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OSHA Releases ETS on COVID Vaccination Mandate for Private Employers
By Burnham Compliance
The White House has announced that the Occupational Health and Safety Administration (OSHA) has published the highly anticipated Emergency Temporary Standard (ETS) on the COVID vaccine mandate on Thursday, November 4, 2021. A summary of the ETS from OSHA is available here and their FAQs here.
OHSA has stated that while the ETS takes effect immediately, they will seek public comment on it before the final standard is published in the Federal Register and the ETS becomes official, which is anticipated to be November 5, 2022. The ETS requires affected employers to comply with most provisions by December 5, 2021, and with its testing requirements by January 4, 2022 .
In addition, those states with state-specific OSHA plans may have additional time to adopt the ETS or to announce an alternative. However, OSHA has stated that this ETS will preempt any state or local requirements. Notwithstanding, several states and organizations have already stated their intention to challenge the ETS and we expect to see these formal challenges filed as soon as possible.
The following is a brief analysis of the OSHA guidance, courtesy of Zywave, Inc.


Affected employers include private employers with 100 or more employees (firm- or company-wide count). The ETS requires these 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 subject to the ETS must also determine the vaccination status of each employee, obtain acceptable proof of vaccination, and keep a roster of each employee’s vaccinations status.
The requirements of the ETS do not apply to:
  • Employees who do not work with other individuals present;
  • Employees when they are working from home;
  • Employees who work exclusively outdoors;
  • Those covered under the federal contractor and subcontractor ETS;
  • Those covered by the health care ETS, also released on November 4th;
  • Employers that have fewer than 100 employees; and
  • Public employers in states without state OSHA plans.


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.


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.


We are currently working through the ETS and plan to provide additional information and analysis as soon as possible. We also plan to be offering a webinar presentation to discuss the ETS in the coming days.

In the meantime, please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.

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