News and Insights

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Written by: John A. Conley, Aaron E. Kacer and Lauren A. Crawford

On Friday, December 17, 2021, a federal circuit court of appeals lifted a stay banning implementation and enforcement of the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard on COVID-19 vaccination and testing for employees of employers with at least 100 employees (“OSHA Rule”).[1]  The OSHA Rule, also known as the vaccine-or-testing mandate, covers approximately 80 million workers in the United States. 

What does the OSHA Rule require?

Generally, for employers with at least 100 employees (“Large Employers”), the OSHA Rule requires face covering requirements, a written policy, collection of proof of vaccination, creation of a vaccination status records, removal of COVID-19 positive or untested employees from the workplace, maintenance of employee medical records, and certain employee communications about the employer’s policies and vaccine information from the Centers for Disease Control and Prevention.  

More specifically, the OSHA Rule requires all employees of Large Employers to be fully vaccinated or submit weekly COVID-19 testing and wear a face mask while in the workplace.  Additionally, the employer must:

  • Establish, implement, and enforce a written policy that either (1) requires mandatory vaccinations, or (2) allows employees to choose either to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering. 
  • Determine the vaccination status of each employee.  In instances where an employee is unable to produce acceptable proof of vaccination, a signed and dated statement by the employee is acceptable proof of vaccination.
  • Keep records of employee vaccination status in a file separate from the employee’s personnel file.
  • Provide a reasonable amount of time to each employee for each (or only) vaccine dose, including (1) up to 4 hours paid time off, including travel time, at the employee’s regular rate, and (2) reasonable paid sick leave to recover from vaccine-related side effects.
  • Inform each employee about the OSHA Rule and the employer’s policy.
  • Report to OSHA each work-related COVID-19 fatality within 8 hours of the employer learning about the fatality, and inpatient hospitalization within 24 hours of the employer learning about the inpatient patient hospitalization.
  • Require employee notification of a positive COVID-19 test or diagnosis.
  • Ensure that, for employees who are not fully vaccinated, employees submit to and report COVID-19 testing at least once every 7 days and provide documentation of the most recent COVID-19 test result to the employer no later than the seventh day following the date on which the employee last provided a test result.  Unvaccinated employees must wear a face covering indoors and when occupying a work vehicle with another employee.

Are there any exemptions or exceptions to the OSHA Rule?

Yes.  The OSHA Rule has specific exemptions for certain types of employers and employees.  Specifically, the following are exempt from the OSHA Rule:

  • Workplaces covered under the Safer Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
  • Workplaces covered under the Safer Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors;
  • Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS;
  • Employees who telework;
  • Employees who do not report to a workplace where other people are present; and
  • Employees who work exclusively outside.

Exemptions are also available for employees for whom a vaccine is medically contraindicated, who require a delay in vaccination, or for those sincerely held religious beliefs or disabilities. 

Which employers are “covered employers” under the OSHA Rule?

The OSHA Rule applies to employers with a total of 100 or more employees at any time the OSHA Rule is in effect.  Further, the OSHA Rule applies to healthcare workers in healthcare settings who are not covered by OSHA’s Healthcare Emergency Temporary Standard (“Healthcare ETS”).[2]  If the Healthcare ETS no longer applies, workers previously covered by the Healthcare ETS who remain unvaccinated would be subject to the OSHA Rule.

Private Medical Practices:

The OSHA Rule does not apply to private medical practices with fewer than 100 employees.  However, private medical practices with fewer than 100 employees may still be subject to the Healthcare ETS.[3]

What should I do if I am a “Covered Employer”?

Businesses with 100 or more employees should determine the COVID-19 vaccination status of their employees and develop a “vaccine-or-test” policy.  OSHA announced, however, that it will not issue citations for noncompliance until January 10, 2022.  OSHA stated it will exercise its discretion and not issue citations for noncompliance with testing requirements before February 9, 2022, if an employer is exercising reasonable, good faith efforts to comply.

Will there be any more legal challenges to the OSHA Rule that would affect its implementation?

Yes.  Multiple parties, including nearly 30 states, have filed emergency motions with the United States Supreme Court to block the OSHA Rule.  In its opinion lifting the stay on the OSHA Rule, the Sixth Circuit Court of Appeals noted that OSHA “must be able to respond to dangers as they evolve.”[4] 

Emergency appeals, including the request to stay a federal circuit court of appeals’ decision, go directly to the Justice assigned to the particular circuit.  Justice Brett Kavanaugh is assigned to the Sixth Circuit.  Justice Kavanaugh may decide the motions on his own, or he may elect to distribute to the full court for consideration.

Stay tuned for additional developments and updates on federal vaccine mandates.  If you have any questions about COVID-19 employment-related issues, please contact John Conley. 


[1]  In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir. Dec. 17, 2021).

[2]  See OSHA’S COVID-19 Emergency Temporary Standard: What Employers Need to Know, available here, released September 2021.

[3]  Id.

[4]  See supra, fn.1.