OSHA and CMS Issue Vaccine Mandate Requirements

November 5, 2021

UPDATE: On November 6, the Fifth Circuit Court of Appeals stayed the OSHA ETS discussed below on an emergency basis pending expedited briefing. The Biden Administration submitted its brief yesterday. The petitioners are due to respond today. Further action from the Fifth Circuit could come this week. Other challenges have been filed in various courts around the country. As the timelines in the ETS are short and penalties for non-compliance can be significant, we recommend that employers covered by the ETS continue their work to understand its requirements and prepare to implement immediately if the ETS ultimately goes into effect. 


Yesterday, OSHA and CMS announced requirements that certain employers must mandate that their employees be vaccinated against COVID-19. 

The OSHA Emergency Temporary Standard (“ETS”) governs employers with 100 or more employees across all U.S. locations.  Full and part time employees (but not contractors) must be counted to determine whether an employer is covered by the ETS.  Related entities must consider the employees of all entities to determine coverage if the related entities handle safety as a single entity.   Employees who work entirely remotely or exclusively outside are counted to determine whether the employer is covered by the ETS, but these employees are not required to be vaccinated or subject to the testing/masking required by the ETS. 

By December 5, 2021, employers covered by the ETS must:

  • Determine the COVID-19 vaccination status of its employees by receiving proof of vaccination from employees
  • Prepare and implement a written vaccination policy that requires all employees to be fully vaccinated, subject to legally required accommodations for those with medical/disability and sincerely held religious reasons to not be vaccinated.  An employer may give employees the option to be tested every seven days and to generally wear a face covering indoors at the workplace instead of being vaccinated, but employers are not required to offer the testing/masking option.  Compliance through testing, if an employer permits it as an alternative to vaccination, must occur by January 4, 2022.  (An employee entitled to a medical or religious accommodations must still be subject to requirements for testing/masking assuming the employee does not need an accommodation to the testing/masking requirement.) 
    • Employers cannot require tests of employees who have tested positive for COVID-19 for 90 days after the positive test.
  •  Employers must inform employees – in languages and at literacy levels appropriate to the employees - of:
    • The ETS requirements and employer’s policy
    • “Key Things to Know About COVID-19 Vaccines," available at 
    • Employers cannot take action against employees for reporting work-related illnesses and injuries or from exercising rights under the OSH Act
    • Criminal penalties for supplying false information/documents
  • Employees must be required to immediately notify the employer of a positive COVID-19 test, and the employee must be excluded from the workplace until the employee receives a negative test result, a return to work recommendation from a health care provider, or meets criteria in CDC guidance.
  • Employers must report to OSHA work-related COVID-19 deaths (within 8 hours) and inpatient hospitalizations (within 24 hours).

Proof of vaccination and test results must be maintained by covered employers and must be kept confidential.

Vaccination is available free of charge to employees, but employers must pay for their time to be vaccinated and tested (up to four hours, including travel, for each dose) and must provide paid leave to employees for recovery from vaccine side effects.  Under Minnesota law, employers must pay for tests it requires employees to do.

OSHA is requesting comments on the ETS and is considering whether to make it a final standard and whether to expand the requirements to smaller employers.   The ETS itself does not govern Minnesota employers, because Minnesota has a federally approved plan that includes state and local government employees as well as private employees.  Minnesota OSHA is required within the next month to adopt an identical ETS or something that is “at least as effective.”

CMS has issued an interim final rule, subject to comment, that requires facilities that participate in Medicare and Medicaid to mandate that employees receive a first vaccine dose by December 5, 2021 and be fully vaccinated by January 4, 2022.  Covered facilities include ambulatory surgical centers, hospice facilities, programs of all-Inclusive care for the elderly, long term care facilities, hospitals, psychiatric residential treatment facilities, intermediate care facilities for persons with intellectual disabilities, home health care agencies, outpatient rehab facilities, critical access hospitals, clinics, community mental health centers, rural health clinics/federally qualified health centers, home infusion therapy suppliers, and end-stage renal disease facilities.

Other private employers and Minnesota, federal, and county governments have issued vaccine mandates that cover certain employees and contractors as well.

For more information and detail regarding the OSHA and CMS requirements, see:

For information regarding the handling of accommodation requests, you can view the replay from our Vaccination Mandates, Concerns, and Accomodations webinar we held on October 12, 2021 (before the ETS was issued). The replay passcode is: ENQ4t$gt You can also view an updated presentation from November 4, 2021 on this topic. 

Please reach out to our Employment Law team members with any questions you may have.