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Summary of Key Points of Vaccine Mandate for Employers with 100 or More Employees

Businesses covered:

  • Businesses with 100 or more employees company-wide at any time the measure is in effect (if employee count later drops to under 100, employer is still covered).
  • Count employees who are temporary, work part-time, and those who do not report to the office (including those who work from home).
  • Do not count independent contractors or employees of a staffing agency.

Employees Covered:

  • All employees of covered employers, whether full-time, part-time, or temporary.
  • Exceptions: ETS does not apply to any employee who:
    • Does not report to a workplace where coworkers or customers are present
    • Works from home
    • Works exclusively outdoors


  • By December 5, 2021, employers must adopt a compliance program in writing, which outlines policies that comply with the ETS.
  • By January 4, employers must implement one of the following programs:
    • Hard mandate: require all employees to get vaccinated
      • Exemptions: Employers that implement hard mandate must allow exemptions for employees that show:
        • COVID-19 vaccine is medically contraindicated
        • Medical necessity requires delay in vaccination
        • Are entitled to reasonable accommodation due to disability, or sincerely-held religious belief
      • Soft mandate: allow employees to choose either:
        • Get vaccinated
        • Get weekly COVID-19 test and wear face covering at work
          • Exemptions: Employers must also provide reasonable accommodation to employees who object to testing or wearing a face covering due to due to disability, or sincerely-held religious belief
  • Maintain records of employee vaccination status.
  • Maintain records of employee testing results.
  • Ensure each employee who is not fully vaccinated wears a mask when indoors.
  • Provide each employee with certain information about the ETS requirements, vaccine efficacy, and employment protections.
  • Report to OSHA work-related COVID-19 fatalities and inpatient hospitalizations.

Vaccination Support:

  • Employer must provide employees up to 4 hours of paid time off during work hours to get vaccinated—at employee’s regular rate of pay.
    • Includes time spent travelling to and from vaccination site, filling out paperwork, waiting to receive vaccine, receiving vaccine, and waiting at site to ensure no adverse reactions take place.
    • Employer cannot require employee to get vaccinated during non-work hours.
    • If employee decides to go during non-work hours, employer is not required to pay for that time.
  • Employer must provide “reasonable” paid sick leave to recover from any side effects.
    • OSHA presumes that 2 days is “reasonable.”
    • Employer-provided paid sick leave may be used for this purpose, but if employee has no available sick leave, leave must still be provided for this purpose.


  • Employee who is not fully vaccinated and reports at least once every 7 days to a workplace where coworkers or customers are present:
    • Must be tested at least once every 7 days and provide test result.
  • Employee who does not report during a period of 7 or more days to a workplace where coworkers or customers are present:
    • Must be tested within 7 days prior to returning to workplace.
    • Must provide test result upon return to workplace.
  • ***Employer must not allow employees subject to testing to enter workplace until test results are produced.
  • Test must be:
    • Cleared, approved, or authorized to detect a current COVID-19 infection
    • Administered in accordance with the authorized instructions
    • Not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.
    • Antibody tests don’t meet this definition
  • Employer cannot require testing within 90 day after a positive test or positive diagnosis.
    • This means during this period, employee can come to work unvaccinated and not subject to testing.
  • ***ETS does not require employers to pay employees for the time it takes them to get tested.
    • However, employers may be required to pay for this time under pre-existing law or CBA.
    • In California, Cal/OSHA is expected to “quickly” issue updated guidance addressing this.

Removal of Employees with Positive Test or Diagnosis:

  • Employees must immediately notify employer when they receive a positive COVID-19 test or diagnosis.
  • Employers must immediately remove from the workplace any employee with a positive test or diagnosis, regardless of vaccination status.
  • ***Employer is not required to provide paid time off when employee is removed/excluded from the workplace.
    • However, paid time may be required by other laws, regulations, or a collective bargaining agreement.
    • Cal/OSHA is likely to address this in its version of the ETS.
  • Employee is allowed to return to the workplace when:
    • Employee receives negative test result on a confirmatory NAAT following a positive antigen test;
    • CDC criteria in isolation guidance is met; or
    • Recommended by a licensed health care provider.

Penalties for Non-Compliance:

  • Fine up to $13,653 for each serious violation.
  • A willful violation (deliberately disregarding the mandate): fine up to $136,532.


This update is provided to our clients, business associates and friends for informational purposes only. Legal advice should be based on your specific situation and provided by a qualified attorney.