What do the mandatory COVID-19 vaccination requirements under the Path Out of the Pandemic plan mean for employers?

October 13, 2021
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Editor's Note: On Oct. 12, 2021, the Occupational Safety and Health Administration (OSHA) sent a draft of the emergency temporary standard (ETS) requiring vaccination or weekly testing of workers for employers with 100 or more employees to the White House’s regulatory office for approval. The ETS is expected to be reviewed and approved by the White House very quickly and we will update this information once the ETS is approved and released.


On Sept. 9, 2021, President Biden announced his Path Out of the Pandemic plan, which includes mandatory COVID-19 vaccination for certain employees in the private sector, the federal government, and health care settings. The plan also requires covered private employers to give workers paid time off to obtain the vaccination and to recover from any side effects due to the vaccination.

Additionally, the plan calls on—but does not require—large entertainment venues to require proof of vaccination or a negative test before entry.

This Q&A will be updated as more guidance is released.

Private employers (businesses) with 100 or more employees

President Biden's plan directs the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) requiring vaccination or weekly COVID-19 testing of all employees, absent disability or religious accommodations. OSHA officials have stated that employers do not have to offer the weekly testing as an option and may require all employees to be vaccinated, subject to accommodations.

  • Effective date: OSHA has stated the ETS will be released "in a matter of weeks." For states without their own OSHA state plan, an immediate effective date upon release of the ETS is possible. State plans will likely be given a time frame in which to come into compliance, possibly as little as 15-30 days.  
  • Expected challenges: The governors of several states have indicated they will challenge the mandatory vaccinations for the private sector, so it is possible some or all of the new requirements may be delayed until legal challenges are resolved. Employers should not assume their obligations will be lifted, however, and should prepare now.
  • Employee threshold calculation: Guidance is expected within the ETS as to how employees will be counted (i.e., at one location, total organization population, joint-employer implications, parent company versus subsidiaries, etc.). Officials have suggested that the 100 employees will be based on total organization headcount.
  • Testing: Who pays for the alternative weekly testing is unclear. Most group insurance must currently pay for suspected infection or exposure testing, but routine testing is not yet addressed. Some states also currently require any required medical tests to be paid by the employer.
  • Paid time off: The ETS will include requirements to provide paid time off to covered employees to get vaccinated and recover from any side effects. Whether current PTO may be used for this is unclear.
  • Fines: Employers who do not comply with the ETS could face OSHA citations and penalties of up to $14,000 per violation.
  • Record Keeping: If retention of proof of vaccination and testing is required, OSHA has substantial record-keeping requirements. Employers should start to prepare to track and retain these documents.
  • Early adoption: Employers are encouraged to begin adopting the mandates before the release of the regulations.
To start preparing for the new requirements, see How to Prepare for OSHA's COVID-19 Vaccination Emergency Temporary Standard.

Federal employees

The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees applies to employees of the executive branch of the federal government. Employees in the judicial and legislative branches are not covered by the order. The Safer Federal Workforce Taskforce has issued guidance on the vaccination requirement for federal agencies.

  • Effective date: Federal employees need to be fully vaccinated by Nov. 22, 2021. This means employees will need to receive their last dose of their vaccine no later than Nov. 8, 2021, to meet the Nov. 22, 2021, deadline to be fully vaccinated. Federal employees hired after Nov. 22. 2021, will need to be fully vaccinated prior to their start date.
  • Covered employee: The term "employee" means an employee as defined in 5 U.S.C. 2105. As an independent agency in the executive branch, the U.S. Postal Service is exempt from executive orders. However, the Postal Service will be covered under OSHA's ETS requiring vaccination for employers with 100 or more employees.
  • Remote workers: All covered employees without a legally required exception are required to be vaccinated regardless of their work location. An employee who is teleworking or working remotely is not excused from the vaccination requirement in the event the employee needs to interact with the public or is recalled to the workplace.
  • Documentation: Covered federal agencies must collect official documentation of vaccination status from employees that includes the type of vaccine administered, the date(s) of administration and the name of the health care professional or clinic site administering the vaccine. Employees must certify under penalty of perjury that the documentation they are submitting is true and correct. Digital copies of the records, including photographs or scanned images, are acceptable.

Federal contractors

The Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors applies to new, extended, newly optioned or renewed contracts (or contract-like instruments) entered into on or after Oct. 15, 2021, and whose value exceeds $250,000.

