61402 Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Rules and Regulations 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Parts 1910, 1915, 1917, 1918, 

1926, and 1928 

[Docket No. OSHA–2021–0007] 

RIN 1218–AD42 

COVID–19 Vaccination and Testing; 

Emergency Temporary Standard 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Department of 

Labor. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Occupational Safety and 

Health Administration (OSHA) is 

issuing an emergency temporary 

standard (ETS) to protect unvaccinated 

employees of large employers (100 or 

more employees) from the risk of 

contracting COVID–19 by strongly 

encouraging vaccination. Covered 

employers must develop, implement, 

and enforce a mandatory COVID–19 

vaccination policy, with an exception 

for employers that instead adopt a 

policy requiring employees to either get 

vaccinated or elect to undergo regular 

COVID–19 testing and wear a face 

covering at work in lieu of vaccination. 

DATES: The rule is effective November 5, 

2021. The incorporation by reference of 

certain publications listed in the rule is 

approved by the Director of the Federal 

Register as of November 5, 2021. 

Compliance dates: Compliance dates 

for specific provisions are in 29 CFR 

1910.501(m). 

Comments: Written comments, 

including comments on any aspect of 

this ETS and whether this ETS should 

become a final rule, must be submitted 

by December 6, 2021 in Docket No. 

OSHA–2021–0007. Comments on the 

information collection determination 

described in Additional Requirements 

(Section V.K. of this preamble) (OMB 

review under the Paperwork Reduction 

Act of 1995) may be submitted by 

January 4, 2022 in Docket No. OSHA– 

2021–0008. 

ADDRESSES: In accordance with 28 

U.S.C. 2112(a), the Agency designates 

Edmund C. Baird, the Associate 

Solicitor for Occupational Safety and 

Health, Office of the Solicitor, U.S. 

Department of Labor, to receive 

petitions for review of the ETS. Service 

can be accomplished by email to zzSOLCovid19-ETS@dol.gov. 

Written comments. You may submit 

comments and attachments, identified 

by Docket No. OSHA–2021–0007, 

electronically at www.regulations.gov, 

which is the Federal e-Rulemaking 

Portal. Follow the online instructions 

for making electronic submissions. 

Instructions: All submissions must 

include the agency’s name and the 

docket number for this rulemaking 

(Docket No. OSHA–2021–0007). All 

comments, including any personal 

information you provide, are placed in 

the public docket without change and 

may be made available online at 

www.regulations.gov. Therefore, OSHA 

cautions commenters about submitting 

information they do not want made 

available to the public, or submitting 

materials that contain personal 

information (either about themselves or 

others), such as Social Security 

Numbers and birthdates. 

Docket: To read or download 

comments or other material in the 

docket, go to Docket No. OSHA–2021– 

0007 at www.regulations.gov. All 

comments and submissions are listed in 

the www.regulations.gov index; 

however, some information (e.g., 

copyrighted material) is not publicly 

available to read or download through 

that website. All comments and 

submissions, including copyrighted 

material, are available for inspection 

through the OSHA Docket Office. 

Documents submitted to the docket by 

OSHA or stakeholders are assigned 

document identification numbers 

(Document ID) for easy identification 

and retrieval. The full Document ID is 

the docket number plus a unique fourdigit code. OSHA is identifying 

supporting information in this ETS by 

author name and publication year, when 

appropriate. This information can be 

used to search for a supporting 

document in the docket at http://

www.regulations.gov. Contact the OSHA 

Docket Office at 202–693–2350 (TTY 

number: 877–889–5627) for assistance 

in locating docket submissions. 

FOR FURTHER INFORMATION CONTACT: 

General information and press 

inquiries: Contact Frank Meilinger, 

OSHA Office of Communications, U.S. 

Department of Labor; telephone (202) 

693–1999; email OSHAComms@dol.gov. 

For technical inquiries: Contact 

Andrew Levinson, OSHA Directorate of 

Standards and Guidance, U.S. 

Department of Labor; telephone (202) 

693–1950; email ETS@dol.gov. 

SUPPLEMENTARY INFORMATION: The 

preamble to the ETS on COVID–19 

vaccination and testing follows this 

outline: 

Table of Contents 

I. Executive Summary and Request for 

Comment 

A. Executive Summary 

B. Request for Comment 

II. Pertinent Legal Authority 

III. Rationale for the ETS 

A. Grave Danger 

B. Need for the ETS 

IV. Feasibility 

A. Technological Feasibility 

B. Economic Analysis 

V. Additional Requirements 

VI. Summary and Explanation 

A. Purpose 

B. Scope and Application 

C. Definitions 

D. Employer Policy on Vaccination 

E. Determination of Employee Vaccination 

Status 

F. Employer Support for Employee 

Vaccination 

G. COVID–19 Testing for Employees Who 

Are Not Fully Vaccinated 

H. Employee Notification to Employer of a 

Positive COVID–19 Test and Removal 

I. Face Coverings 

J. Information Provided to Employees 

K. Reporting COVID–19 Fatalities and 

Hospitalizations to OSHA 

L. Availability of Records 

M. Dates 

N. Severability 

O. Incorporation by Reference 

VII. Authority and Signature 

I. Executive Summary and Request for 

Comment 

A. Executive Summary 

This ETS is based on the requirements 

of the Occupational Safety and Health 

Act (OSH Act or Act) and legal 

precedent arising under the Act. Under 

section 6(c)(1) of the OSH Act, 29 U.S.C. 

655(c)(1), OSHA shall issue an ETS if 

the agency determines that employees 

are subject to grave danger from 

exposure to substances or agents 

determined to be toxic or physically 

harmful or from new hazards, and an 

ETS is necessary to protect employees 

from such danger. These legal 

requirements are more fully discussed 

in Pertinent Legal Authority (Section II. 

of this preamble). This ETS does not 

apply to workplaces subject to E.O. 

14042 on Requiring Coronavirus Disease 

2019 Vaccination for Federal 

Contractors. In addition, OSHA will 

treat federal agencies’ compliance with 

E.O. 14043, and the Safer Federal 

Workforce Task Force guidance issued 

under section 4(e) of Executive Order 

13991 and section 2 of Executive Order 

14043, as sufficient to meet their 

obligations under the OSH Act and E.O. 

12196. 

COVID–19 has killed over 725,000 

people in the United States in less than 

two years, and infected millions more 

(CDC, October 18, 2021—Cumulative 

US Deaths). The pandemic continues to 

affect workers and workplaces. While 

COVID–19 vaccines authorized or 


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Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Rules and Regulations 61403 

approved by the U.S. Food and Drug 

Administration (FDA) effectively protect 

vaccinated individuals against severe 

illness and death from COVID–19, 

unvaccinated individuals remain at 

much higher risk of severe health 

outcomes from COVID–19. Further, 

unvaccinated workers are much more 

likely to contract and transmit COVID– 

19 in the workplace than vaccinated 

workers. OSHA has determined that 

many employees in the U.S. who are not 

fully vaccinated against COVID–19 face 

grave danger from exposure to SARS– 

CoV–2 in the workplace. This finding of 

grave danger is based on the severe 

health consequences associated with 

exposure to the virus along with 

evidence demonstrating the 

transmissibility of the virus in the 

workplace and the prevalence of 

infections in employee populations, as 

discussed in Grave Danger (Section 

III.A. of this preamble). 

OSHA has also determined that an 

ETS is necessary to protect 

unvaccinated workers from the risk of 

contracting COVID–19 at work, as 

discussed in Need for the ETS (Section 

III.B. of this preamble). At the present 

time, workers are becoming seriously ill 

and dying as a result of occupational 

exposures to COVID–19, when a simple 

measure, vaccination, can largely 

prevent those deaths and illnesses. The 

ETS protects these workers through the 

most effective and efficient control 

available—vaccination—and further 

protects workers who remain 

unvaccinated through required regular 

testing, use of face coverings, and 

removal of all infected employees from 

the workplace. OSHA also concludes, 

based on its enforcement experience 

during the pandemic to date, that 

continued reliance on existing standards 

and regulations, the General Duty 

Clause of the OSH Act, 29 U.S.C. 

654(a)(1), and workplace guidance, in 

lieu of an ETS, is not adequate to protect 

unvaccinated employees from the grave 

danger of being infected by, and 

suffering death or serious health 

consequences from, COVID–19. 

OSHA will continue to monitor trends 

in COVID–19 infections and death as 

more of the workforce and the general 

population become fully vaccinated 

against COVID–19 and the pandemic 

continues to evolve. Where OSHA finds 

a grave danger from the virus no longer 

exists for the covered workforce (or 

some portion thereof), or new 

information indicates a change in 

measures necessary to address the grave 

danger, OSHA will update this ETS, as 

appropriate. 

This ETS applies to employers with a 

total of 100 or more employees at any 

time the standard is in effect. In light of 

the unique occupational safety and 

health dangers presented by COVID–19, 

and against the backdrop of the 

uncertain economic environment of a 

pandemic, OSHA is proceeding in a 

stepwise fashion in addressing the 

emergency this rule covers. OSHA is 

confident that employers with 100 or 

more employees have the administrative 

capacity to implement the standard’s 

requirements promptly, but is less 

confident that smaller employers can do 

so without undue disruption. OSHA 

needs additional time to assess the 

capacity of smaller employers, and is 

seeking comment to help the agency 

make that determination. Nonetheless, 

the agency is acting to protect workers 

now in adopting a standard that will 

reach two-thirds of all private-sector 

workers in the nation, including those 

working in the largest facilities, where 

the most deadly outbreaks of COVID–19 

can occur. 

The agency has also evaluated the 

feasibility of this ETS and has 

determined that the requirements of the 

ETS are both economically and 

technologically feasible, as outlined in 

Feasibility (Section IV. of this 

preamble). The specific requirements of 

the ETS are outlined and described in 

Summary and Explanation (Section VI. 

of this preamble). 

B. Request for Comment 

Although this ETS takes effect 

immediately, it also serves as a proposal 

under Section 6(b) of the OSH Act (29 

U.S.C. 655(b)) for a final standard. 

Accordingly, OSHA seeks comment on 

all aspects of this ETS and whether it 

should be adopted as a final standard. 

OSHA encourages commenters to 

explain why they prefer or disfavor 

particular policy choices, and include 

any relevant studies, experiences, 

anecdotes or other information that may 

help support the comment. In 

particular, OSHA seeks comments on 

the following topics: 

1. Employers with fewer than 100 

employees. As noted above and fully 

discussed in the Summary and 

Explanation for Scope and Application 

(Section VI.B. of this preamble), OSHA 

has implemented a 100-employee 

threshold for the requirements of this 

standard to focus the ETS on companies 

that OSHA is confident will have 

sufficient administrative systems in 

place to comply quickly with the ETS. 

The agency is moving in a stepwise 

fashion on the short timeline 

necessitated by the danger presented by 

COVID–19 while soliciting stakeholder 

comment and additional information to 

determine whether to adjust the scope 

of the ETS to address smaller employers 

in the future. OSHA seeks information 

about the ability of employers with 

fewer than 100 employees to implement 

COVID–19 vaccination and/or testing 

programs. Have you instituted 

vaccination mandates (with or without 

alternatives), or requirements for regular 

COVID–19 testing or face covering use? 

What have been the benefits of your 

approach? What challenges have you 

had or could you foresee in 

implementing such programs? Is there 

anything specific to your industry, or 

the size of your business, that poses 

particular obstacles in implementing the 

requirements in this standard? How 

much time would it take, what types of 

costs would you incur, and how much 

would it cost for you to implement such 

requirements? 

2. Significant Risk. If OSHA were to 

finalize a rule based on this ETS, it 

would be a standard adopted under 6(b) 

of the OSH Act, which requires a 

finding of significant risk from exposure 

to COVID–19. As discussed more fully 

in Pertinent Legal Authority (Section II. 

of this preamble), this is a lower 

showing of risk than grave danger, the 

finding required to issue a 6(c) 

emergency temporary standard. How 

should the scope of the rule change to 

address the significant risk posed by 

COVID–19 in the workplace? Should 

portions of the rule, such as face 

coverings, apply to fully vaccinated 

persons? 

3. Prior COVID–19 infections. OSHA 

determined that workers who have been 

infected with COVID–19 but have not 

been fully vaccinated still face a grave 

danger from workplace exposure to 

SARS–CoV–2. This is an area of ongoing 

scientific inquiry. Given scientific 

uncertainty and limitations in testing for 

infection and immunity, OSHA is 

concerned that it would be infeasible for 

employers to operationalize a standard 

that would permit or require an 

exception from vaccination or testing 

and face covering based on prior 

infection with COVID–19. Is there 

additional scientific information on this 

topic that OSHA should consider as it 

determines whether to proceed with a 

permanent rule? 

In particular, what scientific criteria 

can be used to determine whether a 

given employee is sufficiently protected 

against reinfection? Are there any 

temporal limits associated with this 

criteria to account for potential 

reductions in immunity over time? Do 

you require employees to provide 

verification of infection with COVID– 

19? If so, what kinds of verification do 

you accept (i.e., PCR testing, antigen 

testing, etc.)? What challenges have you 


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61404 Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Rules and Regulations 

1The Secretary has delegated most of his duties 

under the OSH Act to the Assistant Secretary of 

Labor for Occupational Safety and Health. 

Secretary’s Order 08–2020, 85 FR 58393 (Sept. 18, 

2020). This section uses the terms Secretary and 

OSHA interchangeably. 

experienced, if any, in operationalizing 

such an exception? 

4. Experience with COVID–19 

vaccination policies. Should OSHA 

impose a strict vaccination mandate 

(i.e., all employers required to 

implement mandatory vaccination 

policies as defined in this ETS) with no 

alternative compliance option? OSHA 

seeks information on COVID–19 

vaccination policies that employers 

have implemented to protect workers. If 

you have implemented a COVID–19 

vaccination policy: 

(a) When did you implement it, and 

what does your policy require? Was 

vaccination mandatory or voluntary 

under the policy? Do you offer 

vaccinations on site? What costs 

associated with vaccination did you 

cover under the policy? What 

percentage of your workforce was 

vaccinated as a result? Do you offer paid 

leave for receiving a vaccination? If 

vaccination is mandatory, have 

employees been resistant and if so what 

steps were required to enforce the 

policy? 

(b) How did you verify that employees 

were vaccinated? Are there other 

reliable means of vaccination 

verification not addressed by the ETS 

that should be included? Did you allow 

attestation where the employee could 

not find other proof, and if so, have you 

experienced any difficulties with this 

approach? Have you experienced any 

issues with falsified records of 

vaccination, and if so, how did you deal 

with them? 

(c) Have you experienced a decrease 

in infection rates or outbreaks after 

implementing this policy? 

(d) If you have received any requests 

for reasonable accommodation from 

vaccination, what strategies did you 

implement to address the 

accommodation and ensure worker 

safety (e.g., telework, working in 

isolation, regular testing and the use of 

face coverings)? 

5. COVID–19 testing and removal. 

OSHA seeks information on COVID–19 

testing and removal practices 

implemented to protect workers. 

(a) Do you have a testing and removal 

policy in your workplace and, if so, 

what does it require? How often do you 

require testing and what types of testing 

do you use (e.g., at-home tests, tests 

performed at laboratories, tests 

performed at your worksites)? What 

costs have you incurred as part of your 

testing and removal policies? Do you 

have difficulty in finding adequate 

availability of tests? How often? Have 

you experienced any issues with 

falsified test results, and if so, how did 

you deal with them? Have you 

experienced other difficulties in 

implementing a testing and removal 

scheme, including the length of time to 

obtain COVID–19 test results? Do you 

offer paid leave for testing? 

(b) How often have you detected and 

removed COVID–19 positive employees 

from the workplace under this policy? 

Do you provide paid leave and job 

protection to employees you remove for 

this reason? 

(c) Should OSHA require testing more 

often than on a weekly basis? 

6. Face coverings. As discussed in the 

Summary and Explanation for Face 

Coverings (Section VI.I. of this 

preamble), ASTM released a 

specification standard on February 15, 

2021, to establish a national standard 

baseline for barrier face coverings 

(ASTM F3502–21). Should OSHA 

require the use of face coverings 

meeting the ASTM F3502–21 standard 

instead of the face coverings specified 

by the ETS? If so, should OSHA also 

require that such face coverings meet 

the NIOSH Workplace Performance or 

Workplace Performance Plus criteria 

(see CDC, September 23, 2021)? Are 

there particular workplace settings in 

which face coverings meeting one 

standard should be favored over 

another? Are there alternative criteria 

OSHA should consider for face 

coverings instead of the F3502–21 

standard or NIOSH Workplace 

Performance or Workplace Performance 

Plus criteria? Is there sufficient capacity 

to supply face coverings meeting 

F3502–01 and/or NIOSH Workplace 

Performance or Workplace Performance 

Plus criteria to all employees covered by 

the ETS? What costs have you incurred 

as part of supplying employees with 

face coverings meeting the appropriate 

criteria? 

7. Other controls. This ETS requires 

employees to either be fully vaccinated 

against COVID–19 or be tested weekly 

and wear face coverings, based on the 

type of policy their employer adopts. It 

stops short of requiring the full suite of 

workplace controls against SARS–CoV– 

2 transmission recommended by OSHA 

and the CDC, including distancing, 

barriers, ventilation, and sanitation. As 

OSHA explained in Need for the ETS 

(Section III.B. of this preamble), OSHA 

has determined that it needs more 

information before imposing these 

requirements on the entire scope of 

industries and employers covered by the 

standard. OSHA is interested in hearing 

from employers about their experience 

in implementing a full suite of 

workplace controls against COVID–19. 

What measures have you taken to 

protect employees against COVID–19 in 

your workplace? Are there controls that 

you attempted to employ but found 

ineffective or infeasible? What are they? 

Why did you conclude that they were 

they ineffective or infeasible; for 

example, are there particular aspects of 

your workplace or industry that make 

certain controls infeasible? Do you 

require both fully vaccinated and 

unvaccinated employees to comply with 

these controls? Have you experienced a 

reduction in infection rates or outbreaks 

since implementing these controls? 

8. Educational materials. Have you 

implemented any policies or provided 

any information that has been helpful in 

encouraging an employee to be 

vaccinated? 

9. Feasibility and health impacts. Do 

you have any experience or data that 

would inform OSHA’s estimates in its 

economic feasibility analysis or any of 

the assumptions or estimates used in 

OSHA’s identification of the number of 

hospitalizations prevented and lives 

saved from its health impacts analysis 

(see OSHA, October 2021c)? 

References 

Centers for Disease Control and Prevention 

(CDC). (2021, October 18). COVID Data 

Tracker. https://covid.cdc.gov/coviddata-tracker/. (CDC, October 18, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, September 23). Types of 

Masks and Respirators. https://

www.cdc.gov/coronavirus/2019-ncov/ 

prevent-getting-sick/types-of-masks.html. 

(CDC, September 23, 2021) 

Occupational Safety and Health 

Administration (OSHA). (2021c, 

October). Health Impacts of the COVID– 

19 Vaccination and Testing ETS. (OSHA, 

October 2021c) 

II. Pertinent Legal Authority 

The purpose of the Occupational 

Safety and Health Act of 1970 (OSH 

Act), 29 U.S.C. 651 et seq., is ‘‘to assure 

so far as possible every working man 

and woman in the Nation safe and 

healthful working conditions and to 

preserve our human resources.’’ 29 

U.S.C. 651(b). To this end, Congress 

authorized the Secretary of Labor 

(Secretary) to promulgate and enforce 

occupational safety and health 

standards under sections 6(b) and (c) of 

the OSH Act.1 29 U.S.C. 655(b). These 

provisions provide bases for issuing 

occupational safety and health 

standards under the Act. Once OSHA 

has established as a threshold matter 

that a health standard is necessary 

under section 6(b) or (c)—i.e., to reduce 


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Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Rules and Regulations 61405 

a significant risk of material health 

impairment, or a grave danger to 

employee health—the Act gives the 

Secretary ‘‘almost unlimited discretion 

to devise means to achieve the 

congressionally mandated goal’’ of 

protecting employee health, subject to 

the constraints of feasibility. See United 

Steelworkers of Am. v. Marshall, 647 

F.2d 1189, 1230 (D.C. Cir. 1981). A 

standard’s individual requirements need 

only be ‘‘reasonably related’’ to the 

purpose of ensuring a safe and healthful 

working environment. Id. at 1237, 1241; 

see also Forging Indus. Ass’n v. Sec’y of 

Labor, 773 F.2d 1436, 1447 (4th Cir. 

1985). OSHA’s authority to regulate 

employers is hedged by constitutional 

considerations and, pursuant to section 

4(b)(1) of the OSH Act, the regulations 

and enforcement policies of other 

federal agencies. See, e.g., Chao v. 

Mallard Bay Drilling, Inc., 534 U.S. 235, 

241 (2002). 

The OSH Act in section 6(c)(1) states 

that the Secretary ‘‘shall’’ issue an 

emergency temporary standard (ETS) 

upon a finding that the ETS is necessary 

to address a grave danger to workers. 

See 29 U.S.C. 655(c). In particular, the 

Secretary shall provide, without regard 

to the requirements of chapter 5, title 5, 

United States Code, for an emergency 

temporary standard to take immediate 

effect upon publication in the Federal 

Register if the Secretary makes two 

determinations: That employees are 

exposed to grave danger from exposure 

to substances or agents determined to be 

toxic or physically harmful or from new 

hazards, and that such emergency 

standard is necessary to protect 

employees from such danger. 29 U.S.C. 

655(c)(1). A separate section of the OSH 

Act, section 8(c), authorizes the 

Secretary to prescribe regulations 

requiring employers to make, keep, and 

preserve records that are necessary or 

appropriate for the enforcement of the 

Act. 29 U.S.C. 657(c)(1). Section 8(c) 

also provides that the Secretary shall 

require employers to keep records of, 

and report, work-related deaths and 

illnesses. 29 U.S.C. 657(c)(2). 

The ETS provision, section 6(c)(1), 

exempts the Secretary from procedural 

requirements contained in the OSH Act 

and the Administrative Procedure Act, 

including those for public notice, 

comments, and a rulemaking hearing. 

See, e.g., 29 U.S.C. 655(b)(3); 5 U.S.C. 

552, 553. 

The Secretary must issue an ETS in 

situations where employees are exposed 

to a ‘‘grave danger’’ and immediate 

action is necessary to protect those 

employees from such danger. 29 U.S.C. 

655(c)(1); Pub. Citizen Health Research 

Grp. v. Auchter, 702 F.2d 1150, 1156 

(D.C. Cir. 1983). The determination of 

what exact level of risk constitutes a 

‘‘grave danger’’ is a ‘‘policy 

consideration that belongs, in the first 

instance, to the Agency.’’ Asbestos Info. 

Ass’n, 727 F.2d at 425 (accepting 

OSHA’s determination that eighty lives 

at risk over six months was a grave 

danger); Indus. Union Dep’t, AFL–CIO v. 

