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November 22 Update. Following a temporary halt on the rule by federal courts, on November 19 OSHA announced suspension of implementation and enforcement of the Emergency Temporary Standard (ETS) calling for employers with more than 100 employees to require employees to either be vaccinated or undergo weekly testing by January 4, 2022. The court ruling only applies to the ETS, not the rules in place for federal contractors.

The case challenging OSHA’s legal authority to create and enforce the ETS could drag on for months, and is anticipated to go before the Supreme Court, but the issues related to the temporary stay are likely to be resolved prior to the January 4 deadline. The legal community continues to advise employers to be prepared for a lifting of the temporary stay.

NACUBO will provide additional updates as they become available.

NACUBO policy team members discussed the federal vaccination rules during a Town Hall on November 10.

The U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) has announced a new emergency temporary standard (ETS or standard) to protect more than 84 million workers from the spread of COVID-19. Employers with 100 or more employees are required to develop, implement, and enforce a mandatory COVID-19 vaccination policy; alternately, they may adopt a policy requiring employees to elect to either get vaccinated or be regularly tested for COVID-19 and wear a face covering at work. 

The standard requires employers to provide paid time to staff to get vaccinated, and to allow for paid leave to recover from any side effects. 

ETS also requires employers to:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.

  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. In this circumstance, employers must remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week), or within seven days before returning to work (if the worker is away from the workplace for a week or longer).

  • Ensure that, in most circumstances, all unvaccinated employees wear a mask while in the workplace or when occupying a vehicle with another person for work purposes.

The ETS lists the wide variety of tests that comply with the standard. While employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements, the ETS does not require employers to pay for testing. Employers are also not required to pay for face coverings.

Previous guidance for employers explains the rules for accommodation of employee requests for exemptions from vaccination mandates due to religious beliefs.

Public Employees Included

In the 26 states and two territories with OSHA State Plans, the standard will also apply to public sector workers employed by state and local governments, including educators and school staff. The ETS states that these federal requirements “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.”

Under a separate rule, Centers for Medicare and Medicaid Services (CMS) will also be required to mandate vaccinations for workers and volunteers in most healthcare settings that receive Medicare or Medicaid reimbursement, including teaching hospitals.

OSHA is offering compliance assistance to help employers implement the standard, including a webinar, frequently asked questions and other compliance materials.

Federal Contractor Vaccination Mandate

Under Executive Order 14042, and as part of the White House’s COVID-19 mitigation plan,  federal agencies were directed to require both federal contractors and their subcontractors to comply with COVID-19 workplace safety guidance. Federal contracts valued over $250,000 must include provisions mandating vaccinations and other protocols for contractors’ and subcontractors’ employees, including student employees.

Guidance from the Safer Federal Workforce Task Force was updated on November 1 in the form of frequently asked questions. The compliance deadline for contractors has been changed from December 8 to January 4, 2022, to align with other federal vaccination mandate deadlines.

An issue brief prepared by the American Council on Education provides a framework for analyzing how the federal contractor rules may apply to your institution.

Streamlined Deadlines

Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose–either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson–by January 4, 2022. This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and help federal contractors implement their requirements on the same timeline as other employers in their industries. The newly released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.

NACUBO Town Hall

Join NACUBO policy team members during a Town Hall on November 10 for an overview of the federal requirements, analysis of how the federal contractor rules may apply to your institution, and a review of considerations for institutions of higher education.

You can find additional resources on federal employer and tax requirements related to COVID-19 here.


Mary Bachinger

Director, Tax Policy



Megan Schneider

Senior Director, Government Affairs


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