The Safer Federal Workforce Task Force issued guidance on implementation on Sept. 24, 2021, including a requirement for employees working on or in connection with a covered federal contract to be vaccinated no later than Dec. 8, 2021.

These protocols will apply to all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces who are not working on a federal government contract or contract-like instrument.

The requirements in the order apply to subcontractors at all tiers, except for subcontracts solely for the provision of products. The prime contractor must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products.

Covered contractors must also ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace, as discussed in the guidance.

Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

  • COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation.
  • Compliance by individuals, including covered contractor employees and visitors, with the guidance related to masking and physical distancing while in covered contractor workplaces.
  • Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces
Specific requirements include the following:
  • Effective dates:
    • Covered contractor employees must be fully vaccinated no later than Dec. 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.
    • On Sept. 30, 2021, the Federal Acquisition Regulation Council provided clause language to include in covered federal contracts, specifying that the contractor will comply with all guidance related to the order.
    • All contracts awarded on or after Nov. 14, 2021 must have the clause incorporated into the contract.
    • Any contract solicitations between Oct. 15 and Nov. 14, 2021 must include the clause.
    • Any contract awarded between Oct. 15 and Nov. 14, 2021 whose solicitation was issued prior to Oct. 15 is not required to include the clause, but agencies are encouraged to do so.
    • Any contract pre-dating Oct. 15, 2021 will need to incorporate the clause if and when an option is exercised or an extension is made.
    • Should a federal agency have an urgent, mission-critical need for a contractor to have employees begin work on a covered contract or at a covered workplace before becoming fully vaccinated, the agency head may approve an exception for employees to be vaccinated within 60 days of beginning work. 
  • Covered contracts: Specifics can be found in the order, under Section 5, Applicability.
  • Covered employee: Any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.
    • Remote workers: An individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination, even if the employee never works at either a covered contractor workplace or a federal workplace during the performance of the contract. An employee's residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements related to masking and physical distancing.
  • Proof of vaccination: The covered contractor must review its covered employees' documentation to prove vaccination status. Covered contractors must require covered contractor employees to show or provide their employer with one of the following documents:
    • A copy of the record of immunization from a health care provider or pharmacy.
    • A copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r).
    • A copy of medical records documenting the vaccination.
    • A copy of immunization records from a public health or state immunization information system.
    • A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
  • Covered contractors may allow covered contractor employees to show or provide to their employer a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record.

  • COVID-19 coordinator(s): The designated individual (or individuals) must ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces, including by:
    • Communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means.
    • Posting signage at covered contractor workplaces that sets forth the safety protocols in a readily understandable manner.
    • Ensuring that covered contractor employees comply with the requirements in the guidance related to the showing or provision of proper vaccination documentation.
  • OSHA ETS: Many contractors will also be covered under the OSHA ETS.
  • Prior to contractor employees being subject to a contractual requirement to be vaccinated, onsite contractor employees must attest to their vaccination status using the Certification of Vaccination form.

Health care workers

The Path Out of the Pandemic plan also requires health care workers at Medicare and Medicaid participating hospitals and other health care settings to be vaccinated.

  • Effective date: The Centers for Medicare & Medicaid Services (CMS) is developing an interim final rule with comment period that will be issued in October, which will include an effective date for compliance.
  • Covered employees: These requirements apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings—including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care, as a condition for participating in Medicare and Medicaid programs.
  • OSHA ETS: Many health care-related employers will also be covered under the OSHA ETS.

Large entertainment venues

While not required, employers of sports arenas, concert halls, and other venues where large groups may gather are being asked to safeguard their patrons by requiring event attendees to show proof of vaccination or a recent negative COVID-19 test before entering the venue. Further guidance would be appreciated on how owners and employers might implement this task. 


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Vaccine Mandate for Employers with 100+ Employees

President Joe Biden announced a series of proposals to combat the COVID-19 pandemic more aggressively, including plans for a new rule requiring employers with 100 or more employees to mandate that their workers be vaccinated or undergo weekly testing.

President Joe Biden announced a series of proposals to combat the COVID-19 pandemic more aggressively, including plans for a new rule requiring employers with 100 or more employees to mandate that their workers be vaccinated or undergo weekly testing.

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