Am. Petroleum Inst., 448 U.S. 607, 655 

n.62 (1980). However, a ‘‘grave danger’’ 

represents a risk greater than the 

‘‘significant risk’’ that OSHA must show 

in order to promulgate a permanent 

standard under section 6(b) of the OSH 

Act, 29 U.S.C. 655(b). Int’l Union, 

United Auto., Aerospace, & Agr. 

Implement Workers of Am., UAW v. 

Donovan, 590 F. Supp. 747, 755–56 

(D.D.C. 1984), adopted, 756 F.2d 162 

(D.C. Cir. 1985); see also Indus. Union 

Dep’t, AFL–CIO, 448 U.S. at 640 n.45 

(noting the distinction between the 

standard for risk findings in permanent 

standards and ETSs). 

In determining the type of health 

effects that may constitute a ‘‘grave 

danger’’ under the OSH Act, the Fifth 

Circuit emphasized ‘‘the danger of 

incurable, permanent, or fatal 

consequences to workers, as opposed to 

easily curable and fleeting effects on 

their health.’’ Fla. Peach Growers Ass’n, 

Inc. v. U. S. Dep’t of Labor, 489 F.2d 

120, 132 (5th Cir. 1974). Although the 

findings of grave danger and necessity 

must be based on evidence of ‘‘actual, 

prevailing industrial conditions,’’ see 

Int’l Union, 590 F. Supp. at 751, when 

OSHA determines that exposure to a 

particular hazard would pose a grave 

danger to workers, OSHA can assume an 

exposure to a grave danger wherever 

that hazard is present in a workplace. 

Dry Color Mfrs. Ass’n, Inc. v. Dep’t of 

Labor, 486 F.2d 98, 102 n.3 (3d Cir. 

1973). 

In demonstrating whether OSHA had 

shown that an ETS is necessary, the 

Fifth Circuit considered whether OSHA 

had another available means of 

addressing the risk that would not 

require an ETS. Asbestos Info. Ass’n, 

727 F.2d at 426 (holding that necessity 

had not been proven where OSHA could 

have increased enforcement of alreadyexisting standards to address the grave 

risk to workers from asbestos exposure). 

Additionally, a standard must be both 

economically and technologically 

feasible in order to be ‘‘reasonably 

necessary and appropriate’’ under 

section 3(8) and, by inference, 

‘‘necessary’’ under section 6(c)(1)(B) of 

the Act. Cf. Am. Textile Mfrs. Inst., Inc. 

v. Donovan, 452 U.S. 490, 513 n.31 

(1981) (noting ‘‘any standard that was 

not economically or technologically 

feasible would a fortiori not be 

‘reasonably necessary or appropriate’ ’’ 

as required by the OSH Act’s definition 

of ‘‘occupational safety and health 

standard’’ in section 3(8)); see also 

Florida Peach Growers, 489 F.2d at 130 

(recognizing that the promulgation of 

any standard, including an ETS, must 

account for its economic effect). 

However, given that section 6(c) is 

aimed at enabling OSHA to protect 

workers in emergency situations, the 

agency is not required to make a 

feasibility showing with the same rigor 

as in ordinary section 6(b) rulemaking. 

Asbestos Info. Ass’n, 727 F.2d at 424 

n.18. 

On judicial review of an ETS, OSHA 

is entitled to great deference on the 

determinations of grave danger and 

necessity required under section 6(c)(1). 

See, e.g., Pub. Citizen Health Research 

Grp., 702 F.2d at 1156; Asbestos Info. 

Ass’n, 727 F.2d at 422 (judicial review 

of these legislative determinations 

requires deference to the agency); cf. 

Am. Dental Ass’n v. Martin, 984 F.2d 

823, 831 (7th Cir. 1993) (‘‘the duty of a 

reviewing court of generalist judges is 

merely to patrol the boundary of 

reasonableness’’). These determinations 

are ‘‘essentially legislative and rooted in 

inferences from complex scientific and 

factual data.’’ Pub. Citizen Health 

Research Grp., 702 F.2d at 1156. The 

agency is not required to support its 

conclusions ‘‘with anything 

approaching scientific certainty,’’ Indus. 

Union Dep’t, AFL–CIO, 448 U.S. at 656, 

and has the ‘‘prerogative to choose 

between conflicting evidence.’’ Asbestos 

Info. Ass’n, 727 F.2d at 425. 

The determinations of the Secretary in 

issuing standards under section 6 of the 

OSH Act, including ETSs, must be 

affirmed if supported by ‘‘substantial 

evidence in the record considered as a 

whole.’’ 29 U.S.C. 655(f). The Supreme 

Court described substantial evidence as 

‘‘such relevant evidence as a reasonable 

mind might accept as adequate to 

support a conclusion.’’ Am. Textile 

Mfrs. Inst., 452 U.S. at 522–23 (quoting 

Universal Camera Corp. v. NLRB, 340 

U.S. 474, 477 (1951)). The Court also 

noted that ‘‘the possibility of drawing 

two inconsistent conclusions from the 

evidence does not prevent an 

administrative agency’s finding from 

being supported by substantial 

evidence.’’ Id. at 523 (quoting Consolo 

v. FMC, 383 U.S. 607, 620 (1966)). The 

Fifth Circuit, recognizing the size and 

complexity of the rulemaking record 

before it in the case of OSHA’s ETS for 

organophosphorus pesticides, stated 

that a court’s function in reviewing an 

ETS to determine whether it meets the 

substantial evidence standard is 

‘‘basically [to] determine whether the 


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Secretary carried out his essentially 

legislative task in a manner reasonable 

under the state of the record before 

him.’’ Fla Peach Growers Ass’n, 489 

F.2d at 129. 

Although Congress waived the 

ordinary rulemaking procedures in the 

interest of ‘‘permitting rapid action to 

meet emergencies,’’ section 6(e) of the 

OSH Act, 29 U.S.C. 655(e), requires 

OSHA to include a statement of reasons 

for its action when it issues any 

standard. Dry Color Mfrs., 486 F.2d at 

105–06 (finding OSHA’s statement of 

reasons inadequate). By requiring the 

agency to articulate its reasons for 

issuing an ETS, the requirement acts as 

‘‘an essential safeguard to emergency 

temporary standard-setting.’’ Id. at 106. 

However, the Third Circuit noted that it 

did not require justification of ‘‘every 

substance, type of use or production 

technique,’’ but rather a ‘‘general 

explanation’’ of why the standard is 

necessary. Id. at 107. 

ETSs are, by design, temporary in 

nature. Under section 6(c)(3), an ETS 

serves as a proposal for a permanent 

standard in accordance with section 6(b) 

of the OSH Act (permanent standards), 

and the Act calls for the permanent 

standard to be finalized within six 

months after publication of the ETS. 29 

U.S.C. 655(c)(3); see Fla. Peach Growers 

Ass’n, 489 F.2d at 124. The ETS is 

effective ‘‘until superseded by a 

standard promulgated in accordance 

with’’ section 6(c)(3). 29 U.S.C. 

655(c)(2). 

Section 6(c)(1) states that the 

Secretary ‘‘shall’’ provide for an ETS 

when OSHA makes the prerequisite 

findings of grave danger and necessity. 

See Pub. Citizen Health Research Grp., 

702 F.2d at 1156 (noting the mandatory 

language of section 6(c)). OSHA is 

entitled to great deference in its 

determinations, and it must also 

account for ‘‘the fact that ‘the interests 

at stake are not merely economic 

interests in a license or a rate structure, 

but personal interests in life and 

health.’ ’’ Id. (quoting Wellford v. 

Ruckelshaus, 439 F.2d 598, 601 (D.C. 

Cir. 1971)). 

When OSHA issues a standard 

pursuant to section 6—whether 

permanent or an ETS—section 18 of the 

OSH Act provides that OSHA’s standard 

preempts any state occupational safety 

or health standard ‘‘relating to [the 

same] occupational safety or health 

issue’’ as the Federal standard. 29 U.S.C. 

667(b); see also Gade v. Nat’l Solid 

Wastes Mgmt. Ass’n, 505 U.S. 88, 97 

(1992). A state can avoid preemption 

only if it submits, and receives Federal 

approval for, a state plan for the 

development and enforcement of 

standards pursuant to section 18 of the 

Act, which must be ‘‘at least as 

effective’’ as the Federal standards. 29 

U.S.C. 667; Indus. Truck Ass’n v. Henry, 

125 F.3d 1305, 1311 (9th Cir. 1997). 

However, the OSH Act does not 

preempt state laws of ‘‘general 

applicability’’ that regulate workers and 

non-workers alike, so long as they do 

not conflict with an OSHA standard. 

Gade, 505 U.S. at 107. 

As discussed in detail elsewhere in 

this preamble, OSHA has determined 

that a grave danger exists necessitating 

a new ETS (see Grave Danger and Need 

for the ETS, Sections III.A. and III.B. of 

this preamble), and that compliance 

with this ETS is feasible for covered 

employers (see Feasibility, Section IV. of 

this preamble). OSHA has also provided 

a more detailed explanation of each 

provision of this ETS in Summary and 

Explanation (Section VI. of this 

preamble). In addition, OSHA wishes to 

provide here some general guidance on 

its legal authority to regulate COVID–19 

hazards, and for particular provisions of 

this ETS. 

As a threshold matter, OSHA’s 

authority to regulate workplace 

exposure to biological hazards like 

SARS–CoV–2 is well-established. 

Section 6(b)(5) of the OSH Act uses 

similar language to section 6(c)(1)(A): 

The former sets forth requirements for 

promulgating permanent standards 

addressing ‘‘toxic materials or harmful 

physical agents,’’ and the latter 

authorizes OSHA to promulgate an ETS 

addressing ‘‘substances or agents 

determined to be toxic or physically 

harmful’’ (as well as ‘‘new hazards’’). 

OSHA has consistently identified 

biological hazards similar to SARS– 

CoV–2, as well as SARS–CoV–2 itself, to 

be ‘‘toxic materials or harmful physical 

agents’’ under the Act. Indeed, in its 

exposure and medical records access 

regulation, OSHA has defined ‘‘toxic 

materials or harmful physical agents’’ to 

include ‘‘any . . . biological agent 

(bacteria, virus, fungus, etc.)’’ for which 

there is evidence that it poses a chronic 

or acute health hazard. 29 CFR 

1910.1020(c)(13). And in addition to 

previously regulating exposure to 

SARS–CoV–2 as a new and physically 

harmful agent in the Healthcare ETS 

(see, e.g., 86 FR at 32381), OSHA has 

also previously regulated biological 

hazards like SARS–CoV–2 as health 

hazards under section 6(b)(5), for 

example in the Bloodborne Pathogens 

(BBP) standard, 29 CFR 1910.1030, 

which addresses workplace exposure to 

HIV and Hepatitis B. The BBP standard 

was upheld (except as to application in 

certain limited industries) in American 

Dental Association, which observed that 

‘‘the infectious character’’ of the 

regulated bloodborne diseases might 

warrant ‘‘more regulation than would be 

necessary in the case of a 

noncommunicable disease.’’ 984 F.2d at 

826. In addition, in the preamble to the 

respiratory protection standard, 29 CFR 

1910.134, which was also promulgated 

under section 6(b)(5), ‘‘OSHA 

emphasize[d] that [the] respiratory 

protection standard does apply to 

biological hazards.’’ Respiratory 

Protection, 63 FR 1152–01, 1180 (Jan. 8, 

1998) (citing Mahone Grain Corp., 10 

BNA OSHC 1275 (No. 77–3041, 1981)). 

In addition to being a physically 

harmful agent covered by section 

6(c)(1)(A), SARS–CoV–2 is also, without 

question, a ‘‘new hazard’’ covered by 

this provision, as discussed in more 

detail in Grave Danger (Section III.A. of 

this preamble). SARS–CoV–2 was not 

known to exist until January 2020, and 

since then more than 725,000 people 

have died from COVID–19 in the U.S. 

alone (CDC, October 18, 2021— 

Cumulative US Deaths). 

Turning to specific provisions of this 

standard, the vaccination requirements 

in this ETS are also well within the 

bounds of OSHA’s authority. 

Vaccination can be a critical tool in the 

pursuit of health and safety goals, 

particularly in response to an infectious 

and highly communicable disease. See, 

e.g., Jacobson v. Commonwealth of 

Mass., 197 U.S. 11, 27–28 (1905) 

(recognizing use of smallpox vaccine as 

a reasonable measure to protect public 

health and safety); Klaassen v. Trustees 

of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 

2021) (citing Jacobson and noting that 

vaccination may be an appropriate 

safety measure against SARS–CoV–2 as 

‘‘[v]accination protects not only the 

vaccinated persons but also those who 

come in contact with them’’). And the 

OSH Act itself explicitly acknowledges 

that such treatments might be necessary, 

in some circumstances. 29 U.S.C. 

669(a)(5) (providing in the Act’s 

provisions on research and related 

activities conducted by the Secretary of 

Health and Human Services to aid 

OSHA in its formulation of health and 

safety standards that ‘‘[n]othing in this 

or any other provision of this Act shall 

be deemed to authorize or require 

medical examination, immunization, or 

treatment for those who object thereto 

on religious grounds, except where such 

is necessary for the protection of the 

health or safety of others.’’ (emphasis 

added)). In recognition of the health and 

safety benefits provided by vaccination, 

OSHA has previously exercised its 

authority to promulgate vaccine-related 

requirements in the COVID–19 

Healthcare ETS (29 CFR 1910.502(m)) 


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2OSHA notes that while the ETS does not impose 

these testing or face covering costs on employers, 

in some circumstances employers may be required 

to pay for the costs related to testing and/or face 

coverings by other laws, regulations, or collectively 

negotiated agreements. OSHA has no authority 

under the OSH Act to determine whether such 

obligations under other laws, regulations, or 

agreements might exist. 

3OSHA is defining the grave danger as workplace 

exposure to SARS–CoV–2, the virus that causes the 

development of COVID–19. COVID–19 is the 

disease that can occur in people exposed to SARSCoV–2, and that leads to the health effects 

described in this section. This distinction applies 

despite OSHA’s use of the terms SARS–CoV–2 and 

COVID–19 interchangeably in some parts of this 

preamble. 

4OSHA refers to the grave danger from 

occupational exposure to SARS–CoV–2 throughout 

this document. Those references are intended to 

encompass exposure to SARS–CoV–2 and all 

variants of SARS–CoV–2, including the Delta 

variant. 

and the BBP standard (29 CFR 

1910.1030(f)). The BBP standard 

illustrates congressional understanding 

that the statutory delegation of authority 

to OSHA to issue standards includes 

authority for vaccine provisions, where 

appropriate. See Public Law 102–170, 

Title I, Section 100, 105 Stat. 1107 

(1991) (directing OSHA to complete the 

BBP rulemaking by a date certain, and 

providing that if OSHA did not do so, 

the proposed rule, which included a 

vaccine provision, would become the 

final standard). 

Additionally, OSHA’s authority to 

require employers to bear the costs of 

particular provisions of a standard is 

solidly grounded in the OSH Act. The 

Act reflects Congress’s determination 

that the costs of compliance with the 

Act and OSHA standards are part of the 

cost of doing business and OSHA may 

foreclose employers from shifting those 

costs to employees. See Am. Textile 

Mfrs. Inst., 452 U.S. at 514; Phelps 

Dodge Corp. v. OSHRC, 725 F.2d 1237, 

1239–40 (9th Cir. 1984); see also Sec’y 

of Labor v. Beverly Healthcare-Hillview, 

541 F.3d 193 (3d Cir. 2008). Consistent 

with this authority, OSHA has largely 

required employers to bear the costs of 

the provisions of this ETS, including the 

typical costs associated with 

vaccination. The allocation of 

vaccination costs to employers in this 

ETS is similar to OSHA’s treatment of 

vaccine-related costs in the COVID–19 

Healthcare ETS and the BBP standards. 

See 29 CFR 1910.502(m), (p); 29 CFR 

1910.1030(f)(1)(ii)(A). 

The OSH Act provides OSHA with 

discretion, however, to decide whether 

to impose certain costs—such as those 

related to medical examinations or other 

tests—on employers ‘‘[w]here [it 

determines that such costs are] 

appropriate.’’ 29 U.S.C. 655(b)(7). OSHA 

has determined that for purposes of this 

ETS, it would not be ‘‘appropriate’’ to 

impose on employers any costs 

associated with COVID–19 testing for 

employees who choose not to be 

vaccinated. For most of the agency’s 

existing standards containing medical 

testing and removal provisions, OSHA 

has found it necessary to impose the 

costs of such provisions on employers 

in order to remove barriers to employee 

participation in medical examinations 

that are critical to effectuating the 

standards’ safety and health protections. 

See United Steelworkers of Am., 647 

F.2d at 1229–31, 1237–38. However, as 

explained in greater detail elsewhere in 

this preamble (see Need for the ETS, 

Section III.B. of this preamble), the 

ETS’s safety and health protections are 

best effectuated by employee 

vaccination, not testing. Accordingly, 

OSHA only requires employers to bear 

the costs of employee compliance with 

the preferred, and more protective, 

vaccination provision, but not costs 

associated with testing. The agency does 

not believe it appropriate to impose the 

costs of testing on an employer where 

an employee has made an individual 

choice to pursue a less protective 

option. For the same reasons, OSHA has 

also determined that it is not 

appropriate to require employers to pay 

for face coverings for employees who 

choose not to be vaccinated.2

Finally, the Act and its legislative 

history ‘‘both demonstrate 

unmistakably’’ OSHA’s authority to 

require employers to temporarily 

remove workers from the workplace to 

prevent exposure to a health hazard. 

United Steelworkers of Am., 647 F.2d at 

1230. And again, this is an authority 

OSHA has repeatedly exercised in prior 

standards, including in: COVID–19 

Healthcare ETS (29 CFR 1910.502); Lead 

(29 CFR 1910.1025); Cadmium (29 CFR 

1910.1027); Benzene (29 CFR 

1910.1028); Formaldehyde (29 CFR 

1910.1048); Methylenedianiline (29 CFR 

1910.1050); Methylene Chloride (29 

CFR 1910.1052); and Beryllium (29 CFR 

1910.1024). It is equally appropriate to 

impose that obligation here. 

For all of these reasons, as well as 

those explained more fully in other 

areas of this preamble, OSHA has the 

authority—and obligation—to 

promulgate this ETS. 

References 

Centers for Disease Control and Prevention 

(CDC). (2021, October 18). COVID Data 

Tracker. https://covid.cdc.gov/coviddata-tracker/. (CDC, October 18, 2021) 

III. Rationale for the ETS 

A. Grave Danger 

I. Introduction 

Section 6(c)(1) of the OSH Act 

requires the Secretary to issue an ETS in 

situations where employees are exposed 

to a ‘‘grave danger’’ and immediate 

action is necessary to protect those 

employees from such danger (29 U.S.C. 

655(c)(1)). Consistent with its legal 

duties, OSHA is issuing this ETS to 

address the grave danger posed by 

occupational exposure to SARS–CoV–2, 

the virus that causes COVID–19.3 OSHA 

has determined that occupational 

exposure to SARS–CoV–2, including the 

Delta variant (B.1.617.2 and AY 

lineages), presents a grave danger to 

unvaccinated workers in the U.S., with 

several exceptions explained below.4

This finding of grave danger is based on 

the science of how the virus spreads, the 

transmissibility of the disease in 

workplaces, and the serious adverse 

health effects, including death, that can 

be suffered by those who are diagnosed 

with COVID–19. The protections of this 

ETS—which will apply, with some 

limitations, to a broad range of 

workplace settings where exposure to 

SARS–CoV–2 may occur—are designed 

to protect employees from infection 

with SARS–CoV–2 and from the dire, 

sometimes fatal, consequences of such 

infection. 

The fact that COVID–19 is not a 

uniquely work-related hazard does not 

change the determination that it is a 

grave danger to which employees are 

exposed, nor does it excuse employers 

from their duty to protect employees 

from the occupational transmission of 

SARS–CoV–2. The OSH Act is intended 

to ‘‘assure so far as possible every 

working man and woman in the Nation 

safe and healthful working conditions’’ 

(29 U.S.C. 651(b)), and there is nothing 

in the Act to suggest that its protections 

do not extend to hazards which might 

occur outside of the workplace as well 

as within. Indeed, COVID–19 is not the 

first hazard that OSHA has regulated 

that occurs both inside and outside the 

workplace. For example, the hazard of 

noise is not unique to the workplace, 

but the Fourth Circuit has upheld 

OSHA’s Occupational Noise Exposure 

standard (29 CFR 1910.95) (Forging 

Industry Ass’n v. Sec’ of Labor, 773 F.2d 

1437, 1444 (4th Cir. 1985)). Diseases 

caused by bloodborne pathogens, 

including HIV/AIDS and hepatitis B, are 

also not unique to the workplace, but 

the Seventh Circuit upheld the majority 

of OSHA’s Bloodborne Pathogens 

standard (29 CFR 1910.1030) (Am. 

Dental Ass’n v. Martin, 984 F.2d 823 

(7th Cir. 1993)). OSHA’s Sanitation 


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5See the definitions for the different levels of 

severity of COVID–19 illness in the National 

Institutes of Health’s COVID–19 treatment 

guidelines (NIH, October 12, 2021). 

6When OSHA refers to ‘‘unvaccinated’’ 

individuals in its grave danger finding, it means all 

individuals who are not fully vaccinated against 

COVID–19, i.e., those who are completely 

unvaccinated and those who are partially 

vaccinated. 

standard, 29 CFR 1910.141, which 

requires measures such as cleaning, 

waste disposal, potable water, toilets, 

and washing facilities, addresses 

hazards that exist everywhere—both 

within and outside of workplaces. 

Moreover, employees have more 

freedom to control their environment 

outside of work, and to make decisions 

about their behavior and their contact 

with others to better minimize their risk 

of exposure. However, during the 

workday, while under the control of 

their employer, workers may have little 

ability to limit contact with coworkers, 

clients, members of the public, patients, 

and others, any one of whom could 

represent a source of exposure to SARS– 

CoV–2. OSHA has a mandate to protect 

employees from hazards they are 

exposed to at work, even if they may be 

exposed to similar hazards outside of 

work. 

As described above in Pertinent Legal 

Authority (Section II. of this preamble), 

‘‘grave danger’’ indicates a risk that is 

more than ‘‘significant’’ (Int’l Union, 

United Auto., Aerospace, & Agr. 

Implement Workers of Am., UAW v. 

Donovan, 590 F. Supp. 747, 755–56 

(D.D.C. 1984); Indus. Union Dep’t, AFL– 

CIO v. Am. Petroleum Inst., 448 U.S. 

