Late last year, OSHA issued an Emergency Temporary Standard (“ETS”) that requires companies with 100 or more employees to either mandate that employees be vaccinated or be routinely tested for COVID-19. The ETS was immediately embroiled in litigation, but it’s back in effect – at least for now. The United States Supreme Court is scheduled to hear oral arguments on Friday, January 7, 2022, to help it decide its fate. 

The original compliance dates of OSHA’s Emergency Temporary Standard were December 6, 2021 (for the majority of the ETS) and January 4, 2022 (for the vaccine or testing requirement). To account for the uncertainty created by the ETS litigation, OSHA extended the compliance dates. OSHA will wait until January 10, 2022, to issue citations for noncompliance with most of the requirements of the ETS, and until February 9, 2022, to issue citations for noncompliance with the vaccine or testing requirements. These extended compliance periods only apply if a company is exercising reasonable, good faith efforts to comply. With these dates rapidly approaching, companies should prepare now to comply with the ETS regardless of the upcoming Supreme Court review. 



The ETS applies to companies with 100 or more employees at any time after the ETS went into effect. The 100-employee headcount includes all full-time, part-time, temporary, or seasonal employees in the United States, even employees working remotely or off-site. The headcount includes all company employees, not just employees at one location. 

OSHA Applicability

Written Plan

To comply with the ETS, companies must implement a written policy that (1) mandates all employees be vaccinated, with exceptions for medical and religious reasons, or (2) makes vaccinations optional but requires unvaccinated employees to wear face coverings in the workplace and be tested weekly for COVID-19 (or within seven days of entering a company workplace). 

Paid Time Off

Companies must provide up to four hours of paid time off to receive each primary dose of the vaccine during work hours, and a reasonable amount of paid leave to recover from side effects of the vaccine. Companies can require employees to use existing leave to recover from side effects of the vaccine.

Proof of Vaccination

Employees must provide proof of vaccination status, such as a vaccine card or medical records. Employees may only self-attest to their vaccination status if they are unable to provide acceptable proof. Employees that self-attest must certify their vaccination status and that they are unable to provide proof and acknowledge that falsifying their vaccination status could result in criminal penalties. 


If the company permits routine testing, employees must take tests authorized by the FDA and provide documentation of the result to the company. Tests cannot be both self-administered and self-read (such as over-the-counter testing kits) unless the procedures are observed by the company or an authorized telehealth proctor. Companies are not required to pay for the cost of weekly testing.

Face Coverings

Unvaccinated employees must wear face coverings in the workplace. Companies are not required to pay for the cost of face coverings.

Reporting Information

If requested, companies must inform an employee of the total number of fully vaccinated employees and the total number of employees at a workplace by the end of the next business day. If requested, companies must also provide an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee by the end of the next business day.


  • November 5 – OSHA released the ETS for public review
  • November 6 – The U.S. Court of Appeals for the Fifth Circuit “stayed” the ETS, putting it on hold
  • November 16 – The Judicial Panel of Multidistrict Litigation consolidated all the ETS cases from across the country and the  U.S. Court of Appeals for the Sixth Circuit was selected to decide the consolidated ETS challengesDecember 17 – The U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay on the ETS, which means it is back in effect
  • January 7 – The U.S. Supreme Court will hear oral arguments on the ETS
  • January 10 – OSHA will begin issuing citations for noncompliance with the ETS (except the testing or vaccine requirements)
  • February 9 – OSHA will begin issuing citations for noncompliance with the testing or vaccine requirements of the ETS


SixFifty helps companies navigate the COVID-19 pandemic and the new way we work. We’re here to assist you and your company in complying with the ETS. Our Emergency Temporary Standard toolset helps companies assess how they will comply with the ETS as well as create a written COVID-19 prevention plan, religious or medical vaccine exemption forms, vaccine self-attestation forms, and vaccine roster.

If you are ready to get started or have any questions, schedule a demo with SixFifty today!

Adrienne Jack

Written by Adrienne Jack

Adrienne Jack is a Vice President of Legal Product at SixFifty, focusing on employment law. She’s enjoyed riding the roller coaster of employment law the past two years. With remote working as the new normal, companies have employees across the nation and more employment laws and issues to navigate than ever before. As employment law changes at an unparalleled rate...

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