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Federal Government Issues COVID Vaccine/Testing Requirements


November 4, 2021  by  Steve Gross
Category:  COVID-19

Federal Government Issues COVID Vaccine/Testing Requirements

Editor's Note: On November 6, the 5th Circuit Federal Court of Appeals issued a nationwide emergency stay of the OSHA Emergency Temporary Standards (ETS). This means that until a court lifts the stay the ETS will not be in effect. This stay likely means that Washington State is not yet required to adopt regulations related to mandatory vaccines.


President Biden announced earlier this year that companies with 100 or more employees would have to adopt policies requiring their employees to be vaccinated against COVID-19 or to require unvaccinated employees to undergo weekly testing and wear a face covering in the workplace.

On November 4 the Occupation Safety and Health Administration (OSHA) released for public inspection the Emergency Temporary Standard (ETS) implementing this directive. The official ETS will be published to the Federal Register and available on the same webpage on Friday, November 5.

OSHA has comprehensive information about the new rules on its COVID-19 Vaccination and Testing ETS webpage. The requirements are detailed, with several exceptions and exemptions, so attempting to summarize them all here would be impractical. However, below are some key points from the FAQ.

Please note that the State of Washington has 30 days to implement its own rules, as described below. The state rules must be at least as effective as the federal rules but may also be more stringent. This means the state could potentially issue stricter rules, such as lowering the 100-employee threshold or removing the testing option. This blog describes the minimum federal requirements, and we will provide updates on the state requirements once they are available.

Will the Requirement Apply to Washington Local Governments?

Not directly. Question 2.E of the FAQ says that under the OSHA rule, Washington must adopt a rule that meets or exceeds this one. The question says in relevant part that:

[I]n states with OSHA-approved occupational safety and health programs (“State Plans”), state and local government employers with 100 or more employees will be covered by State occupational safety and health requirements, and State Plans must adopt requirements for state and local employers that are at least as effective as federal OSHA’s requirements in this ETS. State Plans may also choose to adopt more protective occupational safety and health requirements (29 USC 667(c)).

Washington State operates under the State Plan system. According to Question 1.C of the FAQ, state plans must adopt this ETS or an ETS that is at least as effective as this ETS within 30 days of publication in the Federal Register and must notify OSHA of the action they will take within 15 days. This means the State of Washington would need to notify OSHA of its intended action by November 20 and must adopt its ETS by December 5.

How Is the 100-Employee Threshold Calculated?

To determine if your agency meets the 100-employee threshold, look at the questions in Section 2A of the FAQ. These questions provide guidance based on several scenarios: whether employees work off-site, whether the requirements apply to the entire business or individual locations, full-time vs. part-time employees, independent contractors, employees working from home, and many others. Review these carefully with your attorney to determine whether the new rules apply to your agency.

Does the ETS Preempt Local Regulations?

This requirement preempts local agencies’ authority to prohibit vaccinations (see Question 1.A), but it does not preempt local regulations requiring the use of face coverings or proof of vaccinations (see Question 1.B).

What Are the Deadlines?

The deadlines for complying with different parts of the policy are either 30 or 60 days after the publication date of the rule (November 5, 2021). Check the table in Question 12.A for specific requirements and deadlines.

The deadline for employees to receive their final vaccination is January 4, 2022, 60 days after publication in the Federal Register (see Question 12.B). Any employees who have not received their final vaccination by that time will be subject to mandatory weekly testing until they are either fully vaccinated or until the ETS expires (see Question 6.I).

Note that the initial deadline does not require employees to be fully vaccinated (i.e., two weeks past the date of their final vaccination) by that time; an employee who receives the single-dose Johnson & Johnson shot on January 4 would meet this deadline and would not be subject to weekly testing.

Also, these deadlines do not account for additional time to comply, which might be in the state rules. Since the federal rule requires the state to adopt rules consistent with the federal rules, state rules might not be able to extend the January 4 deadline.

What Tests Are Acceptable?

Acceptable tests are described in Question 6.J and subsequent questions.

Note that the Washington State Department of Health (DOH) also recently published Interim SARS-CoV-2 Self-Testing Guidance for Employers. It notes that if the employer directs the use of self-testing in any of the ways described in the document, including (but not limited to) providing guidance on the frequency of testing, administering and performing the tests, interpreting the tests, and/or what to do based on test results, the employer must apply for and receive a Clinical Laboratory Improvement Amendments of 1988 (CLIA) Certificate of Waiver from DOH and report all test results to DOH.

Where Can I Find Sample Policies?

You do not have to reinvent the wheel! OSHA has provided a Mandatory Vaccination Policy Template (.docx) and a Vaccination, Testing and Face Covering Policy Template (.docx).

Additional examples of local vaccination policies from Washington State can be found on in the Face Masks and Vaccinations section of MRSC's COVID-19 Operations and Personnel Issues webpage.

How Long Will the Rule Be in Effect?

The rule is intended to be in place for six months, through May 5, 2022 (see Question 12.C). However, OSHA will monitor COVID-19 trends and update the ETS if needed.

What's Next?

We will publish more information in coming weeks if and when the State of Washington adopts the federal ETS or its own comparable ETS. While the state may adopt more protective requirements, local agencies may want to consider planning for at least the minimum requirements in the federal rule.

As with all federal and state requirements related to COVID-19, we expect lawsuits challenging the new rules. 

For additional information on vaccine and face covering requirements, see the following MRSC blogs:


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Steve Gross

Steve Gross joined MRSC as a Legal Consultant in January 2020.

Steve has worked in municipal law and government for over 20 years as an Assistant City Attorney for Lynnwood, Seattle, Tacoma, and Auburn, and as the City Attorney for Port Townsend and Auburn. He also has been a legal policy advisor for the Pierce County Council and has worked in contract administration.

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