607, 640 n.45, 655 (1980) (stating that a 

rate of 1 worker in 1,000 workers 

suffering a given health effect 

constitutes a ‘‘significant’’ risk)). ‘‘Grave 

danger,’’ according to one court, refers 

to ‘‘the danger of incurable, permanent, 

or fatal consequences to workers, as 

opposed to easily curable and fleeting 

effects on their health’’ (Fla. Peach 

Growers Ass’n, Inc. v. U.S. Dep’t of 

Labor, 489 F.2d 120, 132 (5th Cir. 

1974)). Fleeting effects were described 

as nausea, excessive salivation, 

perspiration, or blurred vision and were 

considered so minor that they often 

went unreported; these effects are in 

stark contrast with the adverse health 

effects of COVID–19 infections, which 

are formally referenced as ranging from 

‘‘mild’’ to ‘‘critical,’’ 5 but which can 

involve significant illness, hospital 

stays, ICU care, death, and long-term 

health complications for survivors. 

Beyond this, however, ‘‘the 

determination of what constitutes a risk 

worthy of Agency action is a policy 

consideration that belongs, in the first 

instance, to the Agency’’ (Asbestos Info. 

Ass’n/N. Am. v. OSHA, 727 F.2d 415, 

425 (5th Cir. 1984)). 

In the context of ordinary 6(b) 

rulemaking, the Supreme Court has said 

that the OSH Act is not a ‘‘mathematical 

straitjacket,’’ nor does it require the 

agency to support its findings ‘‘with 

anything approaching scientific 

certainty,’’ particularly when operating 

on the ‘‘frontiers of scientific 

knowledge’’ (Indus. Union Dep’t, AFL– 

CIO v. Am. Petroleum Inst., 448 U.S. 

607, 655–56 (1980)). Courts reviewing 

OSHA’s determination of grave danger 

do so with ‘‘great deference’’ (Pub. 

Citizen Health Research Grp. v. 

Auchter, 702 F.2d 1150, 1156 (D.C. Cir. 

1983)). In one case, the Fifth Circuit, in 

reviewing an OSHA ETS for asbestos, 

declined to question the agency’s 

finding that 80 worker lives at risk 

nationwide over six months constituted 

a grave danger (Asbestos Info. Ass’n/N. 

Am., 727 F.2d at 424). OSHA estimates 

that this ETS would save over 6,500 

worker lives and prevent over 250,000 

hospitalizations over the course of the 

next six months (OSHA, October 2021c). 

Here, the mortality and morbidity risk to 

employees from COVID–19 is so dire 

that the grave danger from exposures to 

SARS–CoV–2 is clear. 

SARS–CoV–2 is both a physically 

harmful agent and a new hazard (see 29 

U.S.C. 655(c)(1)(A)). The majority of 

OSHA’s previous ETSs addressed toxic 

substances that had been familiar to the 

agency for many years prior to issuance 

of the ETS. OSHA’s Healthcare ETS, 

issued in response to COVID–19 earlier 

this year, is one notable exception. In 

most cases, OSHA’s ETSs were issued in 

response to new information about 

substances that had been used in 

workplaces for decades (e.g., Vinyl 

Chloride (39 FR 12342 (April 5, 1974)); 

Benzene (42 FR 22516 (May 3, 1977)); 

1,2-Dibromo-3-chloropropane (42 FR 

45536 (Sept. 9, 1977))). In some cases, 

the hazards of the toxic substance were 

already so well established that OSHA 

promulgated an ETS simply to update 

an existing standard (e.g., Vinyl cyanide 

(43 FR 2586 (Jan. 17, 1978))). The 

COVID–19 Healthcare ETS, which was 

issued in June 2021, was the sole 

instance in which OSHA issued an ETS 

to address a grave danger from a 

substance that had only recently come 

into existence. Although that action by 

the agency was challenged, the case has 

not gone to briefing (see United Food & 

Commercial Workers Int’l Union, AFL– 

CIO, CLC and AFL–CIO v. OSHA, Dep’t 

of Labor, D.C. Circuit No. 21–1143). 

Thus, no court has had occasion to 

examine OSHA’s authority under 

section (6)(c) of the OSH Act (29 U.S.C. 

655(c)) to address a grave danger from 

a ‘‘new hazard.’’ Yet by any measure, 

SARS–CoV–2 is a new hazard. Unlike 

any of the hazards addressed in 

previous ETSs, there were no 

documented cases of SARS–CoV–2 

infections in the United States until 

January 2020. Since then, more than 

725,000 people have died in the U.S. 

alone (CDC, October 18, 2021— 

Cumulative US Deaths). The pandemic 

continues to affect workers and 

workplaces, with workplace exposures 

leading to further exposures among 

workers’ families and communities. 

Clearly, SARS–CoV–2 is both a 

physically harmful agent and a new 

hazard that presents a grave danger to 

workers in the U.S. 

Published on June 21, 2021, OSHA’s 

Healthcare ETS (86 FR 32376) was 

written in response to the grave danger 

posed to healthcare workers in the 

United States who faced a heightened 

risk of infection from COVID–19. In the 

healthcare ETS, OSHA described its 

finding of grave danger for healthcare 

and healthcare support service workers 

(see 86 FR 32381–32412). OSHA now 

finds that all unvaccinated workers, 

with some exceptions, face a grave 

danger from the SARS–CoV–2 virus.6

II. Nature of the Disease 

The health effects of symptomatic 

COVID–19 illness can range from mild 

disease consisting of fever or chills, 

cough, and shortness of breath to severe 

disease. Severe cases can involve 

respiratory failure, blood clots, longterm cardiovascular and neurological 

effects, and organ damage, which can 

lead to hospitalization, ICU admission, 

and death (see 86 FR 32383–32388; 

NINDS, September 2, 2021). Even in the 

short time since the Healthcare ETS’s 

publication in June 2021, the risk posed 

by COVID–19 has changed 

meaningfully. Since OSHA considered 

the impact of COVID–19 when 

promulgating the Healthcare ETS, over 

135,000 additional Americans have died 

from COVID–19, and over 933,000 have 

been hospitalized, (CDC, October 18, 

2021—Cumulative US Deaths; CDC, 

May 28, 2021; CDC, October 18, 2021— 

Weekly Review). In August 2021, 

COVID–19 was the third leading cause 

of death in the United States, trailing 

only heart disease and cancer (Ortaliza 

et al., August 27, 2021). By September 

20, 2021, COVID–19 had killed as many 

Americans as the 1918–1919 flu 

pandemic (Johnson, September 20, 

2021). 

While the Healthcare ETS addresses 

the risk of illness and death from 


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COVID–19 as the SARS–CoV–2 virus 

continues to change over time, it does 

not specifically address the increases in 

infectiousness and transmission, and 

the potentially more severe health 

effects, related to the Delta variant. The 

rapid rise to predominance of the Delta 

variant in the U.S. occurred shortly after 

the ETS was published. At this time, the 

widespread prevalence of the Delta 

variant and its increased 

transmissibility have resulted in 

increased risk of exposure and disease 

relative to the previously-dominant 

strains of the SARS–CoV–2 virus. 

Adding to the information covered in 

the Healthcare ETS, the following 

sections provide a brief review of 

SARS–CoV–2 and describe the 

characteristics of the Delta variant that 

are different from previous versions of 

SARS–CoV–2 and have changed the 

risks posed by COVID–19. The agency 

specifically references the material 

presented in the Healthcare ETS, which 

is still relevant to this analysis, to 

support OSHA’s finding of grave danger. 

Taken together, the information 

available to OSHA demonstrates that 

SARS–CoV–2 poses a grave danger to 

unvaccinated workers across all 

industry sectors. 

a. Variants of SARS–CoV–2 

Viral mutations have been a serious 

concern of scientists, public health 

experts, and policymakers from the 

beginning of the COVID–19 pandemic. 

Viral mutations can affect how a virus 

interacts with a cell—altering the virus’s 

transmissibility, infection severity, and 

sensitivity to vaccines. The U.S. 

government’s SARS–CoV–2 Interagency 

Group has a variant classification 

scheme that defines four classes of 

SARS–CoV–2 variants: Variants Being 

Monitored (VBM), Variants of Interest 

(VOI), Variants of Concern (VOC), and 

Variants of High Consequence (VOHC). 

These variant designations are based on 

their ‘‘proportions at the national and 

regional levels and the potential or 

known impact of the constellation of 

mutations on the effectiveness of 

medical countermeasures, severity of 

disease, and ability to spread from 

person to person’’ (CDC, October 4, 

2021), with VOIs considered less serious 

than VOCs and VOCs considered less 

serious than VOHCs. As of early October 

2021, the CDC was monitoring 10 

VBMs—Alpha (B.1.1.7, Q.1–Q.8), Beta 

(B.1.351, B.1.351.2, B.1.351.3), Gamma 

(P.1, P.1.1, P.1.2), Epsilon (B.1.427 and 

B.1.429), Eta (B.1.525), Iota (B.1.526), 

Kappa (B.1.617.1), B.1.617.3, Mu 

(B.1.621, B.1.621.1), and Zeta (P.2)—and 

one VOC—Delta (B.1.617.2 and AY.1 

sublineages)—in the U.S. (CDC, October 

4, 2021). CDC defines a VOC as ‘‘[a] 

variant for which there is evidence of an 

increase in transmissibility, more severe 

disease (e.g., increased hospitalizations 

or deaths), significant reduction in 

neutralization by antibodies generated 

during previous infection or 

vaccination, reduced effectiveness of 

treatments or vaccines, or diagnostic 

detection failures’’ (CDC, October 4, 

2021). 

While the proportions of SARS–CoV– 

2 variants in the United States have 

shifted over time (CDC, May 24, 2021c; 

CDC, October 18, 2021—Variant 

Proportions, July through October 2021), 

the primary variant that drove COVID– 

19 transmission in the late Winter and 

Spring of 2021 was the Alpha variant. 

The CDC noted that Alpha is associated 

with an increase in transmission, as 

well as potentially increased incidences 

of hospitalization and death, compared 

to the predominant variants before its 

emergence (CDC, October 4, 2021; 

Pascall et al., August 24, 2021; Julin et 

al., September 22, 2021). As Alpha 

transmission subsided in the United 

States during the late Spring and early 

Summer of 2021, Delta emerged and 

quickly became the predominant variant 

in the U.S. by July 3, 2021 (CDC, 

October 18, 2021—Variant Proportions, 

July through October 2021). Delta now 

accounts for more than 99% of 

circulating virus nationwide (CDC, 

October 18, 2021—Variant Proportions, 

July through October 2021). 

FDA authorized and approved 

COVID–19 vaccines currently work well 

against all of these variants; however, 

there are differences in various variants’ 

ability to spread and the likelihood of 

infection to cause severe illness. Data on 

the Beta and Gamma variants do not 

indicate that infections from these 

variants caused more severe illness or 

death than other VOCs. Data on the 

Alpha variant does indicate its ability to 

cause more severe illness and death in 

infected individuals. And some data on 

the Delta variant suggests that the Delta 

variant may cause more severe illness 

than previous variants, including Alpha, 

in unvaccinated individuals (CDC, 

October 4, 2021). 

The emergence of the Delta variant, 

along with other VOCs, has resulted in 

a more deadly pandemic (Fisman and 

Tuite, July 12, 2021). While the Delta 

variant is the most transmissible SARS– 

CoV–2 variant to date, the possibility 

remains for the rise of future VOCs, and 

even more dangerous VOHCs, as the 

virus continues to spread and mutate. 

Inadequate vaccination rates and the 

abundance of transmission create an 

environment that can foster the 

development of new variants that could 

be similarly, or even more, disruptive 

(Liu and Rocklov, August, 4, 2021). In 

this context, it is critical that OSHA 

address the grave danger from COVID– 

19 that unvaccinated workers are 

currently facing by requiring 

vaccination and the other measures 

included in this rule, in order to 

significantly slow the transmission of 

COVID–19 in workers and workplaces 

and mitigate the rise of future variants. 

b. Transmission 

SARS–CoV–2 is a highly 

transmissible virus, regardless of 

variant. Since the first case was detected 

in the U.S., there have been close to 45 

million reported cases of COVID–19, 

affecting every state and territory, with 

thousands more infected each day (CDC, 

October 18, 2021—Cumulative US 

Cases), and some indication that these 

numbers continue to underestimate the 

full burden of disease (CDC, July 27, 

2021). According to the CDC, the 

primary way the SARS–CoV–2 virus 

spreads from an infected person to 

others is through the respiratory 

droplets that are produced when an 

infected person coughs, sneezes, sings, 

talks, or breathes (CDC, May 7, 2021). 

Infection could then occur when 

another person breathes in the virus. 

Most commonly this occurs when 

people are in close contact with one 

another in indoor spaces (within 

approximately six feet for at least fifteen 

minutes) (CDC, August 13, 2021). 

Additionally, airborne transmission may 

occur in indoor spaces without adequate 

ventilation where small respiratory 

particles are able to remain suspended 

in the air and accumulate (CDC, May 7, 

2021; Fennelly, July 24, 2020). While 

scientists’ understanding of the Delta 

variant’s virology is evolving and 

remains at the frontier of science, 

current data shows that the routes of 

transmission remain the same for all 

currently-identified SARS–CoV–2 

variants. In addition, all variants can be 

transmitted by people who are presymptomatic (i.e., people who are 

infected but do not yet feel sick) or 

asymptomatic (i.e., people who are 

infected but never feel any symptoms of 

COVID–19), as well as those who are 

symptomatic. Pre-symptomatic and 

asymptomatic transmission continue to 

pose serious challenges to containing 

the spread of COVID–19. For more 

extensive information on transmission 

routes, as well as pre-symptomatic and 

asymptomatic transmission, see the 

preamble to the Healthcare ETS (86 FR 


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7This adoption includes the citations in the 

referenced section of the Healthcare ETS, which are 

also included in the docket for this ETS. 

8Risk of death is based on averages from reported 

CDC data. Risks of hospitalization and death are 

much higher in unvaccinated individuals, as 

discussed further in Grave Danger, Section III.A.IV. 

Vaccines Effectively Reduce Severe Health 

Outcomes from and Transmission of SARS–CoV–2. 

9This adoption includes the citations in the 

referenced section of the Healthcare ETS, which are 

also included in the docket for this ETS. 

32392–32396), which is hereby 

included in the record of this ETS.7

The Delta variant is transmitted from 

infectious individuals via the same 

routes as previous variants, but is much 

more transmissible. Specifically, Delta 

differs from previous dominant variants 

of SARS–CoV–2 in terms of the 

amplification of viral particles expelled 

from infected individuals. Testing of 

Delta-infected individuals indicates that 

their viral loads are—on average— 

approximately 1,000x greater than those 

of the SARS–CoV–2 variants from the 

first COVID–19 wave in early 2020. This 

finding suggests much faster replication 

of viral particles during early infection 

with the Delta variant, resulting in 

greater infectiousness (contagiousness) 

when compared to earlier versions of 

SARS–CoV–2 (Li et al., July 12, 2021). 

The transmissibility of viruses is 

measured in part by the average number 

of subsequently-infected people (or 

secondary cases) that are expected to 

occur from each existing case (often 

referred to as R0). Several comparisons 

of the transmissibility of the initial 

SARS–CoV–2 variants to the Delta 

variant have shown that Delta is 

approximately twice as transmissible 

(contagious) as previous versions of 

SARS–CoV–2 (CDC, August 26, 2021; 

Riou and Althaus, January 30, 2020; Li 

et al., July 12, 2021; Liu and Rocklov, 

August, 4, 2021), likely the result of 

higher initial viral loads during the presymptomatic phase (Li et al., July 12, 

2021). In addition, as described further 

below, data on Delta shows that both 

unvaccinated and vaccinated 

individuals are more likely to transmit 

Delta than previous variants (Liu and 

Rocklov, August, 4, 2021; Eyre et al., 

September 29, 2021), making it 

especially dangerous to those who 

remain unvaccinated. 

c. Health Effects 

COVID–19 infections can lead to 

death. As reported in the Healthcare 

ETS, by May 24, 2021, there had been 

587,432 deaths and 32,947,548 million 

infections in the U.S. alone (CDC, May 

24, 2021a; CDC, May 24, 2021b). At that 

point in the pandemic, 1.8 out of every 

1,000 people in the U.S. had died from 

COVID–19 (CDC, May 24, 2021a). Since 

then, reported cases have increased to 

44,857,861 and the number of deaths 

has increased to 723,205 (CDC, October 

18, 2021– Cumulative US Cases; 

Cumulative US Deaths). By September 

2021, an astounding 1 in 500 Americans 

had died from COVID–19 (Keating, 

September 15, 2021). Updated mortality 

data 8 currently indicate that people of 

working age (18–64 years old) now have 

a 1 in 202 chance of dying when they 

contract the disease, with the risk much 

higher (1 in 72) for those aged 50–64 

(CDC, October 18, 2021—Demographic 

Trends, Cases by Age Group; CDC, 

October 18, 2021—Demographic Trends, 

Deaths by Age Group). For a more indepth description of the health effects 

resulting from SARS–CoV–2 infection, 

see the preamble to the Healthcare ETS 

(86 FR 32383–32392), which is hereby 

included in the record of this ETS.9

Apart from fatal cases, COVID–19 can 

cause serious illness, including longlasting effects on health. Many patients 

who become ill with COVID–19 require 

hospitalization. Indeed, updated CDC 

hospitalization and mortality data 

indicate that working age Americans 

(18–64 years old) now have a 1 in 14 

chance of hospitalization when infected 

with COVID–19 (CDC, October 18, 

2021—Demographic Trends, Cases by 

Age; Total Hospitalizations, by Age). 

Those who are hospitalized frequently 

need supplemental oxygen and 

treatment for the disease’s most 

common complications, which include 

pneumonia, respiratory failure, acute 

respiratory distress syndrome (ARDS), 

acute kidney injury, sepsis, myocardial 

injury, arrhythmias, and blood clots. 

One study, which included 35,502 

inpatients nationwide, determined that 

the median length of hospital stay was 

6 days, unless the cases required ICU 

treatment. For those cases, ICU stays 

were on median 5 days in addition to 

the time spent hospitalized outside of 

the ICU (Rosenthal et al., December 10, 

2020). Another study that assessed 

hospital length of stay for COVID–19 

patients in England estimated that a 

non-ICU hospital stay averaged between 

8 and 9 days, but those estimates ranged 

from approximately 12 to 18 days when 

patients were admitted to the ICU 

(Vekaria et al., July 22, 2021). Moreover, 

given that SARS–CoV–2 is still a novel 

virus, the severity of long-term health 

effects—such as ‘‘post-COVID 

conditions’’—are not yet fully 

understood. 

Many members of the workforce are at 

increased risk of death and severe 

disease from COVID–19 because of their 

age or pre-existing health conditions. 

The comorbidities that further 

exacerbate COVID–19 infections are 

common among adults of working age in 

the U.S. For instance, 46.1% of 

individuals with cancer are in the 20– 

64 year old age range (NCI, April 29, 

2015), and over 40% of working age 

adults are obese (Hales et al., February 

2020). Disease severity is also likely 

exacerbated by long-standing healthcare 

inequities experienced by members of 

many racial and economic 

demographics (CDC, April 19, 2021). 

Recent data suggests that Delta variant 

infections may result in even more 

severe illness and a higher frequency of 

death than previous COVID–19 variants 

due to Delta’s increased transmissibility, 

virulence, and immune escape (Fisman 

and Tuite, July 12, 2021). Symptomatic 

Delta variant infections do occur in fully 

vaccinated people (Mlcochova et al., 

June 22, 2021; Musser et al., July 22, 

2021); however, as reported by the CDC 

(CDC, August 26, 2021), the vast 

majority of the continuing instances of 

severe and fatal COVID–19 infections 

are occurring in unvaccinated persons 

(discussed further in Grave Danger, 

Section III.A.IV. Vaccines Effectively 

Reduce Severe Outcomes from and 

Transmission of SARS–CoV–2). An 

assessment of Delta-related hospital 

admissions in Scotland found that 

hospitalizations were approximately 

doubled in patients with the Delta 

variant when compared to the Alpha 

variant (Sheikh et al., June 4, 2021). A 

similar study conducted using a 

retrospective cohort in Ontario, Canada 

compared the virulence of novel SARS– 

CoV–2 variants and found that the 

incidences of hospitalization, ICU 

admission, and death were more 

pronounced with the Delta variant than 

any other SARS–CoV–2 variant (Fisman 

and Tuite, July 12, 2021). A large 

national cohort study that included all 

Alpha and Delta SARS–CoV–2 patients 

in England between March 29 and May 

23, 2021 found a ‘‘higher hospital 

admission or emergency care attendance 

risk for patients with COVID–19 

infected with the Delta variant 

compared with the Alpha variant,’’ 

suggesting that Delta outbreaks— 

especially amongst unvaccinated 

populations—may lead to more severe 

health consequences and an equivalent 

or greater burden on healthcare services 

than the Alpha variant (Twohig et al., 

August 27, 2021). However, one more 

recent study examining data from 

several U.S. states demonstrated a 

significant increase in hospitalization 

from the pre-Delta to the Delta period, 

which may be related to increased 

transmissibility of Delta rather than 


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10OSHA did not make findings based solely on 

non-peer-reviewed sources such as news articles, 

but the agency found that those sources can 

sometimes provide useful information when 

considered with more robust sources. 

more severe health outcomes (Taylor et 

al., October 22, 2021). 

III. Impact on the Workplace 

SARS–CoV–2 is readily transmissible 

in workplaces because they are areas 

where multiple people come into 

contact with one another, often for 

extended periods of time. When 

employees report to their workplace, 

they may regularly come into contact 

with co-workers, the public, delivery 

people, patients, and any other people 

who enter the workplace. Workplace 

factors that exacerbate the risk of 

transmission of SARS–CoV–2 include 

working in indoor settings, working in 

poorly-ventilated areas, and spending 

hours in close proximity with others. 

Full-time employees typically spend 8 

hours or more at work each shift, more 

time than they spend anywhere else but 

where they live. Employees work in 

proximity to others in workplaces that 

were not originally designed to keep 

people six feet away from other people 

and that may make it difficult for 

employees to perform work tasks while 

maintaining a six-foot distance from 

others. Even in the cases where workers 

can do most of their work from, for 

example, a private office within a 

workplace, they share common areas 

like hallways, restrooms, lunch rooms 

and meeting rooms. Furthermore, many 

work areas are poorly ventilated (Allen 

and Ibrahim, May 25, 2021; Lewis, 

March 30, 2021). An additional factor 

that exacerbates the risk of transmission 

of SARS–CoV–2 is interacting with or 

caring for people with suspected or 

confirmed COVID–19; this was a 

primary driver of OSHA’s determination 

of grave danger for healthcare workers 

in the Healthcare ETS (see 86 FR 32381– 

32383). In recent weeks, the majority of 

states in the U.S. have experienced what 

CDC defines as ‘‘high or substantial 

community transmission,’’ indicating 

that there is a clear risk of the virus 

being introduced into and circulating in 

workplaces (CDC, October 18, 2021— 

Community Transmission Rates). 

