OSHA has withdrawn Emergency Temporary Standard around Vaccine Mandates for Private Employers

[Update: In light of the Supreme Court ruling on January 13, 2022, OSHA is withdrawing the Emergency Temporary Standard (ETS) related to vaccination and testing policies for employers with more than 100 employees. For employers, this means that you have the flexibility to choose best practices to address COVID-19 concerns in the workplace. While the ETS has been withdrawn, the vaccine policy remains as a proposed permanent rule and can become permanent at some point in the future. Some states also have a state level OSHA plan, and each state will individually be responsible for their own next steps. For example, Minnesota has an OSHA state plan and has given notice that they will be suspending enforcement pending further developments.)


Private employers with 100 or more employees have until January 4, 2022 to ensure that all their employees are fully vaccinated or submit to weekly testing and mandatory mask mandates according to the recently released vaccine mandate from OSHA.  Mask mandate enforcement deadline is December 5, 2021.

While this is not an unemployment specific issue, this is an important issue that employers are grappling with and we want to provide you with some information on what the mandate covers.

What employers are covered by this OSHA Rule?

This rule applies to any private employer with 100 or more employees. It does not matter if your employees are distributed across multiple worksites or states.  The rule applies to private sector employees, including non-profits, private colleges, and private universities.  All employees count towards the 100-employee threshold, even part-time employees are included.  Independent contractors are not included when determining your official employee head count.

What do employers need to provide as far as time off for testing or vaccinations?

Starting on December 5, 2021, employers are required to provide up to 4 hours of paid time off for employees who are getting the vaccine. In addition, if needed, sick leave needs to be provided for the employees to recover from the potential side effects of the vaccine.

It is important to note that employers have the right to mandate vaccines for their employees without a testing option.  However, if a weekly testing option is offered as an alternative, employers are not required to pay for or provide COVID testing on a weekly basis. OSHA has stated that any FDA approved tests including PCR tests or rapid antigen tests will meet the requirements for employee testing.  Additionally, employers do not have to provide paid time off for testing.

How will OSHA enforce this new rule?

OSHA will mainly enforce this rule through complaints raised by employees.  Failure to comply with the OSHA rules may be subject to fines.  They can penalize employers up to $13,653 per serious violation.

What about the states that have recently issued legislation against COVID vaccines?

OSHA rules pre-empt existing state government rules with the exception of states that have their own OSHA- approved agreements.  There are currently 22 states that have a state-based OSHA agreement, and those states have 30 days to enact a rule that is at least as effective as the OSHA ruling.

How will the States Rule on Unemployment Cases?

Employers have the right to enforce the mandates with disciplinary actions up to and including termination. If an employee is terminated for failure to adhere to your vaccine policies and they apply for unemployment benefits, most states will review the facts of each case when making a ruling. In other words, there is no current legislation or interpreted regulation that would require the state to rule for or against the claimant.  We suspect that most cases will be considered misconduct and benefits denied; however, there should not be an assumption all cases will end with that result.  Additionally, four states (AZ, IA, MT, and TX) have recently enacted legislation that will allow benefits if an employee quits or is discharged for failing to comply with an employer’s vaccine mandate.  


This is a fluid situation with more information coming to light daily.  As we learn more about the OSHA ruling and how states will view vaccine cases, we will update you with that information.  If you have any questions about the OSHA ruling or how a state will adjudicate a specific case, please consult with your Client Relationship Manager.


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