White House Outlines Incoming Vaccine & Testing Requirements for Companies with 100 or More Employees

November 04, 2021

Compliance Required Beginning January 4th


This morning, the Biden Administration released details on far reaching requirements surrounding mandatory vaccinations (or weekly testing) for private-industry covered employers with over 100 or more employees, beginning January 4th. The rule, which will soon be published in the Federal Register by the Occupational Safety and Health Administration (OSHA), is the second Emergency Temporary Standard (ETS) to be issued regarding COVID-19 workplace requirements (the first set of requirements were generally limited to the healthcare sector).


Topline takeaways from the ETS are below:

  • "Vaccinated" is defined as having received both shots of either the Moderna or Pfizer vaccine (2-shot regimen), OR one shot of the Johnson & Johnson (one-shot regimen) COVID-19 vaccine by January 4th.
  • For covered employees not fully vaccinated by January 4th, the employer is NOT required to pay for weekly testing, unless collective bargaining or similar agreements are in place. In addition to weekly testing, all covered employees that are not vaccinated must be masked while in the workplace.
  • Employers subject to the ETS are required to provide paid time off for employees to receive vaccinations, and for any sick time that is incurred due to side effects of receiving the vaccine. Any paid time off for vaccinations must be provided to the employee by December 5th.
  • Testing is required for all non-vaccinated covered employees who are in the workplace at least one time a week.
  • Providing additional clarity to the Executive Order requiring the ETS, the rule does not apply to employees who "do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.” 
  • The ETS does not apply to federal employees and federal contractors already covered under the Safer Federal Workforce Program. 

OSHA has issued a 3-page summary of the ETS, which provides their review and justification of the rule. Of note, the rule preempts any inconsistent state or local laws, including laws that ban or limit an employer's authority to require vaccination, masks or testing. OSHA will provide additional guidance on reporting back to the agency (employer required OSHA logs).


Looking Ahead & Next Steps


The ETS is expected to be challenged by opponents on two primary fronts. 43 Republican Senators have indicated they will introduce legislation utilizing the Congressional Review Act (CRA), the legislative vehicle used to overturn federally issued rules. President Biden is expected to veto any such Congressional attempt to nullify the ETS. Overturning a Presidential veto would require a 2/3s vote in both the House and Senate. 


Litigation is the other avenue that will almost certainly be used to challenge the ETS, with 24 Republican state attorneys general on record saying they will file suit. The Supreme Court has recently declined to hear two cases involving vaccine requirements, but may be inclined to consider a case of this scope. The state AGs plan to challenge the validity of the vaccine and testing requirement on a number of constitutional and legal grounds. 


Private companies and other legal organizations are also expected to bring legal challenges to the ETS. For some perspective, OSHA has issued nine ETS rules in its history. Of the nine issued, six were challenged, and of those six, only one remained fully in place.


IAM strongly encourages all member companies to review the ETS and its applicability to its employees and workforce with internal and outside legal counsel, as applicable. The information provided in this update should not be construed in any manner as legal advice, and is intended to be informational in nature only. We will continue to follow the ETS and report any changes or modifications as issued.


For more information or questions on the ETS, please contact Bryan Vickers (703-403-2882, bvickers@pacellp.com) with IAM's Government and Regulatory Affairs Team.