Although COVID–19 is not 

exclusively an occupational disease, it 

is evident from research accrued since 

the beginning of the pandemic that 

SARS–CoV–2 transmission can and 

does occur in workplaces, affecting 

employees and their lives, health, and 

livelihoods. This continues to be true 

for the Delta variant, with its increased 

transmissibility and potentially more 

severe health effects. This section 

describes some of the clusters, 

outbreaks, and other occurrences of 

workplace COVID–19 cases that 

government agencies, researchers, and 

journalists have described, and the 

widespread effects of SARS–CoV–2 in 

industry sectors across the national 

economy. While the focus is on more 

recent data reflecting the impact of the 

Delta variant, evidence of workplace 

transmission that occurred prior to the 

emergence of the Delta variant is also 

presented. 

The workplace-based clusters 

described below provide evidence that 

workplaces in a wide range of industries 

have been affected by COVID–19, that 

many employees face exposure to 

infected people in their workspaces, and 

that SARS–CoV–2 transmission is 

occurring in the workplace, including 

during the recent period where the Delta 

variant has predominated. Although the 

presence of a cluster on its own does not 

necessarily establish that the cluster is 

work-related (i.e., a result of 

transmission at the worksite), many 

state investigation reports and 

published studies provide evidence that 

transmission is work related by 

documenting that infections at a 

workplace occurred within 14-days (the 

incubation period for the virus) of each 

other and ruling out the possibility that 

transmission occurred outside the 

workplace. In addition, the information 

below demonstrates that exposures to 

SARS–CoV–2 happen regularly in a 

wide variety of different types of 

workplaces. 

The basis for OSHA’s grave danger 

finding is that employees can be 

exposed to the virus in almost any work 

setting; that exposure to SARS–CoV–2 

can lead to infection (CDC, September 

21, 2021); and that infection in turn can 

cause death or serious impairment of 

health, especially in those who are 

unvaccinated (see Section III.A.IV. 

Vaccines Effectively Reduce Severe 

Health Outcomes from and 

Transmission of SARS–CoV–2). The 

information described in this section 

supports OSHA’s finding that 

employees who work in spaces shared 

by others are at risk of exposure to 

SARS–CoV–2. The degree of risk from 

droplet-based transmission may vary 

based on the duration of close proximity 

to a person infected with SARS–CoV–2, 

including the Delta variant, but the 

simple and brief act of sneezing, 

coughing, talking, or even breathing can 

significantly increase the risk of 

transmission if controls are not in place. 

SARS–CoV–2, including the Delta 

variant, might also be spread through 

airborne particles under certain 

conditions, particularly in enclosed 

settings with inadequate ventilation, 

which are common characteristics of 

some workplaces. 

The peer-reviewed scientific journal 

articles, government reports, and news 

articles described below establish the 

widespread prevalence of COVID–19 

among employees, beginning with a 

description of the recent impact from 

the Delta variant. OSHA’s findings are 

based primarily on the evidence from 

peer-reviewed scientific journal articles 

and government reports. However, peer 

review for scientific journal articles and 

the assembly of information for 

government reports and other official 

sources of information take time, and 

therefore those sources do not always 

reflect the most up-to-date information 

(Chan et al., December 14, 2010). In 

addition, while state and local health 

departments can report workplace 

outbreaks to CDC, the agency does not 

provide summary statistics by 

workplace so that those outbreaks can 

be tracked on a national level. In the 

context of the COVID–19 pandemic, 

given the recent impacts due to the 

Delta variant and the emergence of new 

information on a daily basis, it is critical 

for OSHA to rely on the most up-to-date 

information available. Therefore, OSHA 

has occasionally supplemented peerreviewed data and government reports 

with additional information on 

occupational outbreaks contained in 

other sources of media (e.g., 

newspapers, digital media, and 

information submitted to or obtained by 

private organizations).10 The reported 

information from other sources can 

provide further evidence of the impact 

of an emerging and changing disease, 

especially for industries that are not 

well represented in the peer-reviewed 

scientific literature. Together, these 

sources of information represent the 

best available evidence of the impact on 

employees of the pandemic thus far. 

The information described herein 

illustrates a significant number of 

infections among employees in a variety 

of industries, with virtually every state 

continuing to experience what CDC 

defines as high or substantial 

community transmission related to the 

recent surge of the Delta variant. The 

industries and types of workplaces 

described are not the only ones in 

which a grave danger exists. The science 

of transmission does not vary by 

industry or by type of workplace. OSHA 

therefore expects transmission to occur 

in diverse workplaces all across the 

country (see Dry Color Mfrs. Ass’n, Inc. 

v. Dep’t of Labor, 486 F.2d 98, 102 n.3 

(3d Cir. 1973) (holding that when OSHA 

determines a substance poses a grave 


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11NCDHHS identifies a ‘‘workplace’’ category in 

their report (e.g., agriculture, construction), but 

OSHA includes other settings where employees 

would be present (e.g., retail, restaurants, childcare, 

healthcare). 

danger to workers, OSHA can assume an 

exposure to a grave danger exists 

wherever that substance is present in a 

workplace)). In addition, the severity of 

COVID–19 does not depend on where 

an employee is infected; an employee 

exposed to SARS–CoV–2 might die 

whether exposed while working at a 

meat packing facility, a retail 

establishment, or an office (see Grave 

Danger, Section III.A.V.b. Employees 

Who Work Exclusively Outside, below, 

for a discussion of the risk of exposure 

in outdoor workplaces). 

a. General Impact on Workers 

Data on SARS–CoV–2 infections, 

illnesses, and deaths among employees 

in general industry, agriculture, 

construction, and maritime support 

OSHA’s finding that COVID–19 poses a 

grave danger to employees in these 

sectors across the U.S. economy. This 

section summarizes studies and reports 

of COVID–19 illness and fatalities in a 

wide range of workplaces across those 

industry sectors. Not all workplace 

settings are discussed; nor is the data 

available to do so. However, the 

characteristics of the various affected 

workplaces—such as indoor work 

settings; contact with coworkers, clients, 

or members of the public; and sharing 

space with others for prolonged periods 

of time—indicate that exposures to 

SARS–CoV–2 are occurring in a wide 

variety of work settings across all 

industries. Therefore, most employees 

who work in the presence of other 

people (e.g., co-workers, customers, 

visitors) need to be protected. 

While there is no comprehensive 

source of nationwide workplace 

infection data, reports from states and 

communities on outbreaks related to 

workplaces provide key, up-to-date data 

that illustrate the likelihood of 

employee exposure to SARS–CoV–2 at 

workplaces throughout the U.S. OSHA 

identified a number of recent reports 

from various regions of the country that 

together demonstrate the impact that 

SARS–CoV–2 can have on a variety of 

workplaces, including in service 

industries (e.g., restaurants, grocery and 

other retail stores, fitness centers, 

hospitality, casinos, salons), corrections, 

warehousing, childcare, schools, offices, 

homeless shelters, transportation, mail/ 

shipping/delivery services, cleaning 

services, emergency services/response, 

waste management, construction, 

agriculture, food packaging/processing, 

and healthcare. Deaths are reported in 

many studies performed prior to the 

emergence of the Delta variant but, 

because the Delta outbreak is so recent 

and deaths can occur weeks after 

infection, the number of deaths from 

recent infections might be 

underestimated. Some of the reports 

include cumulative data representing 

various phases of the pandemic, 

beginning prior to the availability of 

vaccines and continuing through the 

recent surge of the Delta variant. In 

addition, some studies report 

investigations of recent outbreaks, 

which provide insight on the impact of 

the Delta variant as well as impacts 

associated with the current vaccination 

status of workers. 

The Washington State Department of 

Health (WSDH) reports outbreaks 

occurring in non-healthcare workplaces 

(WSDH, September 8, 2021). In nonhealthcare workplaces, outbreaks are 

defined as two or more laboratory 

confirmed cases of COVID–19, with at 

least two cases reporting symptom onset 

within 14 days of each other, and 

plausible epidemiological evidence of 

transmission in a shared location other 

than a household. As of September 4, 

2021, WSDH reported 5,247 outbreaks 

in approximately 40 different types of 

non-healthcare work settings. During 

the week of August 29 through 

September 4, 2021, WSDH identified 

137 separate workplace outbreaks. The 

types of non-medical workplace settings 

that represented more than 5% of the 

total outbreaks during that week 

included food service/restaurants, 

childcare, schools, retail, grocery, and 

shelter/homeless services. Other types 

of non-healthcare settings where 

outbreaks occurred recently included 

non-food and food manufacturing, 

construction, professional services/ 

office based, agriculture/produce 

packing, transportation/shipping 

delivery, government agencies/facilities, 

leisure hospitality/recreation, 

corrections, utilities, warehousing, 

facility/domestic cleaning services, 

youth sports/activities, camps, and 

public safety. Over the course of the 

pandemic, outbreaks have also been 

observed at bars/nightclubs, hotels, and 

fishing/commercial seafood vessels. 

The Oregon Health Authority (OHA) 

publishes a weekly report detailing 

outbreaks directly related to work 

settings. OHA epidemiologists consider 

cases to be part of a workplace outbreak 

when clusters form with respect to 

space and time, within a plausible 

incubation period for the virus, and 

their investigation does not uncover an 

alternative source for the outbreak. For 

privacy reasons, OHA only reports 

outbreaks with 5 or more cases in 

workplaces with 30 or more people. 

OHA reported a total of 26,013 cases 

and 135 deaths related to workplace 

outbreaks as of September 1, 2021. As 

of September 1, 2021, OHA was 

investigating more than 124 active 

workplace outbreaks (OHA, September 

1, 2021). Those outbreaks occurred in a 

wide variety of industries including 

correctional facilities, emergency 

services, waste management, schools 

and child care, retail and grocery stores, 

restaurants, warehousing, agriculture, 

food processing/packaging, 

construction, healthcare, mail and 

delivery services, office locations, 

utilities, transportation, and others. 

Tennessee Department of Health was 

investigating 557 active COVID–19 

clusters as of September 8, 2021 (TDH, 

September 8, 2021). Clusters are defined 

as two or more laboratory confirmed 

COVID–19 cases linked to the same 

location or event that is not a household 

exposure. The clusters occurred in 13 

types of settings, 10 of which were 

workplace settings. Outbreaks at 

workplaces represented more than half 

of the total active outbreaks in the state 

at that time. Settings comprising more 

than 5% of total clusters included 

assisted care living facilities, nursing 

homes, and correctional facilities. Other 

types of workplaces where outbreaks 

occurred included bars, construction, 

farms, homeless shelters, and industrial 

settings. 

The North Carolina Department of 

Health and Human Services reports 

cumulative numbers of clusters, cases, 

and deaths for workers in poultry 

processing facilities (beginning in April 

of 2020) and other types of workplaces 

(beginning in May of 2020) (NCDHHS, 

August 30, 2021). Clusters are defined 

as a minimum of 5 cases with illness 

onset or initial positive results within a 

14-day period and plausible 

epidemiological linkage between the 

cases. Plausible epidemiological linkage 

means that multiple cases were in the 

same general setting during the same 

time period (e.g., same shift, same 

physical area) and that a more likely 

source of exposure is not identified (e.g., 

household contact or close contact to a 

confirmed case in another setting). 

During that time period of April/May 

2020 through August 30, 2021, 

workplaces 11 were associated with 

nearly 80% of the 1,969 clusters and 

27,097 cases observed and nearly 40% 

of the 167 deaths related to the clusters. 

Cumulative numbers of clusterassociated deaths were highest in meat 

and poultry processing (25 of 5,351 

cases), followed by healthcare (10 of 

1,036 cases), government services and 

manufacturing (5 of 1,048 cases and 5 of 


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1,856 cases, respectively), and 

restaurants and childcare (3 of 421 cases 

and 3 of 1,943 cases, respectively). 

Recently, in July of 2021, the number of 

cases associated with workplace clusters 

began increasing in several different 

types of work settings, including meat 

processing, manufacturing, retail, 

restaurants, childcare, schools, and 

higher education. 

Colorado Department of Public Health 

& Environment/Colorado State 

Emergency Operations Center (CDPHE/ 

CSEOC, September 8, 2021) reported 

5,584 resolved workplace-related 

outbreaks involving 40,156 employee 

cases and 79 employee deaths since 

May of 2020. The agency’s current 

investigations, as of September 8, 2021 

included 291 active outbreaks (not 

defined), with 2,865 staff cases 

(assumed to be cases in employees). The 

majority of active outbreaks were 

reported in childcare, schools, 

healthcare, and corrections. Active 

outbreaks were also reported in 

construction, retail, homeless shelters, 

casinos, restaurants, hotels, offices, law 

enforcement, manufacturing, delivery 

services, and warehouses. Other types of 

work settings that were affected in 

resolved outbreaks included 

warehouses, bars, government locations, 

waste management, utilities, salons, 

emergency services, meat processing/ 

packaging, and postal services. From 

June 21, 2021 (the date the healthcare 

ETS was published) through September 

8, 2021, 1,469 staff cases associated with 

outbreaks were reported, for an average 

of approximately 19 cases per day. 

Similar reporting is available from 

Louisiana’s Department of Health (LDH, 

August 24, 2021), with 1,347 outbreaks 

and 9,130 cases reported as of August 

24, 2021. LDH defines an outbreak as 2 

or more cases among unrelated 

individuals who visited a site within a 

14-day period. More than three quarters 

of outbreaks through that date were 

associated with workplaces. Workplace 

settings in Louisiana that experienced 

more than 5% of outbreaks included 

day care facilities, bars, restaurants, 

retail settings, industrial settings, and 

office spaces. Other types of workplace 

settings or industries where outbreaks 

occurred included casinos, gyms/fitness 

centers, banks, automotive services, 

construction, and ships/boats. 

In addition to the state data above, 

some published studies and government 

reports provide information on recent 

workplaces outbreaks. For example, 47 

people, including 3 of 11 staff members, 

23 gymnasts, and 21 household 

contacts, contracted COVID–19 from an 

outbreak linked to an Oklahoma 

gymnastics facility during April 15 

through May 3, 2021 (Dougherty et al., 

July 16, 2021). All 21 of the virus 

samples sequenced were determined to 

be the Delta variant. The majority of the 

infected individuals (85%) were 

unvaccinated. Infections were reported 

in 16 adults aged 20 years or older; two 

adults were hospitalized and one 

required intensive care. 

The state of Hawaii defines clusters as 

three or more confirmed or probable 

cases linked to a site or event within 14 

days, with no outside exposure of cases 

to each other (Hawaii State, August 19, 

2021). The state reported a COVID–19 

cluster in July associated with a concert 

at a bar that affected 16 people, 

including employees, band members, 

and concert attendees; infections also 

spread to 7 household members. Band 

members had performed while sick. 

Four of the initial 16 people and none 

of the household members who tested 

positive for COVID–19 were fully 

vaccinated. The concert cluster was 

linked to clusters at another workplace 

and another concert. The report lists 

additional clusters investigated in the 

two weeks prior to the report; those 

clusters were observed in workplace 

locations such as correctional facilities, 

bars and nightclubs, restaurants, 

construction/industrial sites, travel/ 

lodging/tourism, schools, food 

suppliers, and gyms. 

Additional evidence that employees 

are at risk of exposure to SARS–CoV–2 

in the workplace is available from 

published, peer-reviewed studies that 

were conducted before the Delta variant 

emerged. Those studies demonstrate 

that employees have been at risk of 

infection, illness, and death throughout 

the COVID–19 pandemic. Because the 

Delta variant is more transmissible and 

likely causes more severe disease than 

previous variants, there is even greater 

potential for unvaccinated employees to 

become seriously ill or die as a result of 

exposure to the Delta variant. 

Contreras et al. (July, 2021) examined 

workplace outbreaks (excluding 

healthcare settings, homelessness 

services, and emergency medical 

services) in Los Angeles county from 

March 19 through September 30, 2020. 

Workplace outbreaks were defined as 5 

or more suspected or laboratory 

confirmed COVID–19 cases (prior to 

May 29) or 3 or more laboratory 

confirmed cases (after May 29) 

occurring within 14 days. Nearly 60% of 

the 698 identified outbreaks occurred in 

three sectors—manufacturing (184, 

26.4%), retail trade (137, 19.6%), and 

transportation and warehousing (73, 

10.5%). Also notable were the 71 

outbreaks in the accommodation and 

food services industry, which 

represented 10.2% of the outbreaks. The 

study authors concluded that outbreaks 

were larger and lasted longer at facilities 

with more onsite staff. 

Outbreaks in Wisconsin from March 4 

through November 16, 2020 were also 

examined (Pray et al., January 29, 2021). 

Non-household outbreaks were defined 

as two or more confirmed COVID–19 

cases that occurred within 14 days in 

persons who attended the same facility 

or event and did not share a household. 

During the period from March 4 through 

November 16, 2020, the largest 

percentages of cases were associated 

with outbreaks in long-term care 

facilities (26.8% of cases), correctional 

facilities (14.9% of cases), and colleges 

or universities (15% of cases). Also 

notable were the substantial number of 

cases associated with outbreaks in food 

production or manufacturing facilities 

(including meat processing and 

warehousing; 14.5% of cases) and 

schools and childcare facilities (10.6% 

of cases). 

Bui et al. (August 17, 2020) analyzed 

data from the Utah Department of 

Health’s COVID–19 case surveillance 

system, which included data on 

workplace outbreaks. Outbreaks were 

defined as two or more laboratory 

confirmed cases occurring within a 14 

day period among coworkers in a 

common workplace (e.g., same facility). 

During the time period between March 

6 and June 5, 2020, 277 COVID–19 

outbreaks were reported, of which 210 

(76%) occurred in workplaces. The 210 

workplace outbreaks occurred in 15 of 

20 industry sectors, and the industry 

sectors of manufacturing (43 outbreaks, 

20%), construction (32 outbreaks, 15%), 

and wholesale trade (29 outbreaks, 14%) 

together represented nearly half of 

workplace outbreaks. Other sectors that 

represented more than 10% of total 

outbreaks were retail trade (28 

outbreaks, 13%) and accommodation 

and food services (25 outbreaks, 12%). 

Incidence rates of COVID–19 over the 

period of March 6 through June 5, 2020 

were 339/100,000 workers in 

manufacturing, 122/100,000 workers in 

construction, 377/100,000 workers in 

wholesale trade, 68/100,000 workers for 

retail trade, and 78/100,000 workers for 

accommodation and food services. For 

COVID–19 cases associated with 

workplace outbreaks in which 

hospitalization and severity status were 

known (1,382 and 1,155, respectively), 

the number in all sectors who were 

admitted to the hospital was 85 (6%) 

and the number with severe outcomes 

(intensive care unit admission, 

mechanical ventilation, or death) was 40 

(3%). 


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The impact of SARS–CoV–2 

exposures on employee infection, 

illness, and death has also been 

demonstrated in studies focusing on 

specific types of industries, such as 

those where employees have frequent 

contact with each other and the public 

(e.g., grocery stores, bars, fitness 

facilities, schools, and law enforcement/ 

corrections). For example, a study by 

Lan et al. (September 26, 2020) 

demonstrates the risk of infection in 

service industries. The cross-sectional 

study examined the risks of SARS–CoV– 

2 exposure and infection for employees 

in a Boston, Massachusetts-area retail 

grocery store market. The study tested 

104 grocery store employees, of whom 

20% (21 employees) were positive for 

COVID–19; 76% of confirmed cases did 

not have symptoms. After adjusting for 

gender, smoking, age, and the 

prevalence of COVID–19 in the 

employees’ residential communities, 

employees who had direct customer 

exposure (e.g., cashiers, sales associates, 

cart attendants) were 5.1 times more 

likely to have a positive test for COVID– 

19 than employees without direct faceto-face customer exposure (e.g., 

stockers, backroom, receiving and 

maintenance). The infection rate of 20% 

among all employees was significantly 

higher than the rate in the surrounding 

community. 

In February of 2021, an event at an 

Illinois bar that accommodates 

approximately 100 people resulted in a 

COVID–19 outbreak that affected 46 

people, including 3 (10%) staff 

members, 26 (90%) patrons, and 17 

secondary cases (Sami et al., April 9, 

2021). People at the event included an 

asymptomatic person diagnosed with 

COVID–19 on the previous day and 4 

symptomatic people who were later 

diagnosed with COVID–19. The 

outbreak resulted in a school closure 

and the hospitalization of a resident at 

a long-term care facility. 

In Minnesota, 47 COVID–19 outbreaks 

were detected at fitness facilities from 

August through November of 2020 

(Suhs et al., July 23, 2021). One 

outbreak at a fitness facility during 

October through November of 2020 

resulted in 23 COVID–19 cases 

including 5 (22%) employees and 18 

(78%) members. A genetic analysis of 

specimens from 3 employees and 10 

members identified 2 distinct genetic 

subclusters, indicating two distinct 

chains of transmission among members 

and employees. 

School-related outbreaks were 

examined from December 1, 2020 

through January 22, 2021 in eight public 

elementary schools of a Georgia school 

district (Gold et al., February 26, 2021). 

A COVID–19 case was determined to be 

school-related if (1) symptom onset or a 

positive test was consistent with the 

incubation period of the virus following 

contact with an index case or a schoolassociated case, (2) close contact 

occurred with the index case or schoolassociated case while that person was 

infected, and (3) no known contact 

occurred with an infected community or 

household contact in the two weeks 

prior to a positive test for COVID–19. 

The investigators identified nine 

clusters of three or more 

epidemiologically linked COVID–19 

cases that involved 13 educators and 32 

students in six of the eight elementary 

schools. Approximately half of the 

school-associated cases involved two 

clusters that began with probable 

transmission between educators, 

followed by educator to student 

transmission. Eighteen of 69 household 

members tested received positive 

results. 

A number of studies demonstrate the 

impact of COVID–19 in law enforcement 

and related fields such as corrections. 

For example, a study examining 

COVID–19 antibodies in employees 

from public service agencies in the New 

York City area from May through July of 

2020, found that 22.5% of participants 

had COVID–19 antibodies (Sami et al., 

March, 2021). The percentage of 

correctional officers found to have 

COVID–19 antibodies (39.2%) was the 

highest observed among all the 

occupations. The percentages of police 

dispatchers, traffic officers, security 

guards, and dispatchers found to have 

COVID–19 antibodies (29.8 to 37.3%) 

were among the highest levels observed 

in all the occupations. The study 

authors noted that those jobs involve 

frequent or close contact with the public 

or are done in places where employees 

work in close proximity to their 

coworkers. 

