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January 14 Update. On January 13, the Supreme Court ruled against the OSHA emergency temporary standard requirement for employers with 100 employees or more, finding that administration did not have the authority to require businesses to either require vaccinations or test workers for COVID-19.  The Court upheld the Centers for Medicare and Medicaid Services rule pertaining to staff working for Medicare-or Medicaid-certified healthcare providers. The vaccine requirements for federal contractors were not addressed in this ruling and are still being litigated.

December 20 Update. Following a previous judicial halt of the Emergency Temporary Standard, the U.S. Court of Appeals for the Sixth Circuit has reinstated the requirement. OSHA subsequently announced that it will not issue citations for noncompliance before January 10, 2022. OSHA officials also stated that the agency will exercise discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

December 7 Update. On December 7, a federal judge in Georgia issued a preliminary injunction against the vaccination requirement for federal contractors. The mandate, scheduled to take effect on January 4, is now paused as the court examines the legality of the requirement.

NACUBO will provide additional updates as they become available.

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



Liz Clark

Vice President, Policy and Research


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