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Top 5 questions on OSHA’s COVID vaccine mandate guidelines

On November 5, 2021, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued long-awaited COVID-19 vaccine guidance for private employers with 100 or more employees in response to President Biden’s “Path out of the Pandemic” action plan announced in September.  

The guidance was issued via an Emergency Temporary Standard (“ETS”) requiring employers to develop, implement, and enforce a mandatory vaccination policy or an alternative policy requiring COVID-19 testing and face coverings for unvaccinated employees. If an alternative policy is adopted, employees are permitted to choose between vaccination or weekly testing and wearing a face covering.

The ETS provides guidance on:

  • COVID-19 vaccine requirements and exemptions
  • Proof and tracking of employee vaccination status
  • Paid leave for employees to receive the COVID-19 vaccine and recover from any side effects
  • Testing requirements for unvaccinated workers
  • Notification requirements for positive COVID-19 tests
  • Face covering requirements and exemptions for unvaccinated employees
  • Communicating COVID-19 policy information to employees
  • Reporting COVID-19 fatalities and hospitalizations to OSHA


OSHA suspended enforcement of the mandate after a federal appeals court upheld a stay by the U.S. Court of Appeals for the Fifth Circuit. In a statement on its website, the agency said, “The court ordered that OSHA 'take no steps to implement or enforce' the ETS 'until further court order.' While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

While we wait to learn the ultimate fate of the mandate, Alight is recommending that employers seek to understand the various provisions of the ETS. Here’s our guidance on the most asked questions about the OSHA COVID vaccine mandate guidelines:  

  1. Do I need to know the COVID-19 vaccination status of my employees by December 6 or is a “good faith” effort acceptable? 

    The OSHA guidelines don’t appear to require employers to verify vaccination status of their entire workforce by December 6. However, we recommend employers make a good faith effort and begin soliciting and tracking employee vaccination status as soon as possible. Employees are considered unvaccinated until they provide proof of vaccination.
  2. How does the Fifth Circuit Court of Appeals stay impact the effective date of the OSHA guidance?  

    Regardless of the stay, we recommend employers start working toward compliance with the mandate. The legal landscape may change between now and when the regulations take effect. If you wait to act, you could be caught off guard with a short implementation timeline. 
  3. How should I handle the vaccination status of employees that generally work from home, but may come to a workplace and/or visit a client site occasionally? 

    Employers should consider tracking the vaccination status of all employees, including those that normally work from home (WFH) but report to a workplace intermittently. Unvaccinated WFH employees must provide documentation of a negative COVID test taken no more than 7 days prior to coming into the workplace or visiting a client site. This requirement applies to all unvaccinated employees, including those with medical and religious exceptions, and must be repeated each time they plan to visit if 7 or more days have passed since their last test.
  4. Do employers need to provide unvaccinated employees with paid time off for weekly COVID-19 testing? 

    Employers can require employees to undergo weekly COVID-19 testing on their own time. They are only required to provide paid time off for employees to be vaccinated and to recover from the side effects of vaccination.  
  5. Can rapid self-tests be used? How are the documentation requirements satisfied for a rapid self-test? 

    Rapid self-tests can be used but cannot be self-administered and self-read unless observed by the employer or a telehealth proctor. If an independent proctor observes the process, they should provide documentation that includes the following: 
    - Data identifying the worker (i.e. full name plus at least one other identifier such as birth date) 
    - Specimen collection date
    - Type of test
    - Entity issuing the test result (i.e., laboratory, healthcare entity)
    - Test result


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