Wallace et al. (May 15, 2020) 

evaluated data on COVID–19 cases and 

deaths among correctional facility 

employees and inmates from January 21 

to April 21, 2020. Data were reported to 

CDC by 37 (69%) of 54 state and 

territorial health department 

jurisdictions. Of these 37 jurisdictions, 

32 (86%) reported at least one COVID– 

19 case from a correctional facility. Of 

the 420 facilities with a case, 221 (53%) 

reported cases only among staff 

members. In total, 4,893 COVID–19 

cases among incarcerated or detained 

persons and 2,778 cases among staff 

members were reported (total tested not 

provided). Among staff member cases, 

79 hospitalizations (3%) and 15 deaths 

(1%) were reported. The study authors 

noted that ‘‘correctional and detention 

facilities face challenges in controlling 

the spread of infectious diseases 

because of crowded, shared 

environments and potential 

introductions by staff members and new 

intakes.’’ 

Ward et al. (June 2021) analyzed 

COVID–19 prevalence among prisoners 

and staff in 45 states from March 31, 

2020 through November 4, 2020. During 

that time period, COVID–19 cases in 

staff were 3 to 5 times higher compared 

to the U.S. population. Average daily 

increases in cases were 42 per 100,000 

prison employees, 61 per 100,000 

prisoners, and 13 per 100,000 U.S. 

residents. On November 4, 2020, 

COVID–19 prevalence for prison staff 

was 9,316 cases per 100,000 employees, 

which was 3.2 times greater than 

prevalence in the U.S. population (2,900 

cases per 100,000). 

Kirbiyik et al. (November 6, 2020) 

analyzed movement through a networkinformed approach to identify likely 

high points of transmission within the 

Cook County Jail in Chicago, IL. At that 

facility, over 900 COVID–19 cases were 

reported across 10 housing divisions in 

13 buildings from March 1–April 30, 

2020. Staff members were required to 

report symptoms of COVID–19 

(probable cases) or receipt of a positive 

test result (confirmed cases). A total of 

2,041 staff members (77% of staff) were 

included in the network analysis 

because information was available about 

their shift and division assignments, 

and 198 (9.7%) of those staff members 

had COVID–19 during the two-month 

study period. Connections between staff 

members who had COVID–19 were 

higher than expected, suggesting likely 

transmission among staff members. 

Fewer connections than expected were 

observed among detained persons with 

SARS–CoV–2 infections, suggesting the 

effectiveness of medical isolation at 

reducing transmission. 

The Officer Down Memorial Page, 

which tracks police officer fatalities 

determined to be occupationally related, 

reported that the majority of officer 

deaths for 2021 (157 of 269) were 

related to COVID–19 (ODMP, September 

14, 2021). For the 269 officers who died, 

causes of death were not reported for 

each month, but the highest numbers of 

monthly deaths, 52 in January and 65 in 

August (compared to 16 to 34 deaths on 

other reported months), were consistent 

with the winter surge of COVID–19 and, 

more recently, the surge caused by the 

Delta variant. 

The risk of COVID–19 has also been 

examined in industries where 

employees have little contact with the 

public, such as construction, and food 

processing, and where most exposure to 


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Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Rules and Regulations 61415 

SARS–CoV–2 likely comes from other 

workers. Pasco et al. (October 29, 2020) 

examined the association between 

construction work during the COVID–19 

pandemic and community transmission 

and construction worker hospitalization 

rates in Austin, Texas from March 13 to 

August 20, 2020. A ‘‘Stay Home-Work 

Safe’’ order enacted on March 24, 2020, 

limited construction to only critical 

infrastructure and excluded commercial 

and residential work. One week later, 

the Texas governor lifted the restriction 

for essential workers and allowed all 

types of construction work to resume, 

while keeping the order in place for 

other workers. The authors found that 

resuming construction during the 

shelter-in-place order led to an increase 

in community transmission, an increase 

in hospitalizations among community 

members, and an increase in 

hospitalizations of construction 

workers. By mid-July, Austin Public 

Health identified at least 42 clusters (not 

defined) of COVID–19 cases in the 

construction industry; 515 individuals 

were hospitalized for COVID–19 

illnesses acquired as part of these 

clusters, and 77 of those reported 

working in construction. The study 

found that construction workers had a 

nearly 5-fold increased risk of 

hospitalization in central Texas 

compared with workers in other 

occupations. The authors’ model 

predicted that allowing unrestricted 

construction work would be associated 

with an increase in COVID–19 

hospitalization rates from 0.38 per 1,000 

residents to 1.5 per 1,000 residents 

overall, and from 0.22 per 1,000 

construction workers to 9.3 per 1,000 

construction workers for the 

construction industry specifically. The 

authors concluded that stringent 

workplace safety measures could 

significantly mitigate risks related to 

COVID–19 in the industry. 

The meat packing and processing 

industries and related agricultural and 

food processing sectors have also been 

impacted by COVID–19. Waltenburg et 

al. (January, 2021) reported COVID–19 

cases in employees from meat and 

poultry processing facilities in 31 states 

from March 1 through May 31, 2020. As 

reported in Table 2 of that report, 28,364 

employees in those facilities were 

confirmed to have COVID–19 by 

laboratory testing and 132 died. Among 

the 20 states that reported total numbers 

of employees, 11.4% of the workers 

were diagnosed with COVID–19 (with a 

range of 3.1 to 27.7% of workers in 

individual states). For states that 

reported at least one COVID–19-related 

death, the percentages of employees 

who died in each state ranged from 0.1 

to 2.4% of those with COVID–19. The 

authors found a high burden of disease 

in persons employed at these facilities 

who were racial or ethnic minorities. 

Higher incidence in these populations 

might be due to the likelihood of these 

employees working in areas in the plant 

where transmission risk is higher. 

Steinberg et al. (August 7, 2020) 

reported that attack rates (i.e., the 

number of individuals who are infected 

in comparison to the total number at 

risk) among production employees in 

the Cut (30.2%), Conversion (30.1%), 

and Harvest (29.4%) departments of a 

meat processing plant (where spacing 

between employees is less than 6 feet) 

were double that of salaried employees 

(14.8%) whose workstations had been 

modified to increase physical distancing 

from others. 

Waltenburg et al. (January, 2021) also 

evaluated COVID–19 incidence in food 

manufacturing and agricultural settings 

(e.g., manufacturing or farming 

involving fruits, vegetables, dairy, baked 

goods, eggs, prepared foods), as reported 

in 30 states from March through May 

2020. In food manufacturing and 

farming of fruits, vegetables, dairy, and 

other items, 742 workplaces were 

affected, including 8,978 infections and 

55 fatalities. For states that reported 

total numbers of employees, the 

proportion of employees who developed 

COVID–19 in each state ranged from 2.0 

to 43.5%. For states that reported at 

least one death, the percentages of 

deaths among cases ranged from 0.1 to 

3.8%. 

Porter et al. (April 30, 2021) reported 

that 13 COVID–19 outbreaks occurred at 

Alaska seafood processing facilities and 

vessels (both of which were described as 

high density workplaces) during the 

Summer and early Fall of 2020. The 13 

outbreaks involved 539 COVID–19 

cases, with 2–168 cases per outbreak. 

Attack rates in facilities and offshore 

vessels ranged from less than 5% to 

75%. Outbreaks were also reported in 

entry quarantine groups. Because of 

these outbreaks, it was determined that 

vaccination of these essential workers is 

important and requirements for COVID– 

19 prevention were updated to include 

smaller quarantine groups, serial testing, 

and testing before transfers from one 

facility or vessel to another. 

Finally, two published studies 

analyzed death records to determine 

how mortality rates among individuals 

in various types of workplaces had 

changed during the pandemic. Chen et 

al. (June 4, 2021) analyzed records of 

deaths occurring on or after January 1, 

2016 in California and found that 

mortality rates in working aged adults 

(18–65 years) increased 22% during the 

COVID–19 pandemic period of March 

through November 2020 compared to 

pre-pandemic periods. Relative to prepandemic periods, the groups of 

employees experiencing the highest, 

statistically significant increases in 

relative excess mortality were those in 

food/agriculture (39% increase), 

transportation/logistics (31% increase), 

facilities (23% increase), and 

manufacturing (24% increase). Other 

groups that also experienced excess, 

statistically significant mortality 

compared to pre-pandemic periods were 

health or emergency workers (17% 

increase), retail workers (21% increase), 

and government and community 

workers (17% increase). The study 

authors concluded that certain 

occupational sectors were impacted 

disproportionally by mortality during 

the pandemic and that essential work 

conducted in-person is a likely avenue 

of infection transmission. 

Hawkins et al. (January 10, 2021) 

examined death certificates of 

individuals who died in Massachusetts 

between March 1 and July 31, 2020. An 

age-adjusted mortality rate of 16.4 per 

100,000 employees was determined 

from 555 death certificates that had 

useable occupation information. 

Employees in 11 occupational groups 

had particularly high mortality rates: 

healthcare support; transportation and 

material moving; food preparation and 

serving; building and grounds cleaning 

and maintenance; production, 

construction and extraction; 

installation/maintenance/repair; 

protective services; personal care 

services; arts/design/entertainment; 

sports/media; and community and 

social services. The study authors noted 

that occupational groups expected to 

have frequent contact with sick people, 

close contact with the public, and jobs 

that are not practical to do from home 

had particularly elevated mortality 

rates. 

b. Healthcare Workers 

As explained in the Healthcare ETS, 

COVID–19 presents a grave danger to 

workers in all U.S. healthcare settings 

where people with COVID–19 are 

reasonably expected to be present (86 

FR 32381). Healthcare settings covered 

by the Healthcare ETS primarily include 

settings where people with suspected or 

confirmed COVID–19 are treated, 

exacerbating the risk present in most 

workplaces. To control the higher level 

of risk in those settings, OSHA 

determined that a suite of workplace 

controls was necessary to protect all 

employees, whether they are vaccinated 

or unvaccinated. As explained further 


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61416 Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Rules and Regulations 

below, OSHA now finds that 

unvaccinated healthcare workers in 

healthcare settings not covered by the 

Healthcare ETS are also at grave danger 

from exposure to SARS–CoV–2, just like 

unvaccinated workers in other 

industries. Data continue to be collected 

and reported for healthcare workers, 

and a small number of peer-reviewed 

studies demonstrate the potential 

impact of the Delta variant on 

healthcare workers. 

CDC continues to provide updates for 

COVID–19 cases and deaths among 

healthcare personnel. However, 

information on healthcare personnel 

status continues to be reported for only 

a fraction (18.91%) of total reported 

cases, and death status was reported for 

only 82.16% of healthcare personnel 

cases as of October 18, 2021 (CDC, 

October 18, 2021—Healthcare 

Personnel). Given incomplete reporting, 

the data from this source represent only 

a fraction of actual healthcare cases and 

deaths. Nevertheless, CDC reported 

666,707 healthcare personnel cases 

among the 6,754,306 reported cases that 

included information on healthcare 

personnel status (9.9%) and 2,229 

fatalities among the 547,769 cases that 

included death status (0.4%) for 

healthcare employees as of October 18, 

2021. This is a 26% increase in the 

number of cases and a 27% increase in 

the number of deaths since the May 24, 

2021 data reported in the ETS (CDC, 

October 18, 2021—Healthcare 

Personnel). The Delta variant is likely 

responsible for the majority of those 

deaths. No healthcare worker deaths 

were reported by CDC during the weeks 

of May 30 through June 13, 2021; 

however, as the Delta variant’s 

prevalence rose after June 20, healthcare 

worker deaths began increasing; they 

peaked during the period of August 15 

through September 12, 2021, when 34 to 

36 healthcare worker deaths were 

reported per week (CDC October 18, 

2021—Healthcare Personnel, Deaths by 

Week). Independent reporting by Kaiser 

Health News and The Guardian reported 

more than 3,600 fatalities in health care 

workers as of April 2021 (Spencer and 

Jewett, April 8, 2021). That number is 

expected to be higher at this time since 

the earlier figure did not include the 

most recent 5 months of the pandemic, 

which includes the period of Delta 

variant predominance. 

Published studies also demonstrate 

that healthcare workers, especially those 

who are unvaccinated, remain at risk of 

being infected with SARS–CoV–2 (see 

Section III.A.IV. Vaccines Effectively 

Reduce Severe Health Outcomes from 

and Transmission of SARS–CoV–2). 

Routine testing of health care personnel, 

first responders, and other frontline 

workers in eight U.S. locations in six 

states from December 14, 2020 through 

August 14, 2021 revealed 194 infections 

in 4,136 unvaccinated participants 

(89.7% symptomatic) and 34 infections 

in 2,976 fully vaccinated participants 

(80.6% symptomatic) (Fowlkes et al., 

August 27, 2021). During time periods 

when the Delta variant represented 

more than 50% of viruses sequenced, 19 

infections were detected in 488 

unvaccinated participants (94.7% 

symptomatic) and 24 infections were 

detected in 2,352 vaccinated 

participants (75% symptomatic). 

Monthly COVID–19 cases in 

healthcare workers were reported 

during the period from March 1 to July 

31, 2021 at the University of California 

San Diego (UCSD) health system, which 

is a healthcare provider that includes 

primary care services such as family 

medicine and pediatrics (Keehner et al., 

September 1, 2021; UCSD, 2021). During 

that time period, a total of 227 health 

care workers tested positive for COVID– 

19. One hundred and nine of 130 fully 

vaccinated workers who tested positive 

(83.8%) were symptomatic and 80 of 90 

unvaccinated workers (88.9%) were 

symptomatic; one unvaccinated person 

was hospitalized for COVID–19 

symptoms. By July of 2021, after the end 

of California’s mask mandate on June 15 

and after the Delta variant became 

dominant, the number of cases detected 

dramatically increased; the Delta variant 

accounted for more than 95% of SARS– 

CoV–2 viruses sequenced by the end of 

that month. During July of 2021, 

symptomatic infections were detected in 

94 of 16,492 fully vaccinated workers 

and 31 of 1,895 unvaccinated workers. 

Attack rates in July of 2021 were 5.7 per 

1,000 fully vaccinated workers and 16.4 

per 1,000 unvaccinated workers. 

In Finland, a Delta variant infection 

from a hospitalized patient spread 

throughout the hospital and to three 

primary care facilities, infecting 103 

individuals, including 45 healthcare 

workers (Hetema ̈ki et al., July 29, 2021). 

Twenty-six of the healthcare workers 

were infected at the hospital and 19 

were infected at primary care facilities. 

The affected health care workers 

included 28 with direct patient contact 

(11 who were not fully vaccinated), 8 

unvaccinated healthcare worker 

students, and 9 other staff, including 

hospital cleaners and secretaries (of 

whom 6 were not fully vaccinated). 

According to study authors, ‘‘There was 

high vaccine coverage among permanent 

staff in the central hospital, but lower 

for HCW in primary healthcare 

facilities. . .’’ Study authors estimated 

that vaccine effectiveness against the 

Delta variant in healthcare workers was 

approximately 88–91%, suggesting how 

much more extensive the outbreak 

could have been if a high percentage of 

healthcare workers were not fully 

vaccinated. 

In the UK, a Delta variant infection in 

a healthcare worker resulted in an 

outbreak in a care home that affected 16 

of 21 residents and 8 of 21 staff 

(Williams et al., July 8, 2021). One staff 

member was hospitalized. Attack rates 

were 35.7% in staff who were partially 

vaccinated (i.e., received their second 

dose of vaccine on the day that the 

index case was diagnosed with COVID– 

19 or had only received one vaccine 

dose) and 40% in staff who were not 

vaccinated. 

Recent news stories demonstrate that 

outbreaks affecting staff members are 

still occurring in U.S. healthcare 

facilities. An outbreak that began in 

August, 2021 at a Washington State 

nursing center resulted in infections in 

22 staff members and 52 residents. In an 

unrelated outbreak, a nursing facility in 

Hawaii reported infections in 24 

employees and 54 patients (Wingate, 

September 24, 2021). Vaccination rates 

were reported at 64.5% of residents and 

37.1% of staff in the Washington State 

facility and 91% of staff and more than 

80% of patients at the Hawaii facility. 

COVID–19 cases were also observed 

in staff at ambulatory care settings prior 

to emergence of the Delta variant. Over 

an 11-week period beginning on March 

20, 2020, 254 tests for SARS–CoV–2 

were performed on employees who had 

potential exposures at an outpatient 

urology center in New York State 

(Kapoor et al., 2020). Positive test rates 

in employees correlated with rates in 

New York State, declining over time, 

from 26.1% in the early stage to 7.3% 

in the late stage of the study. According 

to study authors, the positive test results 

coincided with the implementation of 

infection control procedures (e.g., 

symptom screening, masking, 

distancing, and hygiene). Positivity rates 

were similar in administrative and 

clinical staff and the study authors 

concluded that ‘‘administrative staff in 

an outpatient setting were equally—if 

not more—vulnerable to SARS–CoV–2 

transmission when compared with 

clinical staff who were more directly 

exposed to patients.’’ The study authors 

speculated that possible reasons for the 

findings were that clinical staff were 

more familiar with PPE and that 

administrative staff, especially in checkin and check-out points, tend to work 

close to each other. 


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Federal Register / Vol. 86, No. 212 / Friday, November 5, 2021 / Rules and Regulations 61417 

12A discussion of vaccination rates, as well as 

OSHA’s rationale for why vaccination is a critical 

means of protecting workers from the grave danger 

described in this section, can be found in Need for 

the ETS (Section III.B. of this preamble). 

13While mild cases of COVID–19 are included in 

the grave danger presented by COVID–19, as stated 

in the Healthcare ETS (see 86 FR 32382), OSHA is 

focusing on the most severe health effects, i.e., cases 

requiring hospitalization and cases resulting in 

death, in this new rulemaking effort in order to 

prevent the gravest of consequences to workers. 14This adoption includes the citations in the 

referenced section of the Healthcare ETS, which are 

also included in the docket for this ETS. 

c. Conclusion for Employee Impact 

The evidence described above 

provides examples of the impact that 

exposures from SARS–CoV–2, including 

those involving the Delta variant, have 

had on employees in general industry, 

agriculture, construction, maritime, and 

healthcare settings. It demonstrates that 

SARS–CoV–2 has spread to employees 

in these industries and, in many cases, 

infection was linked to exposure to 

infected persons at the worksite (WSDH, 

September 8, 2021; OHA, September 1, 

2021; TDH, September 8, 2021; 

NCDHHS, August 30, 2021; Hawaii 

State, August 19, 2021; Pray et al., 

January 29, 2021; Sami et al., April 9, 

2021; Suhs et al., July 23, 2021; Gold et 

al., February 26, 2021; Porter et al., 

April 30, 2021; Hetema ̈ki et al., July 29, 

2021; Williams et al., July 8, 2021). The 

documentation of so many workplace 

clusters suggests that exposures to 

SARS–CoV–2 occur regularly in 

workplaces where employees come into 

contact with others. This prevalence of 

clusters, combined with some evidence 

that many infections occurred within 

the 14-day incubation period for SARS– 

CoV–2 and that exposures to infected 

persons outside the workplace were 

frequently ruled out, supports the 

proposition that exposures to and 

transmission of SARS–CoV–2 occur 

frequently at work. Multiple studies 

demonstrate high rates of COVID 

infections, illnesses, and fatalities in the 

wide range of occupations that require 

frequent or prolonged close contact with 

other people, indoor work, and work in 

crowded and/or poorly ventilated areas 

The large numbers of infected 

employees suggest that SARS–CoV–2 is 

likely to be present in a wide variety of 

workplaces, placing unvaccinated 

workers at risk of serious and 

potentially fatal health effects. 

IV. Vaccines Effectively Reduce Severe 

Health Outcomes From and 

Transmission of SARS–CoV–2 

During the course of the SARS–CoV– 

2 pandemic, different variants have 

emerged with different characteristics 

that better enable transmission and 

potentially cause more severe outcomes. 

However, vaccines remain very effective 

at reducing the occurrence of COVID– 

19-related severe illness, disability and 

death.12 The Delta variant is more 

transmissible than previous variants, 

might cause more severe illness than 

previous variants in unvaccinated 

people, and has led to hospitalization of 

individuals in numbers similar to those 

of the November 2020 to February 2021 

surge. These changes in characteristics 

have provided a clearer realization of 

the continuing capacity for SARS–CoV– 

2 to present a grave danger to workers. 

However, it is well evident that even 

given these changed characteristics of 

Delta, serious disease and death 

continue to occur overwhelmingly in 

unvaccinated individuals while the 

vaccinated are afforded great 

protection.13

a. Impact of Vaccination on Severe 

Health Outcomes 

There are currently three vaccines 

that are approved or authorized for the 

prevention of COVID–19 in the U.S.: 

The Pfizer-BioNTech COVID–19 vaccine 

(FDA approved for ages 16 and above; 

authorized for ages 12 and above), the 

FDA-authorized Moderna COVID–19 

vaccine (authorized for ages 18 and 

above), and the FDA-authorized Janssen 

COVID–19 vaccine (also known as the 

Johnson & Johnson vaccine; authorized 

for ages 18 and above.) Pfizer-BioNTech 

and Moderna are mRNA vaccines that 

require two primary series doses 

administered three weeks and one 

month apart, respectively. Janssen is a 

viral vector vaccine administered as a 

single primary vaccination dose (CDC, 

September 15, 2021). The vaccines were 

shown to greatly exceed minimum 

efficacy thresholds in preventing 

COVID–19 in clinical trial participants 

(FDA, December 11, 2020; FDA, 

December 18, 2020; FDA, February 26, 

2021). Data from clinical trials for all 

three vaccines and observational studies 

for the two mRNA vaccines clearly 

establish that fully vaccinated persons 

have a greatly reduced risk of SARS– 

CoV–2 infection compared to 

unvaccinated individuals. This includes 

severe infections requiring 

hospitalization and those resulting in 

death. For more information about the 

effectiveness of vaccines as of late 

Spring 2021, see 86 FR 32397, which 

OSHA hereby includes in the record for 

this ETS.14

Vaccines remain highly effective 

against hospitalization and death. A 

study evaluating vaccine effectiveness at 

preventing hospitalization among those 

with SARS–CoV–2 infections in New 

York found that effectiveness did not 

change from May 3 to July 25, 2021 as 

the Alpha variant gave way to the Delta 

variant (91.9–96.2% range; Rosenberg et 

al., August 27, 2021). Grannis et al. used 

data from 187 hospitals in nine states 

from June to August 2021 to evaluate 

the efficacy of vaccines against 

hospitalization when Delta had emerged 

as the predominant variant causing 

SARS–CoV–2 infections (September 17, 

2021). This study found that vaccines 

were 89% effective at preventing 

hospitalization in individuals aged 18 to 

74. Similarly, vaccines were also found 

to be 89% effective in preventing 

hospitalization in a study collecting 

data from five Veteran Affairs Medical 

Centers from July 1 to August 6, 2021, 

a time when most transmission was 

attributed to the Delta variant (Bajema et 

al., September 10, 2021). 

