Vaccine & Testing Requirement Remains in Effect

While the U.S. Supreme Court hears a challenge to the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) on employee vaccinations/testing, the ETS remains in effect – at least for now. Companies with 100 or more employees who aren’t taking steps to comply with the ETS’ vaccination and testing requirements could face fines, and possibly even criminal penalties.

While some states may administer their own federally approved OSHA rules and enforcement, the federal ETS is nonetheless in effect. Despite a court “stay” or delay of the ETS issued on Nov. 7, 2021, the U.S. Circuit Court for the Sixth District reinstated the rule on Dec. 17, 2021. The ETS requires all employers with 100 staff members or more to have everyone vaccinated against COVID-19 by Jan. 4. Any remaining unvaccinated staff must produce negative test results on a weekly basis. OSHA has said it will defer issuing citations prior to Jan.10 for noncompliance with the ETS’s provisions – provided businesses with 100 or more employees are “exercising reasonable, good faith efforts to come into compliance with the standard. Waiting until the Supreme Court issues its ETS ruling on Feb. 9 could lead to citations and fines. Fines for “serious” violations of the ETS are $13,653 each. A “willful violation” could draw a penalty of $136,532 per violation.

ETS vaccine and testing requirements: Employers meeting the 100-employee threshold must have documentation to confirm employee vaccinations. These include vaccination cards issued by healthcare authorities or “letters of attestation” from medical or other experts confirming the person is fully vaccinated. So long as employers exercise due diligence, OSHA won’t hold them accountable for fraudulent documents that appear genuine. Unvaccinated employees must document a negative COVID test every seven days. They also must wear a mask anytime they’re in contact with other employees, aside from meal breaks and a few other exceptions. The ETS permits but doesn’t require employers to pay for COVID testing. However, state or collective-bargaining agreements (CBAs) could in fact require employees to fund testing.


Paid leave to get vaccinated: The ETS requires up to four hours of paid leave for employees to get their vaccinations. As for the side effects of COVID vaccines, OSHA requires “a reasonable amount of time” for paid sick leave, up to two days for a primary dose, excluding booster shots. Again, state rules or CBAs could require additional paid leave time. Employers should check for rules that apply in their jurisdictions.


Learn how membership can help you succeed.
Click the image to see how DLI can help you.

Join Now

Follow Us




Talk to a real person about how DLI can help your business.