if you are required to follow the Workplace Vaccine Mandates. If your workplace is required to follow the mandate, then all record-keeping, storage, and reporting requirements will apply. Please see additional sections below additional compliance details associated with this program.

    You must adopt and implement a formal policy by no later than Dec 4th, 2021.

    If your workplace is *not required* to implement a program and you decide to voluntarily implement a vaccine requirement program for your employees, we recommend creating and communicating a formal a policy even though some of the mandated guidelines are not required.
  2. Adopt Procedures for Determining Employees’ Vaccination Status

    You should prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission has indicated that it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws. In most cases, the answer to that question alone may be all you really need.The ETS requires that you not only ask for vaccination status but collect proof of vaccination. In this case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered.

    To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. In lieu of collecting vaccination records, you can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.

    AdvanStaff HR offers a scalable, turnkey solution that gives managers the tools they need to comply with many of the provisions of the vaccine mandate.

    View AdvanStaff HR’s recommended solution HERE
  3. Develop a Plan for Handling Accommodation Requests

    For those employers that adopt a vaccine mandate, develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate.For a detailed discussion of this topic, please refer to An Employer’s 3-Step Guide to Responding to COVID-19 Vaccine Religious Objections.

    Download a sample vaccination policy template below

    Read about religious exemptions below.

    Download a sample religious exemption accept/rejection form below

  4. Have a Plan for Tracking Test Results

    For employers who allow individuals who are not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results. If regular employment-related testing is not covered by the employee’s health insurance and free testing is not feasible, you will need to review the applicable federal, state, and local employment laws to determine if you must pay for testing. Further, under the federal FLSA, employers must pay nonexempt employees for the time spent undergoing testing during the workday.

    View AdvanStaff HR’s recommended solution HERE
  5. Prepare for OSHA Complaints and Inspections

    As a reminder, the vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. Social distancing, masking, sanitizing, and other safety steps you may already be required to take under existing OSHA and CDC guidance, or state or local public health orders, remain in effect. Therefore, in addition to the requirements of the new ETS, OSHA likely will ask for your COVID-19 response plan and training records if it receives a complaint or conducts an in inspection concerning the vaccine mandate ETS. If not already in place, develop a COVID-19 policy and communicate its requirements to your employees. Train managers and supervisors on what to do and say if OSHA arrives for an inspection. This effort could save your company from paying significant fines.

OSHA COVID-19 ETS: Determining the Number of Employees

OSHA COVID-19 ETS Determination of Employee Vaccination Status

COVID-19 Vaccine and Testing ETS Paid Time Requirements

Employers of all sizes can use this all-in-one vaccination tracker to help in their COVID-19 prevention efforts. The tool provides a place to track employee vaccination statuses, a list of FAQs related to the OSHA vaccination and testing mandate and a library of downloadable resources.

Recordkeeping Requirements


AdvanStaff HR offers a vetted, scalable, compliant, easy to use COVID Navigator Program to assist employer/managers with COVID tracking.

We recommend the following solution.

  • A worksite manager guided system that:
    • all employees to self upload and declare status via a mobile app
    • Managers access a web portal for program management
    • tracks vaccine status for all employees,
    • tracks weekly testing status for unvaccinated employees,
    • tracks quarantine status for affected employees, and
    • tracks exemption status
    • provides optional daily health and symptoms checkins and included document management.
    • Employees update their records using the app or web portal.
    • Managers have top level overview via a dashboard, reports, and active notifications.

      This is a HIGHLY efficient platform designed and built specifically for this purpose.

      View AdvanStaff HR’s solution HERE.