Two other studies found that, 

although the level of protection 

provided by vaccination has decreased 

somewhat with the emergence of the 

Delta variant, vaccines continue to 

provide high levels of protection against 

hospitalization. In a U.S. study, 

researchers found that while the 

Moderna and Janssen vaccines mostly 

maintained their effectiveness at 

preventing hospitalization (going from 

93% to 92% after more than 120 days 

post-vaccination and 71% to 68% after 

more than 28 days post-vaccination, 

respectively) from March to August 

2021, the effectiveness of the PfizerBioNTech vaccine at preventing those 

severe outcomes decreased from 91% to 

77% after more than 120 days postvaccination (Self et al., September 17, 

2021). An Israeli study on infections 

documented between July 11 and July 

31, 2021 found a significant decrease in 

vaccine efficacy for the Pfizer-BioNTech 

vaccine against severe outcomes in 

relation to when an individual was 

vaccinated, but the absolute difference 

was much less than what was observed 

in the U.S. study (e.g., 98% effective for 

40–59 year olds vaccinated in March 

versus 94% effective for those in the 

same age group who were vaccinated in 

January) (Goldberg et al., August 30, 

2021). 

Vaccines also remain extremely 

effective at preventing death. A UK 

study evaluated the effectiveness of the 

Pfizer-BioNTech vaccine against death 

and found it to be 96.3% effective 

against the Alpha strain and 95.2% 

protective against the Delta strain 

(Andrews et al., September 21, 2021). 

Two Israeli studies, Haas et al. and 

Saciuk et al., performed during time 

periods where Alpha was predominant, 

found the Pfizer-BioNTech vaccine to be 

96.7% and 91.1% effective, 


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respectively, against death (Haas et al., 

May 15, 2021; Saciuk et al., June 25, 

2021). A California study found that the 

Moderna vaccine was 97.9% effective 

against death (Bruxvoort et al., 

September 2, 2021). A study on patients 

served by the Veterans Health 

Administration found that PfizerBioNTech and Moderna vaccines 

provided 99% effectiveness against 

death (Young-Xu et al., July 14, 2021). 

The risks of hospitalization and death 

appear to have increased for 

unvaccinated individuals since the 

Delta variant became a common source 

of infections. A study of Los Angeles 

County SARS–CoV–2 infections found 

that vaccinations reduced 

hospitalization risk by a factor of 10 on 

May 1, 2021, when the Alpha variant 

was dominant, but that the risk of 

hospitalization was even more greatly 

reduced (by a factor of 29.2) on July 25, 

2021, when the Delta variant was 

dominant (Griffin et al., August 27, 

2021). This difference suggests both that 

vaccines continue to provide a high 

level of protection against disease that 

results in hospitalization and that risk 

has increased for those who are 

unvaccinated. Similar increased risk for 

unvaccinated individuals was reported 

in a study that evaluated hospitalization 

and death data from 13 U.S. 

jurisdictions between June 20 and July 

17, 2021, a period when the Delta 

variant gained prominence (Scobie et 

al., September 17, 2021). For 

unvaccinated 18 to 49 year olds, the risk 

of hospitalization was 15.2 times 

greater, and the risk of death was 17.2 

times greater, than the risks for 

vaccinated people in the same age 

range. For unvaccinated 50 to 64 year 

olds, the risk of hospitalization was 10.9 

times greater, and the risk of death was 

17.9 times greater, than for those who 

are vaccinated. These studies illustrate 

that vaccination is an extremely 

effective control measure to minimize 

severe outcomes resulting from Delta 

variant infections. 

b. Impact of Vaccination on Infection 

and Transmission 

Vaccines continue to provide robust 

protection for vaccinated individuals 

against SARS–CoV–2 infections, even 

though several studies indicate that 

vaccine efficacy against infection may 

have decreased somewhat with the 

emergence of the Delta variant (Fowlkes 

et al., August 27, 2021; Rosenberg et al., 

August 27, 2021; Nanduri et al., August 

27, 2021; Seppala et al., September 2, 

2021; Bernal et al., August 12, 2021). 

For example, vaccination was observed 

to reduce the risk of infection by a factor 

of 8.4 on May 1, 2021, when the Alpha 

variant was predominant in Los Angeles 

county (Griffin et al., August 27, 2021). 

However, the level of protection had 

fallen to a factor of 4.9 by July 25, 2021, 

when Delta made up 88% of infections 

in the county. The findings from this 

study indicate that while vaccines 

maintain robust protection against 

severe outcomes, protection against 

infection has fallen with the increased 

circulation of the Delta variant. A 

broader study using data from 13 U.S. 

jurisdictions had similar findings, 

observing that the protection vaccines 

afforded against infection decreased 

from a factor of 11.1 (i.e., vaccinated 

people were 11.1 times less likely than 

unvaccinated people to become 

infected) between April 4 and June 19, 

2021, to a factor of 4.6 between June 20 

and July 17, 2021 (Scobie et al., 

September 17, 2021). An additional 

study noted, however, that the decrease 

in vaccine protectiveness against 

symptomatic infection from the Delta 

variant could be due to the waning of 

immunity specifically in older 

populations. Andrews et al. (September 

21, 2021) found that while the PfizerBioNTech vaccine effectiveness 

decreased from 94.1% to 67.4% in those 

65 years old and older, vaccine 

effectiveness for those 40 to 64 years old 

only decreased from 92.9% to 80.6%. 

While infections themselves do not 

normally result in serious illness for 

those who are vaccinated, evidence 

shows that vaccinated individuals who 

become infected with the Delta variant 

can transmit the disease more easily to 

others than with previous variants. This 

development poses a great concern for 

the unvaccinated, who generally do not 

have the protections against severe 

outcomes that vaccination affords. 

Before Delta, vaccinated individuals 

were shown to have lower estimated 

viral loads when infected than those 

who were unvaccinated, which 

suggested that infected vaccinated 

individuals were likely not a major 

concern for transmission (LevineTiefenbrun et al., March 29, 2021). 

Transmission studies prior to the 

emergence of Delta appear to bear this 

out. A Scottish study performed during 

a time period when the Alpha variant 

was predominant in the region, showed 

that a fully vaccinated individual was 

3.2 times less likely than an 

unvaccinated individual to transmit the 

virus to unvaccinated family members 

(Shah et al., September 10, 2021; 

supplementary appendix). A 

population-based study from the 

Netherlands found that vaccination 

decreased secondary transmission to 

household members from 31% to 11% 

(de Gier et al., August 5, 2021). 

Additionally, a study from the UK 

found that household transmission 

decreased by as much as 50% when the 

infected individual was vaccinated 

(Harris et al., June 23, 2021). 

More recent research suggests that the 

Delta variant may have reduced the 

level of protection vaccination affords 

against transmission of the virus to 

others, but still significantly reduces 

transmission risk in comparison to 

infected unvaccinated individuals. A 

UK study found that fully vaccinated 

individuals infected by the Delta variant 

are able to transmit the virus to both 

vaccinated and, to a greater degree, 

unvaccinated persons (Singanayagam et 

al., September 6, 2021). Still, the rate at 

which transmission to unvaccinated 

individuals occurred was nearly double 

the rate of transmission to vaccinated 

individuals (35.7% compared to 19.7%). 

Similarly, Eyre et al., (September 29, 

2021) found that during the 

predominance of Alpha, full vaccination 

with the Pfizer-BioNTech vaccines 

resulted in a significant reduction in 

transmission to others (an adjusted 

Odds Ratio (aOR) of 0.18, meaning that 

being unvaccinated increased the odds 

of transmission by over five times). With 

the rise of the Delta variant, that 

reduction in transmission to others was 

less than with the Alpha variant, but 

still significantly more than for 

unvaccinated individuals (aOR of 0.35, 

meaning that being unvaccinated 

increased the odds of transmission by 

almost three times). 

The greater ability for vaccinated 

individuals to transmit the Delta variant 

of SARS–CoV–2 to others (compared to 

previous variants) appears to be linked 

to the generation of similar viral loads 

(as estimated by Ct threshold) in the 

vaccinated compared to the 

unvaccinated (Ct threshold is the 

number of RT–PCR cycles that need to 

be run in order to amplify the RNA 

enough to be detected—fewer cycles 

means a greater initial amount of virus 

was collected) (Singanayagam et al., 

September 6, 2021). This observation 

has been made in several studies. A 

study from Israel observed that viral 

loads among those infected with the 

Delta variant were only decreased in 

people who had been vaccinated 

recently (within the past two months) or 

in those who had recently received a 

booster dose (Levine-Tiefenbrun et al., 

September 1, 2021). In a study of SARS– 

CoV–2 infections in Los Angeles 

County, performed when the Delta 

variant was predominant, vaccination 

status did not appear to affect the 

estimated viral loads, suggesting that 

infected individuals who are vaccinated 


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15The exclusion of vaccinated workers from this 

grave danger finding does not mean that vaccinated 

workers face no risk from exposure to SARS–CoV– 

2. The best available evidence clearly shows that 

vaccination provides great protection from infection 

and severe outcomes, but breakthrough infections 

do occur and vaccinated individuals can still 

transmit the virus to others. In some cases, the level 

of risk to vaccinated workers may even rise to the 

level of a significant risk, the standard OSHA must 

meet for promulgation of a permanent standard 

under section 6(b)(5) of the OSH Act (29 U.S.C. 

655(b)(5)). 

may be just as likely to transmit the 

virus (Griffin et al., August 27, 2021). 

Additionally, estimated viral loads did 

not appear to be significantly different 

with respect to vaccination status in a 

Wisconsin study (Riemersma et al., July 

31, 2021). Regardless of viral loads in 

vaccinated and unvaccinated 

individuals, the fact remains clear that 

unvaccinated people pose a higher risk 

of transmission to others than 

vaccinated people, simply because they 

are much more likely to get COVID–19 

in the first place. 

These studies, however, appear to 

overstate increases in transmission risk 

from vaccinated individuals related to 

the Delta variant. From May to July 

2021, UK researchers tested individuals 

at random to better characterize viral 

load estimates in people with 

asymptomatic as well as symptomatic 

infections; they found that vaccination 

was associated with a significantly 

lower estimated viral load (Elliott et al., 

September 10, 2021). This more 

comprehensive study (i.e., Elliott et al., 

September 10, 2021) may have been able 

to better characterize the course of 

infection and to incorporate vaccinated 

individuals whose viral loads were 

decreasing quickly. The findings in 

Elliott et al. are consistent with studies 

observing that viral load may fall more 

quickly in vaccinated individuals, 

resulting in a shorter infectious period 

and possibly fewer transmission events 

(Chia et al., July 31, 2021; Eyre et al., 

September 29, 2021). 

c. Conclusion for the Impact of Vaccines 

The studies discussed above indicate 

that vaccines continue to effectively 

protect vaccinated individuals against 

SARS–CoV–2 infections, while the risk 

of infection, hospitalization, and death 

increased among unvaccinated people 

as the Delta variant became 

predominant in the U.S. The Delta 

variant is even more dangerous to 

unvaccinated individuals than previous 

variants because of the higher 

transmission potential from both 

unvaccinated and vaccinated people. 

Because unvaccinated individuals are at 

much higher risk of severe health 

outcomes from infection with SARS– 

CoV–2, and also pose a greater 

transmission risk to those around them, 

it is critical to assure that as many 

people as possible are fully vaccinated 

in order to prevent transmission at 

work. 

V. Coverage of OSHA’s Grave Danger 

Finding 

Based on the information discussed 

above, OSHA finds that many 

unvaccinated workers across the U.S. 

economy are facing a grave danger of 

severe health effects or death from 

exposure to SARS–CoV–2. Fully 

vaccinated workers are not included in 

this grave danger finding because, as 

described throughout this section, those 

who are fully vaccinated are much 

better protected from the effects of 

SARS–CoV–2 and, in particular, the 

most severe effects, than are those who 

are unvaccinated.15 Beyond that, 

OSHA’s grave danger determination 

exempts several categories of workers 

based on characteristics of their work or 

workplace: (1) Workers who do not 

report to a workplace where other 

individuals are present or who telework 

from home; and (2) workers who 

perform their work exclusively 

outdoors. The basis for these 

exemptions is explained below. In this 

section, OSHA also addresses the basis 

for OSHA’s grave danger finding for 

workers who are unvaccinated yet had 

a prior COVID–19 infection, and 

explains the Agency’s more nuanced 

grave danger finding in the healthcare 

industry. 

a. Employees Who Telework and 

Employees Who Do Not Report to a 

Workplace Where Other People Are 

Present. 

Employees who report to workplaces 

where no other people are present face 

no grave danger from occupational 

exposure to COVID–19 because such 

exposure requires the presence of other 

people. For those who work from their 

homes, or from workplaces where no 

other people are present (such as a 

remote worksite), the chances of being 

exposed to SARS–CoV–2 through a 

work activity are negligible. Therefore, 

OSHA is exempting those workers who 

do not come into contact with others for 

work purposes from its grave danger 

finding as well as the scope of the ETS 

(for more information, see the Summary 

and Explanation for Scope and 

Application, Section VI.B. of this 

preamble). 

b. Employees Who Work Exclusively 

Outside 

Employees who work exclusively 

outside face a much lower risk of 

exposure to SARS–CoV–2 at work, 

because their workplaces typically do 

not include any of the characteristics 

that normally enable transmission to 

occur (e.g., indoors, lack of ventilation, 

crowding). Bulfone et al. attributed the 

lower risk of transmission in outdoor 

settings (i.e., open air or structures with 

one wall) to increased ventilation with 

fresh air and a greater ability to 

maintain physical distancing (November 

29, 2020). While the best available 

evidence firmly establishes a grave 

danger in indoor settings, the CDC has 

stated that the risk of outdoor 

transmission is ‘‘low’’ (CDC, September 

1, 2021) and OSHA is unable to 

establish a grave danger in outdoor 

settings from exposure during normal 

work activities. 

OSHA recognizes that outdoor 

transmission has been identified in a 

few specific incidents (e.g., 2 of 7,324 

cases, Qian et al., October 27, 2020). 

However, general reviews of 

transmission studies that include largescale and high-density outdoor 

gatherings indicate that indoor 

transmission overwhelmingly is 

responsible for SARS–CoV–2 

transmission. Additionally, the lack of 

evidence tied to specific case studies 

illustrating outdoor transmission in 

comparison to the bevy of case studies 

on indoor transmission makes it 

difficult to support a conclusion that 

outdoor transmission rises to the level 

of a grave danger. 

Bulfone et al. reviewed a collection of 

SARS–CoV–2 studies that evaluated 

infections in outdoor and indoor 

settings (November 29, 2020), and found 

that transmission is significantly less 

likely to occur in outdoor settings than 

in indoor settings. The studies overall 

found that the risk of outdoor 

transmission was less than 10% of the 

risk of transmission in indoor settings, 

with three of the studies concluding risk 

was 5% or less of the risk of 

transmission in indoor settings. While 

acknowledging significant gaps in 

knowledge, the authors of a different 

study suggested that increases in 

transmission related to large events such 

as the Sturgis motorcycle rally may be 

related to lack of local efforts to prevent 

transmission indoors (e.g., requiring the 

wearing of masks, closing indoor 

dining), rather than the outdoor setting 

for the rally (Dave et al., December 2, 

2020). In contrast, transmission rates 

did not increase as expected following 

the Summer 2020 protests on racial 

injustice. This outcome was attributed, 

in part, to participants having been less 

likely to enter indoor commercial 

establishments. 


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Weed and Foad (September 10, 2020) 

found that transmission of SARS–CoV– 

2 related to large scale outdoor 

gatherings could be largely attributed to 

individual behaviors related to that 

event, such as communal travel and 

indoor congregation at other facilities 

(e.g., restaurants, shared 

accommodations), rather than to the 

time spent outdoors at those gatherings. 

Similarly, a Public Health England 

evaluation of the literature on SARS– 

CoV–2 and surrogate respiratory viruses 

(December 18, 2020) also concluded that 

when transmission does occur at 

outdoor events, outdoor activities were 

mixed with indoor setting use. Public 

Health England concluded that the vast 

majority of transmission happens in 

indoor settings, with very little evidence 

for outdoor transmission. 

A systemic review of SARS–CoV–2 

clusters identified 201 events through 

May 26, 2020 (Leclerc et al., April 28, 

2021), only 4 of which occurred at 

predominantly outdoor settings. For 

those 4 clusters, the authors noted that 

they were not able to evaluate specific 

transmission events and attributed it to 

local health agencies being 

overwhelmed by the pandemic. OSHA 

notes that the designations of settings in 

this study are somewhat generic, as 

outdoor construction sites will often 

have indoor locations, such as mobile 

offices, or locations with reduced 

airflow, such as areas with a roof or 

ceiling and two or more walls. 

Regardless, this study illustrates the 

comparable abundance of evidence 

available to evaluate SARS–CoV–2 

transmission in indoor settings versus 

outdoor settings. 

Cevik et al. (August 1, 2021) reviewed 

studies on the transmission dynamics of 

SARS–CoV–2 infections from large 

scale, contact-tracing studies. The 

authors recommended that, based on the 

evidence that outdoor transmission 

dynamics resulted in significantly fewer 

infections than in indoor settings, 

public health entities should greatly 

encourage use of outdoor settings. The 

researchers highlighted a study by 

Nishiura et al. (April 16, 2020), who 

evaluated 110 cases in Japan at the 

beginning of the pandemic and found 

that outdoor settings reduced 

transmission risk by 18.7 times and 

reduced the risk of super-spreader 

events by 32.5 times. 

Agricultural workplace settings have 

experienced significant SARS–CoV–2 

infections. However, transmission in 

these settings is difficult to characterize 

because many jobs in this sector include 

both outdoor and indoor activities. 

Miller et al. (April 30, 2021) evaluated 

an outbreak among farmworkers in 

Washington State. The researchers 

found that 28% of workers with 

predominantly indoor tasks where they 

were unable to maintain physical 

distance were infected, compared to 6% 

of workers who performed 

predominantly outdoors tasks in the 

orchards. Conversely, a study on 

farmworkers in Monterey County, 

California found a significant 

correlation between evidence of 

infection and individuals who worked 

in the fields as opposed to indoor work 

(Mora et al., September 15, 2021). The 

paper noted that infections were 

predominant in individuals who lived 

in crowded conditions, commuted 

together to the fields, and spoke at home 

in indigenous languages, which is 

important as written health messages 

are often not available in all worker 

languages. These papers cannot identify 

where or when infections occurred in 

order to discern causation. The 

associations observed may indicate that 

SARS–CoV–2 infections may be more 

related to aspects related to indoor 

exposures outside of the work activities 

(e.g., crowded living conditions) or 

potentially overlooked indoor aspects 

connected to outdoor work (e.g., shared 

commuting). 

Several studies discussed below in 

more detail have evaluated outdoors onfield transmission from infected 

participants during football, soccer, and 

rugby matches. These events include 

repeated close physical contact between 

players, without PPE or physical 

distancing, over the course of fairly long 

events, with increased exertion leading 

to greater respiratory effort and 

production of respiratory droplets. 

These events also include opposing 

cohorts who only interact during onfield activities. Therefore, these studies 

provide some evidence for the low 

likelihood of outdoor transmission in 

other workplace activities greatly 

impacted by the pandemic, such as in 

construction. 

Mack et al. (January 29, 2021) detailed 

the National Football League’s complex 

program to assess and prevent 

transmission, which included devices 

that recorded distance and duration of 

interactions with others, for the purpose 

of improving identification of 

individuals with high-risk exposures. 

Although 329 positive cases were 

identified among roughly 11,400 players 

and staff, there were no reported cases 

of on-field transmission by infected 

players. The results led the NFL to focus 

more on reducing transmission in 

indoor settings, including 

transportation. 

Egger et al. (March 18, 2021) reviewed 

three soccer matches involving 18 

players who had SARS–CoV–2; one 

match involved a team where 44% of 

the players were infected. Video 

analysis was used to determine the type 

of contact between players, such as 

contact to face or hand slaps. None of 

the existing cases were associated with 

on-field play and no secondary 

transmission from on-the-field contacts 

was observed. Jones et al. (February 11, 

2021), evaluated four rugby Super 

League matches involving eight players 

who were found to be infected with 

SARS–CoV–2. Using video footage and 

global positioning data, the researchers 

were able to identify 28 players as highrisk contacts with the infected players. 

These high-risk players together had as 

many as 32 tackles and were within two 

meters of infected players as often as 

121 times during the four matches. Of 

the 28 players noted as high-risk 

contacts, one became infected with 

SARS–CoV–2. However, researchers 

determined that the transmission 

resulted from internal team outbreaks 

and not from exposure on the field. 

OSHA acknowledges that the risk of 

transmission of SARS–CoV–2 in 

outdoor settings is not zero, and that 

there may be some low risk to workers 

performing general tasks exclusively in 

outdoor settings. However, where 

studies have been able to differentiate 

between indoor and outdoor exposures, 

they indicate that indoor exposures are 

the much more significant drivers of 

SARS–CoV–2 infections. Therefore, the 

best available evidence at this time does 

not provide OSHA with the information 

needed to establish SARS–CoV–2 as a 

grave danger for general work activities 

in outdoor settings (see Int’l Union, 

United Auto., Aerospace, & Agr. 

Implement Workers of Am., UAW, 590 

F. Supp. at 755–56, describing a ‘‘grave 

danger’’ as a risk that is more than 

‘‘significant’’). Therefore, OSHA has 

excluded employees who work 

exclusively outdoors from the scope of 

this ETS (see the Summary and 

Explanation for Scope and Application, 

Section VI.B. of this preamble). 

c. Employees in Healthcare 

Because OSHA issued a separate 

grave danger determination several 

months ago for some healthcare 

workers, some explanation of how its 

current finding applies to healthcare 

workers is necessary. In June 2021, 

OSHA issued its Healthcare ETS (86 FR 

32376) after determining that some 

healthcare workers faced a grave danger 

of infection from SARS–CoV–2. This 

grave danger determination, along with 

the protections of the Healthcare ETS, 

applied to healthcare and healthcare 

support workers in settings where 


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people with suspected or confirmed 

cases of COVID–19 are treated, and was 

based on the increased potential for 

transmission of the virus in such 

settings (see 86 FR 32411–32412). These 

workers are currently covered by the 

protections of the Healthcare ETS (29 

CFR 1910.502). OSHA does not have 

data to demonstrate that unvaccinated 

workers in settings covered by the 

Healthcare ETS face a grave danger from 

SARS–CoV–2 when the requirements of 

that standard are followed. However, if 

the Healthcare ETS were no longer in 

effect, OSHA would consider the 

workers who were covered by it, and 

who remain unvaccinated, to be at grave 

danger for the reasons described in this 

ETS. 

