OSHA Vaccine Guidance

OSHA Vaccine Guidance

The much anticipated OSHA guidance addressing vaccine protocols applicable to employers employing 100 or more employees has just been released.

As a reminder, on September 9, 2021, President Biden issued his Path out of the Pandemic guidance. Part of that guidance directed OSHA to issue emergency temporary standards requiring private sector employers employing 100 or more employees to mandate vaccine status or require weekly testing. According to the just released guidance, in determining employer count, all US full and part-time employees are counted (separate rules apply to federal contractors and many health care employers, see October 2021 Benefit Beat article). Independent contractors are not counted.

While the OSHA ETS does not apply to state and local governments, be aware that many states have their own OSHA laws that are at least as comprehensive as the federal OSHA law. These state OSHA laws regulate state and local governments.

The guidance becomes effective November 5, 2021. Individuals have 60 days to become fully vaccinated or begin submitting to regular testing. Effectively, this means January 4, 2022. Beginning December 5, 2021, time off must be available to receive the vaccine.

Whether the employer pursues a vaccine mandate or a vaccine or test protocol, the following conditions apply.

Time off requirement

The employer is required to provide up to 4 hours of paid leave for each dose of the vaccine. Further the employer is to make reasonable time available for any side effects that might arise from the vaccine. There is no specific duration required for this time off. The individual can be required to use available PTO but cannot be required to go into a time off deficit.


There are three exceptions to a mandatory vaccine. They are:

  • Receiving the vaccine is medically contraindicated.
  • Medical necessity requires delay in receiving the vaccine.
  • A disability or religious exemption consistent with the ADA and Title VII.

The employer must maintain records of vaccine status. There are many ways that the employee can provide proof of vaccine status, either in hard copy or digitally. The employer must maintain a copy in a confidential medical file.


The individual must submit to weekly testing and wear a face covering at all times while in the workplace or in a vehicle with coworkers. If the individual is not regularly in the office, the individual must have proof of a COVID test within 7 days prior to entering the office.

If the employer offers a testing option, the individual can be required to pay for the testing unless another law or contractual obligation requires the employer to pay for the testing.

Employer policy

The employer must communicate to employees its vaccine protocol. The policy must be written in a language and a literacy level that can be understood by the employee.

The policy must include:

  • Requirements for COVID-19 vaccination;
  • Applicable exclusions from the written policy (e.g., reasonable accommodations for workers with disabilities or sincerely held religious beliefs);
  • Information on determining an employee’s vaccination status and how this information will be collected;
  • Paid time and sick leave for vaccination purposes;
  • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace; and
  • Disciplinary action for employees who do not abide by the policy.

Employers should work closely with their legal and employment counsel to address their responsibilities. See additional information from OSHA below.

OSHA COVID-19 Vaccination and Testing ETS website

COVID-19 Vaccination and Testing ETS summary

COVID-19 Vaccination and Testing ETS fact sheet

COVID-19 Vaccination and Testing ETS FAQs

OSHA National News Release

The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. This information is provided as general guidance and may be affected by changes in law or regulation. This information is not intended to replace or substitute for accounting or other professional advice. You must consult your own attorney or tax advisor for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

OSHA Vaccine Guidancehttps://www.cbiz.com/Portals/0/Images/OSHA Vaccine Guidance.jpg?ver=HiRnlvkEu9vl5qKw8q2vmA%3d%3dThe much anticipated OSHA guidance addressing vaccine protocols applicable to employers employing 100 or more employees has just been released.2021-11-07T20:00:00-05:00The much anticipated OSHA guidance addressing vaccine protocols applicable to employers employing 100 or more employees has just been released.Regulatory, Compliance, & LegislativeEmployee Benefits ComplianceNo