OSHA’s new finding of grave danger 

applies to healthcare and healthcare 

support workers who are not covered by 

the Healthcare ETS, to the extent they 

remain unvaccinated. In this ETS, as 

discussed in this section, OSHA has 

made a broader determination of grave 

danger that applies to most 

unvaccinated workers, regardless of 

industry. OSHA’s current finding of 

grave danger supporting this ETS does 

not depend on whether a workplace is 

one where people with suspected or 

confirmed COVID–19 are expected to be 

present. Therefore, the finding of grave 

danger applies to unvaccinated workers 

in healthcare settings that are not 

covered by 29 CFR 1910.502 to the same 

extent it applies to unvaccinated 

workers in all other industry sectors. 

d. Employees Who Were Previously 

Infected With SARS–CoV–2 

OSHA has carefully evaluated the 

effectiveness of previous SARS–CoV–2 

infections in providing protection 

against reinfection. This section 

provides a detailed description of the 

current scientific information in order to 

ascertain what the best available 

scientific evidence on this topic 

indicates regarding the risk to 

individuals with previous COVID–19 

infections from exposure to SARS–CoV– 

2. While the agency acknowledges that 

the science is evolving, OSHA finds that 

there is insufficient evidence to allow 

the agency to consider infectionacquired immunity to allay the grave 

danger of exposure to, and reinfection 

from, SARS–CoV–2. 

To determine whether employees 

with infection-induced immunity from 

SARS–CoV–2 (i.e., those who were 

infected with SARS–CoV–2 but have not 

been vaccinated) face a grave danger, 

OSHA reviewed the scientific evidence 

on the protective effects of vaccineinduced SARS–CoV–2 immunity versus 

infection-induced immunity. Individual 

immunity to any infectious disease, 

including SARS–CoV–2, is achieved 

through a complex response to exposure 

by the immune system. This response 

consists of disease-specific antibody 

production guided and augmented by 

certain types of immune cells, such as 

T and B cells, which work together to 

neutralize or destroy the disease-causing 

agent. Immune responses to viruses like 

SARS–CoV–2 can be measured in 

several ways. For instance, blood serum 

can be taken and exposed to specific 

proteins found on the SARS–CoV–2 

virus, in order to measure the presence 

of antibodies in the blood. Another 

antibody test, the neutralization test, 

measures the ability of the antibodies 

present in a serum to neutralize 

infectivity and prevent cells from being 

infected. T cell immunity can be 

measured using techniques that target a 

specific biomolecule that is specific to 

SARS–CoV–2. 

A considerable number of individuals 

who were previously infected with 

SARS–CoV–2 do not appear to have 

acquired effective immunity to the virus 

(Psichogiou et al., September 13, 2021; 

Wei et al., July 5, 2021; Cavanaugh et 

al., August 13, 2021). The level of 

protection afforded by infectioninduced immunity appears to depend 

on the severity of individuals’ 

infections. In a study from Greece, 

immunogenicity was compared between 

healthcare workers who were 

vaccinated with Pfizer-BioNTech and 

unvaccinated patients who acquired a 

natural infection (Psichogiou et al., 

September 13, 2021). The researchers 

found that the immune response in 

unvaccinated individuals correlated to 

the severity of their disease. Fully 

vaccinated healthcare workers had 

immune responses (measured as 

antibody levels specific to SARS–CoV– 

2) that were 1.3 times greater than 

patients who had critical cases of 

COVID–19 cases, 2.5 times greater than 

patients who had moderate to severe 

cases, and 10.5 times greater than 

patients who had asymptomatic/mild 

illnesses. Similarly, another study found 

that 24.0% (1,742 of 7,256) of 

individuals who had a previous SARS– 

CoV–2 infection were seronegative (i.e., 

did not produce antibodies in response 

to the virus), suggesting that the 

previous infection provided insufficient 

protection against future infection (Wei 

et al., July 5, 2021). Individuals who 

were seronegative were typically older, 

had lower viral burdens when infected, 

and were more likely to be 

asymptomatic. The authors posited that 

the immunity of those who were 

seropositive (i.e., did produce 

antibodies in response to the virus) 

would provide some measure of 

protection, but that these individuals 

would benefit from a vaccination 

booster. This position appears to be 

validated by a study that compared the 

reinfection rates of individuals in 

Kentucky based on their post-recovery 

vaccination status (Cavanaugh et al., 

August 13, 2021). Unvaccinated 

individuals with previous infection 

were found to be 2.3 times more likely 

to be reinfected than those who were 

vaccinated after their prior infection. 

These studies demonstrate not only that 

those with milder infections may not be 

protected against future infection, but 

that it is difficult to tell, on an 

individual level, which individuals 

might have had prior infections that 

conveyed protection equivalent to that 

provided by vaccination. 

A number of other studies indicate 

that fully vaccinated individuals may be 

better protected against future infection 

than those with previous infections. A 

study in Massachusetts concluded that 

the immunity conveyed from a previous 

SARS–CoV–2 infection was effectively 

equivalent to the immunity of an 

uninfected individual who has had only 

one dose of an mRNA vaccine 

(Naranbhai et al., October 13, 2021). The 

authors found that fully vaccinated 

individuals have an immune response 

(i.e., antibodies and neutralization) well 

above the levels observed in 

unvaccinated, previously-infected 

individuals. German researchers found 

that individuals who were fully 

vaccinated with Pfizer-BioNTech had a 

significantly greater immune response 

(as measured by antibody levels) than 

unvaccinated individuals who had 

infections, concluding that vaccination 

would be needed for those unvaccinated 

individuals to have similar protection 

against infection (Herzberg et al., June 

13, 2021). Similarly, a Dutch study 

observed that vaccination greatly 

improved the immune response (as 

measured by antibodies and virusspecific T cells) of individuals who had 

recovered from COVID–19 (Geers et al., 

May 25, 2021). Planas et al. (August 12, 

2021) also noted that immune response 

(as measured by neutralization) to the 

Alpha, Beta, and Delta (B.1.617.2) 

variants in unvaccinated, previouslyinfected individuals was considerably 

less than the immune response in 

individuals five weeks after their second 

Pfizer-BioNTech dose. When 

unvaccinated, previously-infected 

individuals were vaccinated, their 

immune response (as measured by 

neutralization) increased by more than 

an order of magnitude. Likewise, Wang 


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et al. (July 15, 2021) found that the 

immune response (as measured by 

neutralization) of those with previous 

SARS–CoV–2 infection increased by 

more than an order of magnitude against 

Alpha (B.1.1.7), Beta (B.1.351), Iota 

(B.1.526), and Gamma (P.1) variants 

when they were vaccinated. These 

studies show that infection-induced 

immunity may not equal the protection 

afforded by vaccination and that 

vaccination greatly improves the 

immune response of those who were 

previously infected. 

The aforementioned studies indicate 

that immunity acquired through 

infection appears to be less protective 

than vaccination. There are also a 

number of epidemiological studies that 

provide some evidence that infectionacquired immunity has the potential to 

provide a significant level of protection 

against reinfection. As OSHA discusses 

in greater detail below, these studies 

suffer from methodological limitations 

that render them inconclusive about the 

level of immunity conferred by 

infection, and therefore OSHA is unable 

to establish that such immunity 

eliminates grave danger. This 

determination is based in three parts. 

First, the epidemiological literature 

OSHA reviewed generally suffers from 

selection bias to a degree that it serves 

as an unreliable basis on which to reach 

a robust conclusion on whether 

previous infection removes workers 

from grave danger. In general, the 

studies described below do not account 

for people who had mild COVID–19 

infections, leading to study findings 

regarding the level of protection 

afforded by prior infection that are not 

generally applicable. Second, the tests 

employed in the studies are being used 

in ways that they were not originally 

designed to be employed. These tests 

are powerful tools, but there are 

limitations to their use in determining if 

a specific individual is, in fact, 

protected from the grave danger of 

SARS–CoV–2. Particularly problematic 

is the lack of established thresholds to 

determine full protection from 

reinfection or even a standardized 

methodology to determine infection 

severity or immune response. Thus, 

while these studies broadly establish 

some increase in protectiveness against 

SARS–CoV–2 among the studied 

populations, they as yet are unable to 

provide a reasonable degree of certainty 

on whether the degree of protection 

afforded any particular individual from 

their prior infection is sufficient to 

eliminate the grave danger from 

reinfection (see Milne, et al., October 21, 

2021.) Third, while the research 

methodology itself creates difficulties in 

the context of OSHA’s grave danger 

inquiry, the implications of trying to 

apply investigative research 

methodology to clinical practice are 

even more challenging. The need for the 

development of standardized methods 

and criteria for establishing sufficient 

immunity preclude the application of 

the studies’ findings to robust and 

reliable clinical practice. These three 

rationales for OSHA’s finding are 

described in more detail below. 

Several epidemiological studies used 

previous RT–PCR positive cases to 

define previous infections (Hansen et 

al., March 27, 2021; Pilz et al., February 

11, 2021; Vitale et al., May 28, 2021; 

Pouwels et al., October 14, 2021; Braeye 

et al., September 15, 2021; Hall et al., 

April 17, 2021). RT–PCR tests, 

particularly in the beginning of the 

pandemic, were given high priority to 

discern who seeking medical care was, 

in fact, infected. For instance, the 

progression of testing from medical 

needs to more of a community 

perspective is illustrated in Denmark 

(Vrangbaek et al., April 29, 2021). 

Denmark, considered one of the gold 

standard countries for its 

comprehensive testing program, missed 

five infections for every one it identified 

in the spring of 2020 (Espenhaim et al., 

August 22, 2021). Hansen et al. (March 

27, 2021) depended greatly on these first 

surge infection definitions to determine 

that survivors had protection of 80.5% 

effectiveness during the second surge in 

Denmark from September through 

December, 2020. By only noting RT– 

PCR positives from the spring when 

testing was limited and highly focused 

on health care needs, it seems apparent 

that the study excluded many less 

severe cases (which are less likely to 

result in an effective immune response 

against reinfection), leading to results 

that may suggest greater protection is 

afforded by infection than in actuality. 

Even by December of 2020, it appears 

Denmark’s gold standard 

comprehensive testing approach was 

only able to capture roughly half of all 

infections. Similar systemic 

undercounts have also been determined 

to be true in the United States where 

approximately three out of four 

infections have never been reported 

(CDC, July 27, 2021b). 

It is important to recognize that RT– 

PCR testing was not implemented to 

find every infection, but was used 

instead to assist in determining when 

medical and community interventions 

were necessary. Infections without 

symptoms or with mild symptoms likely 

would not require medical intervention 

and, therefore, would likely not be 

identified via testing. The absence of 

this population that is more vulnerable 

to reinfection, in these studies, 

undercuts their usefulness in OSHA’s 

grave danger analysis, because they may 

overestimate the protectiveness of 

immunity acquired through infection. 

Several other studies in regions less 

known for their sampling approach than 

Denmark also were heavily dependent 

on early, limited pandemic RT–PCR 

testing. An Austrian study found a 

roughly ten-fold decrease in reinfection 

in survivors of reported infections from 

February to April 30, 2020 in 

comparison with the general public 

(Pilz et al., February 11, 2021). The 

authors noted that ‘‘infections in the 

first wave are likely to have been far 

more common than the documented 

ones’’ and referred to their results as a 

‘‘rough estimate.’’ Researchers at the 

Cleveland Clinic also found a reduced 

rate of reinfection in those who had a 

reported previous infection compared 

with those with no prior infection 

(13.8% infection rate for those 

previously uninfected and 4.9% 

infection rate for those previously 

infected), but noted that testing was 

limited in that the ‘‘Cleveland Clinic did 

not test asymptomatic patients unless 

they were admitted to hospital or 

undergoing a procedure/surgery’’ 

(Sheehan et al., March 15, 2021). These 

criteria for testing create uncertainty in 

determining the level of effectiveness 

previous infection provides against 

SARS–CoV–2 because many individuals 

with asymptomatic infections would not 

have been tested. Similar issues are also 

found in studies on populations in Italy, 

Belgium, and the UK (Vitale et al., May 

28, 2021; Braeye et al., September 15, 

2021; Pouwels et al., October 14, 2021). 

To avoid the well-known problems 

with RT–PCRs defining previous 

infection, other studies have defined 

previous infection as testing positive for 

antibodies specific for SARS–CoV–2 

(Lumley et al., February 11, 2021; AbuRaddad et al., April 28, 2021; Hall et al., 

April 17, 2021). As noted above, 

previous infection does not necessarily 

result in a seropositive outcome; one 

study indicated that nearly a quarter 

(24%) of those infected with SARS– 

CoV–2 subsequently showed no sign of 

an immune response in SARS–CoV–2- 

specific antibody testing (Wei et al., July 

5, 2021). Therefore, studies only 

considering seropositive individuals are 

in essence studying only the individuals 

most likely to have protection from 

reinfection. Lumley et al. (February 11, 

2021) found that those having a 

seropositive response had almost an 

order of magnitude fewer infections 

(e.g., 0.11 adjusted incidence rate ratio). 

Likewise, Abu-Raddad et al. (April 28, 


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2021) found that seropositive 

individuals were reinfected less (0.7%) 

during their study period in comparison 

to seronegative individuals (3.09%). In 

addition to the bias associated with 

using antibodies to determine previous 

infection, the authors also noted that 

there may have been issues with being 

able to document cases with mild or no 

symptoms. 

Hall et al. (April 17, 2021) cast a 

wider net by defining previous infection 

to include both positive RT–PCR tests 

and seropositivity. The researchers 

found that those who were considered 

previously infected had an 84% lower 

risk of infection compared to those who 

were unvaccinated with no record of 

infection. While the study does attempt 

to capture as many previously-infected 

individuals as possible, this does not 

actually address the weaknesses of each 

method. Those with less severe 

infections were less likely to have 

sought out or been able to get an RT– 

PCR test during the first surge, which is 

when an overwhelming number of the 

previous infections were recorded in 

this study (March through May, 2020). 

Additionally, the less severe infections 

that are most likely underrepresented in 

the study appear to be the ones that are 

less likely to produce seropositivity. 

Shenai et al. (September 21, 2021) 

pooled several studies with the above 

issues and concluded that immunity 

acquired through a previous infection 

from SARS–CoV–2 may be as protective 

as, or more protective than, the 

immunity afforded by vaccination to an 

individual without previous infection. 

However, authors of several of those 

underlying studies used in the analysis 

noted that their studies were limited by 

not having the capability to fully 

account for asymptomatic infections 

(the aforementioned Lumley et al., July 

3, 2021; Gazit et al., August 25, 2021; 

Shrestha et al., June 19, 2021). As noted 

earlier, infection severity appears to be 

correlated with the robustness of 

immunity acquired through that 

infection, so the failure to account for 

asymptomatic infections may mean that 

this finding is related to the protection 

afforded by more severe disease. While 

pooled analyses can be utilized to make 

powerful observations, those 

observations are highly dependent upon 

the underlying studies not sharing the 

same methodological weakness which, 

in this case, was the studies’ exclusion 

of asymptomatic infections. 

Moreover, while the evidence 

suggests that severe infection may 

provide significant protection against 

reinfection in some cases (Milne et al., 

October 21, 2021), the level of 

protection cannot be determined on an 

individual basis. The studies discussed 

above are based on tests that show only 

whether a person was or was not 

infected and provide no information 

about the severity of the infection. 

Because the studies are likely biased 

towards those who had a relatively 

serious infection, their findings cannot 

be generalized to all individuals with 

prior infections. 

RT–PCR and antibody testing are 

powerful tools with many clinical and 

research applications. However, the 

application of these tools cannot 

determine what degree of protection a 

particular individual has against SARS– 

CoV–2 without a great deal of additional 

study concerning thresholds 

establishing individual immunity. 

Therefore, these tools are not yet able to 

assist OSHA in making more nuanced 

findings about which workers who had 

COVID–19 previously are at grave 

danger. There is no established 

threshold to determine full protection 

from reinfection or a standardized 

methodology to determine infection 

severity or immune response. Studies 

use Ct threshold to approximate viral 

loads and infer disease severity, but that 

metric depends on many variables (e.g. 

time of collection during infection, 

quality of collection, handling of 

sample, specifics of the test protocol 

and materials, precision in performing 

the protocol) that are often of far less 

importance when it is used as a crude 

diagnostic to determine the presence of 

an infection. In other words, it is 

reasonable to say that the lower the Ct 

count, the greater the likelihood that an 

individual is at a lower reinfection risk; 

however, the Ct count is greatly 

dependent on the RT–PCR test used, 

and how different laboratories may run 

that test, which cannot be discerned. 

Similarly, research needs to be done to 

better identify the minimum protective 

threshold of anti-SARS–CoV–2 serum 

neutralizing antibodies (Milne et al., 

October 21, 2021). Thus, these studies 

currently do not allow OSHA to 

determine, with a reasonable degree of 

certainty, how much protection 

employees with prior infections have 

against reinfection. 

Furthermore, while the research 

methodology itself raises challenges in 

making the grave danger determination, 

the implications of trying to apply 

investigative research methodology to 

clinical practice are even more difficult. 

The lack of standardized methods and 

standardized measures for immunity 

preclude their application to robust and 

reliable clinical practice. One major 

drawback discussed above is that, in 

contrast to vaccine studies where 

researchers know who was vaccinated 

with a standardized dosing regime, 

scientific inquiries likely will not be 

able to identify most individuals who 

were infected, the degree of disease 

experienced for those with a confirmed 

infection, and the immunity against 

reinfection. As of October 18, 2021, 

several RT–PCR assays have been 

authorized without standardization or 

assessment with respect to measuring 

disease severity (FDA, October 18, 

2021). As noted above, the use of the Ct 

threshold to approximate viral loads 

and infer disease severity is unreliable. 

As the FDA notes, the same is true about 

antibody tests, which are considered to 

be poor indicators for individuals to use 

to determine whether they are protected 

from reinfection (FDA, May 19, 2021). 

There are many different SARS–CoV–2- 

specific antibody tests that focus on 

different specificity. Not only are the 

outcomes of these tests not directly 

comparable to each other, but the 

specificity of these tests is not related to 

any notion of protection against 

reinfection. It can be reasonably said 

that a greater antibody response means 

a greater likelihood of protection against 

infection, but, again, the science is not 

clear what those thresholds are and 

whether a threshold would be 

comparable between laboratories. At 

this point in time, even if OSHA 

determined that some individuals with 

prior infections are not at grave danger 

from exposure to SARS–CoV–2, there is 

no agreement on what indicators of 

infection might be sufficient to confer 

this level of immunity or how a 

healthcare provider or employer could 

document that a certain level of 

immunity had been achieved. 

Based on the best available evidence 

described above, OSHA concludes that 

while some individuals who were 

infected with SARS–CoV–2 may have 

significant protection from subsequent 

infections, the level of protection 

afforded by infection may be 

significantly impacted by the severity of 

the infection and some previously 

infected individuals may have no future 

protection at all. In addition, given the 

limitations of the studies described 

above, there is considerable uncertainty 

as to whether any given individual is 

adequately protected against reinfection. 

Furthermore, the level of protection, if 

any, provided by a given person’s 

SARS–CoV–2 infection cannot be 

ascertained based on currently-available 

testing methods. Therefore, OSHA finds 

that the requirements of this ETS are 

necessary to protect unvaccinated 

individuals who had prior SARS–CoV– 

2 infections from the grave danger from 

exposure to SARS–CoV–2. 


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OSHA recognizes that its finding 

regarding infection-induced immunity 

is being made in an area of inquiry that 

is currently on the ‘‘frontiers of 

scientific knowledge’’ (Indus. Union 

Dep’t, AFL–CIO v. Am. Petroleum Inst., 

448 U.S. 607, 656 (1980)). For these 

reasons, OSHA finds that those who 

have previously been infected with 

SARS–CoV–2 and are not yet fully 

vaccinated are at grave danger from 

SARS–CoV–2 exposure and that it is 

necessary to protect these workers via 

vaccination, or testing and the use of 

face coverings, under this standard. 

OSHA will continue to follow 

developments on this issue, however, 

and make appropriate adjustments to 

this ETS if the evidence warrants. 

VI. Conclusion. 

OSHA finds that many employees in 

the U.S. who are not fully vaccinated 

against COVID–19 face a grave danger 

from exposure to SARS–CoV–2 in the 

workplace. OSHA’s determination is 

based on the severe health 

consequences of exposure to the virus, 

including death; powerful lines of 

evidence demonstrating the 

transmissibility of the virus in the 

workplace; and the prevalence of 

infections in employee populations. 

With respect to the grave health 

consequences of exposure to SARS– 

CoV–2, OSHA has found that regardless 

of where and how exposure occurs, 

COVID–19 can result in death. Even for 

those who survive a SARS–CoV–2 

infection, the virus can cause serious, 

long-lasting, and potentially permanent 

health effects. Serious cases of COVID– 

19 require hospitalization and dramatic 

medical interventions, and might leave 

employees with permanent and 

disabling health effects. Both death and 

serious cases of COVID–19 requiring 

hospitalization provide independent 

bases for OSHA’s finding of grave 

danger. The evidence is clear that the 

safe and effective vaccines authorized 

and/or approved for use in the United 

States greatly reduce the likelihood of 

these severe outcomes. 

The best available evidence on the 

science of transmission of the virus 

makes clear that SARS–CoV–2 is 

transmissible from person to person in 

shared workplace settings. The 

likelihood of transmission can be 

exacerbated by common characteristics 

of many workplaces, including working 

indoors, working with others for 

extended periods of time, poor 

ventilation, and close contact with 

potentially infectious individuals. The 

likelihood of transmission in the 

workplace is also exacerbated by the 

presence of unvaccinated workers, who 

are more likely than those who are 

vaccinated to be infected and transmit 

the virus to others. Every workplace 

SARS–CoV–2 exposure or transmission 

has the potential to cause severe illness 

or even death, particularly in 

unvaccinated workers. Taken together, 

the severe health consequences of 

COVID–19 and the evidence of its 

transmission in environments 

characteristic of the workplaces covered 

by this ETS demonstrate that exposure 

to SARS–CoV–2 represents a grave 

danger to unvaccinated employees in 

many workplaces throughout the 

country. 

The existence of a grave danger to 

employees from SARS–CoV–2 is further 

supported by the toll the pandemic has 

already taken on the nation as a whole 

and the number of workers who remain 

unvaccinated. Although OSHA cannot 

state with precision the total number of 

workers in our nation who have 

contracted COVID–19 at work and 

became sick or died, COVID–19 has 

killed 723,205 people in the United 

States as of October 18, 2021 (CDC, 

October 18, 2021—Cumulative US 

Deaths). That death toll includes 

131,478 people who were 18 to 64 years 

old, prime working age (CDC, October 

18, 2021—Demographic Trends, Deaths 

by Age Group). OSHA estimates that 

there are over 26 million workers 

subject to the rule who remain 

unvaccinated at present and therefore 

are in grave danger. As a result of this 

ETS, the agency estimates that 72% of 

them will be vaccinated (see OSHA, 

October 2021c). 

Current mortality data shows that 

unvaccinated people of working age 

have a 1 in 202 chance of dying when 

they contract COVID–19 (CDC, October 

18, 2021—Demographic Trends, Cases 

by Age Group; Demographic Trends, 

Deaths by Age Group). As of October 18, 

2021, close to 45 million people in the 

United States have been reported to 

have infections, and thousands of new 

cases were being identified daily (CDC, 

October 18, 2021—Daily Cases).One in 

14 reported cases of COVID–19 in 

people ages 18 to 64 becomes severe and 

requires hospitalization (CDC, October 

18, 2021—Demographic Trends, Cases 

by Age; Total Hospitalizations, by Age). 

Moreover, public health officials agree 

that these numbers fail to show the full 

extent of the deaths and illnesses from 

this disease, and racial and ethnic 

minority groups are disproportionately 

represented among COVID–19 cases, 

hospitalizations, and deaths (CDC, 

December 10, 2020; CDC, May 26, 2021; 

Escobar et al., February 9, 2021; Gross 

et al., October 2020; McLaren, June 

2020; CDC, October 6, 2021). Given this 

context, OSHA is confident in its 

finding that exposure to SARS–CoV–2 

poses a grave danger to the employees 

covered by this ETS. 

The above analysis fully satisfies the 

OSH Act’s requirements for finding a 

grave danger. Although OSHA usually 

performs a quantitative risk assessment 

based on extrapolations among exposure 

levels before promulgating a health 

standard under section 6(b)(5) of the 

OSH Act (29 U.S.C. 655(b)(5)), that type 

of analysis is not necessary in this 

situation. OSHA has most often invoked 

section 6(b)(5) authority to regulate 

exposures to chemical hazards 

involving much smaller populations, 

many fewer cases, extrapolations from 

animal evidence, long-term exposure, 

and delayed effects. In those situations, 

mathematical modelling is necessary to 

evaluate the extent of the risk at 

different exposure levels. The gravity of 

the danger presented by a disease with 

acute effects like COVID–19, on the 

other hand, is made obvious by a 

straightforward count of deaths and 

illnesses caused by the disease, which 

reach sums not seen in at least a 

century. The evidence compiled above 

amply supports OSHA’s finding that 

SARS–CoV–2 presents a grave danger in 

American workplaces. In the context of 

ordinary 6(b) rulemaking, the Supreme 

Court has said that the OSH Act is not 

a ‘‘mathematical straitjacket,’’ nor does 

it require the agency to support its 

findings ‘‘with anything approaching 

scientific certainty,’’ particularly when 

operating on the ‘‘frontiers of scientific 

knowledge’’ (Indus. Union Dep’t, AFL– 

CIO v. Am. Petroleum Inst., 448 U.S. 

607, 655–56 (1980)). This is true a 

fortiori in the current national crisis, 

where OSHA must act to ensure 

employees are adequately protected 

from the hazard presented by the 

COVID–19 pandemic (see 29 U.S.C 

655(c)(1)).The grave danger from SARS– 

CoV–2 represents the biggest threat to 

employees in OSHA’s more than 50-year 

history. The threat applies to employees 

in all sectors covered by OSHA, 

including general industry, 

construction, maritime, agriculture, and 

healthcare. Having made the 

determination of grave danger, as well 

as the determination that an ETS is 

necessary to protect employees from 

exposure to SARS–CoV–2 (see Need for 

the ETS, Section III.B. of this preamble), 

OSHA is required to issue this standard 

to protect employees from getting sick 

or dying from COVID–19 acquired at 

work (see 29 U.S.C. 655(c)(1)). 

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B. Need for the ETS 

This ETS is necessary to protect 

unvaccinated workers from the risk of 

contracting COVID–19, including its 

more contagious variants, such as the 

B.1.617.2 (Delta), at work. The rule 

protects workers through the most 

effective and efficient workplace control 

available: Vaccination. Additionally, 

this ETS is necessary to protect workers 

who remain unvaccinated through 

required regular testing, use of face 

coverings, and removal of infected 

employees from the workplace. 

I. Events Leading to the ETS 

This section describes the evolution 

of OSHA’s actions to protect employees 

from the grave danger posed by COVID– 

19 and the agency’s reasons for issuing 

this ETS at this time. 

a. OSHA’s 2020 Actions Regarding 

COVID–19 

Beginning in early 2020, OSHA began 

to monitor the growing cases of the 

SARS–CoV–2 virus that were occurring 

around the country. Because scientific 

information about the disease, its 

potential duration, and ways to mitigate 

it were undeveloped, OSHA decided to 

monitor the situation. As noted below, 

OSHA subsequently issued numerous 

guidance documents advising interested 

employers of steps they could take to 

mitigate the hazard arising from the 

virus. 

Also beginning in early 2020, OSHA 

received numerous petitions and 

supporting letters from members of 

Congress, unions, advocacy groups, and 

one group of large employers urging the 

agency to take immediate action by 

issuing an ETS to protect employees 

from exposure to the virus that causes 

COVID–19 (Scott and Adams, January 

30, 2020; NNU, March 4, 2020; AFL– 

CIO, March 6, 2020; Menendez et al., 

March 9, 2020; Wellington, March 12, 

2020; DeVito, March 12, 2020; Carome, 

March 13, 2020; SMART, March 30, 

2020; Blumenthal et al., April 8, 2020; 

Murray et al., April 29, 2020; Luong, 

April 30, 2020; Novoa, June 24, 2020; 

Solt, April 28, 2020; Castro et al., April 

29, 2020; Talbott and Adely, May 4, 

2020; Public Citizen, March 13, 2020; 


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16This adoption includes the citations in the 

referenced section of the Healthcare ETS, which are 

also included in the docket for this ETS. 

LULAC, March 31, 2020; Meuser, May 

1, 2020; Raskin, April 29, 2020; 

Cartwright et al., May 7, 2020; Frosh et 

al., May 12, 2020; Pellerin, March 19, 

2020; Yborra, March 19, 2020; Owen, 

March 19, 2020; Brown et al., April 30, 

2020; Price et al., May 1, 2020; 

ORCHSE, October 9, 2020). These 

petitions and supporting letters argued 

that many employees had been infected 

because of workplace exposures to the 

virus that causes COVID–19, and that 

immediate, legally enforceable action is 

necessary for protection. OSHA quickly 

began issuing detailed guidance 

documents and alerts beginning in 

March 2020 that helped employers to 

determine employee risk levels of 

COVID–19 exposure and made 

recommendations for appropriate 

controls. As explained in detail in 

Section IV. of the Healthcare ETS, 86 FR 

32376, 32412–13 (June 21, 2021) and 

hereby included in the record for this 

ETS,16 at the time, OSHA leadership 

believed that implementing a 

combination of enforcement tools, 

including guidance, existing OSHA 

standards, and the General Duty Clause, 

would provide the necessary protection 

for workers. OSHA also expressed 

concern that an ETS might 

unintentionally enshrine requirements 

that are subsequently proven ineffective 

in reducing transmission. 

When it decided not to issue an ETS 

in the spring of 2020, OSHA determined 

that the agency could provide sufficient 

employee protection against COVID–19 

through enforcing existing workplace 

standards and the General Duty Clause 

of the OSH Act, coupled with issuing 

industry-specific, non-mandatory 

guidance. However, in doing so OSHA 

indicated that its conclusion that an 

ETS was not necessary was specific to 

that time, and that the agency would 

continue to monitor the situation and 

take additional steps as appropriate (see, 

e.g., OSHA, March 18, 2020 Letter to 

Congressman Scott (stating ‘‘[W]e 

currently see no additional benefit from 

an ETS in the current circumstances 

relating to COVID–19. OSHA is 

continuing to monitor this quickly 

evolving situation and will take the 

appropriate steps to protect workers 

from COVID–19 in coordination with 

the overall U.S. government response 

effort.’’ (emphasis supplied); DOL May 

29, 2020 at 20 (stating ‘‘OSHA has 

determined this steep threshold [of 

necessity] is not met here, at least not 

at this time.’’ (emphasis supplied))). 

In addition to the various petitions for 

rulemaking that were submitted to 

OSHA, the AFL–CIO filed a petition for 

a writ of mandamus with the U.S. Court 

of Appeals for the D.C. Circuit, 

requesting that the court compel OSHA 

to issue an ETS. (AFL–CIO, May 18, 

2020). In its administrative decision and 

filing in that case, OSHA explained that 

the determination not to issue an ETS 

was based on the conditions and 

information available to the agency at 

that time and was subject to change as 

additional information indicated the 

need for an ETS. On June 11, 2020, the 

U.S. Court of Appeals for the D.C. 

Circuit issued a one paragraph per 

curiam order denying the AFL–CIO’s 

petition to require OSHA to issue an 

ETS. To be clear, nothing in OSHA’s 

prior position or the D.C. Circuit’s 

decision in In re Am. Fed’n of Labor & 

Cong. of Indus. Orgs., No. 20–1158, 

2020 WL 3125324 (D.C. Cir. June 11, 

2020); rehearing en banc denied (July 

28, 2020) precludes OSHA’s decision to 

promulgate an ETS now. To the 

contrary, at an early phase of the 

pandemic, when vaccines were not yet 

available and when it was not yet 

known how extensive the impact would 

be on illness and death, the court 

decided not to second-guess OSHA’s 

decision to hold off on regulation in 

order to see if its nonregulatory 

enforcement tools could be used to 

provide adequate protection against the 

virus. ‘‘OSHA’s decision not to issue an 

ETS is entitled to considerable 

deference,’’ the court explained, noting 

‘‘the unprecedented nature of the 

COVID–19 pandemic’’ and concluding 

merely that ‘‘OSHA reasonably 

determined that an ETS is not necessary 

at this time.’’ (Id., with emphasis 

added). 

Employers do not have a reliance 

interest in OSHA’s prior decision not to 

issue an ETS on May 29, 2020, which 

did not alter the status quo or require 

employers to change their behavior. See 

Dep’t of Homeland Security v. Regents 

of the Univ. of California, 140 S. Ct. 

1891, 1913–14 (2020). As OSHA 

indicated when it made the decision, 

the determination was based on the 

conditions and information available to 

the agency at that time and was subject 

to change as additional information 

indicated the need for an ETS. In light 

of the agency’s express qualifications 

and the surrounding context, any 

employer reliance would have been 

unjustified and cannot outweigh the 

countervailing urgent need to protect 

workers covered by this ETS from the 

grave danger posed by COVID–19. 

b. OSHA’s Decision To Promulgate a 

Healthcare ETS 

OSHA subsequently issued the 

Healthcare ETS to protect healthcare 

workers. 86 FR 32376. (June 21, 2021), 

codified at 29 CFR 1910.502. Looking 

back on a year of experience, OSHA 

found that its enforcement efforts had 

encountered significant obstacles, 

demonstrating that existing standards, 

regulations, and the General Duty 

Clause were inadequate to address the 

grave danger faced by healthcare 

employees. 86 FR 32415. In 

promulgating that ETS, OSHA 

recognized that ‘‘the impact of [COVID– 

19] has been borne disproportionately 

by the healthcare and healthcare 

support workers tasked with caring for 

those infected by this disease.’’ 86 FR 

32377. Furthermore, states and localities 

had taken increasingly divergent 

approaches to workplace protections 

against COVID–19, making it clear that 

a federal standard was needed to ensure 

sufficient protection in all states. 86 FR 

32377. Therefore, OSHA focused on the 

unique situation experienced by 

healthcare industry workers as the 

frontline caregivers and support workers 

for those suffering from COVID–19. See 

86 FR 32376, 32411–12. 

The Healthcare ETS requires 

employers to institute a suite of 

engineering controls, administrative 

controls, work practices, and personal 

protective equipment to combat the 

COVID–19 hazard. In the Preamble to 

the Healthcare ETS, OSHA observed 

that the development of safe and highly 

effective vaccines is a critical milestone 

in the nation’s response to COVID–19, 

and that fully vaccinated persons have 

a greatly reduced risk of death, 

hospitalization and other health 

consequences. 86 FR 32396. The 

Healthcare ETS therefore includes 

provisions intended to encourage 

employees to become vaccinated, 

including a requirement for employers 

to provide reasonable paid leave for 

vaccination and recovery from any side 

effects. 86 FR 32415, 29 CFR 

1910.502(m). 

In the Healthcare ETS OSHA found 

that employees who work in covered 

healthcare workplaces are exposed to 

grave danger. 86 FR 32411. The agency 

also stated that in light of the 

effectiveness of vaccines, there was 

‘‘insufficient evidence in the record to 

support a grave danger finding for nonhealthcare workplaces where all 

employees are vaccinated.’’ 86 FR 32396 

(emphasis supplied). OSHA made no 

finding at that time regarding 

unvaccinated workers in non-healthcare 

workplaces. 


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No employer challenged the 

Healthcare ETS in court. The United 

Food and Commercial Workers Union 

(UFCW) together with the AFL–CIO 

filed a petition for review asserting that 

the rule should have gone further and 

included more industries in its scope 

(UFCW and AFL–CIO, June 24, 2021). 

That case is being held in abeyance 

pending the issuance of this ETS. 

c. Subsequent Developments 

The preamble to the Healthcare ETS 

notes that new COVID–19 variants 

might emerge that are more 

transmissible and cause more severe 

illness, but does not specifically 

mention the Delta Variant. See 86 FR 

32384. Since publication of the 

Healthcare ETS, the Delta Variant has 

become the dominant form of the virus 

in the United States, causing large 

spikes in transmission, and surges of 

hospitalizations, and deaths, 

overwhelmingly among the 

unvaccinated (CDC, August 26, 2021; 

CDC, October 18, 2021—Variant 

Proportions, July Through October, 

2021). As discussed in more detail in 

Grave Danger (Section III.A. of this 

preamble), the Delta Variant is at least 

twice as contagious as previous COVID– 

19 variants, and research suggests that it 

also causes more severe illness in the 

unvaccinated population (CDC, August 

26, 2021). More infections mean more 

potential for exposures, including in 

workplaces (see Grave Danger, Section 

III.A. of this preamble, for further 

discussion on workplace outbreaks, 

clusters, and the general impact of 

transmission in the workplace.). More 

infections also mean more opportunities 

for the virus to undergo mutations to its 

genetic code, resulting in genetic 

variants with the potential to infect or 

re-infect people. 

Some variability in infection rates in 

a pandemic is to be expected. While the 

curves of new infections and deaths can 

bend down after peaks, they often 

reverse course only to reach additional 

peaks in the future (Moore et al., April 

30, 2020). Last year experts expressed 

concern that one or more subsequent 

waves of COVID–19 were possible in 

2021 (Moore et al., April 30, 2020), 

especially with new variants of COVID– 

19 in circulation (Doughton, February 9, 

2021). That potential tragically became 

a reality with the spread of the Delta 

Variant. 

In June 2021, when the Healthcare 

ETS was published, COVID–19 

transmission rates in the United States 

were at a low point, with the 7-day 

moving average of reported cases to be 

about 12,000. (CDC, August 26, 2021) 

However, by the end of July, the 7-day 

moving average reached over 60,000 as 

the Delta Variant spread across the 

country. (CDC, August 26, 2021). The 7- 

day moving average of reported cases at 

the beginning of September, 2021 

exceeded 161,000 (CDC, October 18, 

2021—Daily Cases). The most recent 7- 

day moving average of reported cases, 

while lower than the peak in late 

August and early September, is still over 

85,000. (CDC, October 18, 2021—Daily 

Cases). These rates are also far higher 

than the rate when OSHA first declined 

to issue an ETS. (CDC, August 27, 2020 

(20,401 confirmed cases per day on May 

29, 2020)). The jump in infections has 

resulted in increased hospitalizations 

and deaths for unvaccinated workers, as 

discussed in detail in Grave Danger 

(Section III.A. of this preamble). While 

the most current data reflect a decline 

in new cases from the peak, the level of 

new cases remains high. CDC data 

shows that, as of October 18, 2021, 

approximately 85% of U.S. counties 

were experiencing ‘‘high’’ rates of 

community transmission, and another 

10% were experiencing ‘‘substantial’’ 

community transmission (CDC, October 

18, 2021—Daily Cases). Although the 

number of new detected cases is 

currently declining nationwide (see 

CDC, October 18, 2021—Community 

Transmission Rates), the agency cannot 

assume based on past experience that 

nationwide case levels will not increase 

again. Indeed, many northern states are 

currently experiencing increases in their 

rate of new cases (see CDC, October 18, 

2021—Cases, Deaths, and Laboratory 

Testing (NAATS) by State; Slotnik, 

October 18, 2021), including Vermont, 

which set a new record for new COVID– 

19 cases in mid-October 2021 (Murray, 

October 18, 2021). Unless vaccination 

rates increase, the experience of 

northern states during this fall could 

presage a greater resurgence in cases 

this winter as colder weather drives 

more individuals indoors (see Firozi 

and Dupree, October 18, 2021). 

While it is important to recognize that 

the Delta Variant has caused a spike in 

hospitalization and death in the United 

States, the SARS–CoV–2 virus, and not 

just a particular variant of that virus, is 

the hazard that workers face (see Grave 

Danger, Section III.A. of this preamble). 

Like any virus, SARS–CoV–2 has the 

ability to mutate over time and produce 

variants that may be more or less severe. 

Indeed, the World Health Organization 

and the CDC both track new variants 

that have continued to arise, such as the 

Lamda and Mu Variants (WHO, October 

12, 2021; CDC, October 4, 2021). At this 

time, the CDC is tracking 11 different 

variants of COVID–19 (CDC, October 4, 

2021). The World Health Organization 

has classified the Lambda and Mu 

variants as ‘‘variants of interest,’’ 

meaning that they have genetic changes 

that affect transmissibility, disease 

severity, immune escape, diagnostic or 

therapeutic escape; and have been 

identified to cause significant 

community transmission or multiple 

COVID–19 clusters, in multiple 

countries with increasing relative 

prevalence alongside increasing number 

of cases over time, or other apparent 

epidemiological impacts to suggest an 

emerging risk to global public health 

(WHO, October 12, 2021). Medical 

experts have also explained that 

vaccination reduces the opportunities 

for the virus to continue to mutate by 

reducing transmission and length of 

infection. And, there is no indication 

that future variants of COVID–19 will 

not be equally or even more dangerous 

than Delta without a higher rate of 

vaccination (Bollinger and Ray, July 23, 

2021). 

Meanwhile, evidence on the power of 

vaccines to safely protect individuals 

from infection and especially from 

serious disease has continued to 

accumulate. (CDC, May 21, 2021). For 

example, as explained in more detail in 

Grave Danger (Section III.A. of this 

preamble), multiple studies have 

demonstrated that vaccines are highly 

effective at reducing instances of 

hospitalization and death. In September 

the CDC compiled data from various 

studies that demonstrated overall 

authorized vaccines reduced death and 

severe case rates by 91 and 92% 

respectively in the population studied 

between April and July (Scobie et al., 

September 17, 2021, Table 1.). 

Additionally, the FDA granted approval 

to the Pfizer-BioNTech COVID–19 

Vaccine for individuals 16 years of age 

and older on August 23, 2021 (FDA, 

August 23, 2021). In announcing the 

decision, the FDA Commissioner 

explained that ‘‘[w]hile this and other 

vaccines have met the FDA’s rigorous, 

scientific standards for emergency use 

authorization, as the first FDA-approved 

COVID–19 vaccine, the public can be 

very confident that this vaccine meets 

the high standards for safety, 

effectiveness, and manufacturing quality 

the FDA requires of an approved 

product.’’ (FDA, August 23, 2021.) 

Despite this important milestone, and 

the demonstrated effectiveness of the 

approved and authorized vaccines 

available to the public, millions of 

employees remain unvaccinated, 

approximately 39% of workers who are 

covered by this ETS (See Economic 

Analysis, Section IV.B. of this ETS). The 

rate of vaccination in the United States 


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has slowed significantly from its peak in 

April, when the daily number of 

vaccination doses administered 

exceeded three million at one point. In 

recent months, daily vaccination rates 

have hovered around one million doses 

administered, or lower (CDC, October 

18, 2021—Daily Vaccination Rate). The 

shortfall in vaccination leaves the 

nation’s working population vulnerable 

to sickness, hospitalization and death, 

whether today under the Delta Variant, 

or under future variants that may arise 

(CDC, October 18, 2021—Daily 

Vaccination Rate); see also Grave Danger 

(Section III.A. of this preamble). 

Moreover, in recent months, an 

increasing number of states have 

promulgated Executive Orders or 

statutes that prohibit workplace 

vaccination policies that require 

vaccination or proof of vaccination 

status, thus attempting to prevent 

employers from implementing the most 

efficient and effective method for 

protecting workers from the hazard of 

COVID–19 (see, e.g., Texas Executive 

Order GA–40, October 11, 2021; 

Montana H.B. 702, July 1, 2021; 

Arkansas S.B. 739, October 4, 2021 and 

Arkansas H.B. 1977, October 1, 2021; 

AZ Executive Order 2021–18, August 

16, 2021). While some States’ bans have 

focused on preventing local 

governments from requiring their public 

employees to be vaccinated or show 

proof of vaccination, the Texas, 

Montana, and Arkansas requirements 

apply to private employers as well. 

Other states have banned local 

ordinances that require employers to 

ensure that customers who enter their 

premises wear masks, thus endangering 

the employees who work there, 

particularly those who are unvaccinated 

(see, e.g., Florida Executive Order 21– 

102, May 3, 2021; Texas Executive 

Order GA–34, March 2, 2021). 

In short, at the present time, workers 

are becoming sick and dying 

unnecessarily as a result of occupational 

exposures, when there is a simple and 

effective measure, vaccination, that can 

largely prevent those deaths and 

illnesses (see Grave Danger, Section 

III.A. of this preamble). Congress 

charged OSHA with responsibility for 

issuing emergency standards when they 

are necessary to protect employees from 

grave danger. 29 U.S.C. 655(c). In light 

of the current situation, OSHA is issuing 

this emergency rule. 

References 

American Federation of Labor and Congress 

of Industrial Organizations (AFL–CIO). 

(2020, March 6). ‘‘To Address the 

Outbreak of COVID–19: A Petition for an 

OSHA Emergency Temporary Standard 

for Infectious Disease.’’ (AFL–CIO, 

March 6, 2020) 

American Federation of Labor and Congress 

of Industrial Organizations (AFL–CIO). 

(2020, May 18). ‘‘Emergency Petition For 

A Writ Of Mandamus, and Request For 

Expedited Briefing And Disposition, No. 

19–1158.’’ (AFL–CIO, May 18, 2020) 

An Act Prohibiting Discrimination Based on 

a Person’s Vaccination Status or 

Possession of an Immunity Passport; 

Montana H.B. 702. (2021, July 1). https:// 

leg.mt.gov/bills/2021/billpdf/ 

HB0702.pdf. (Montana H.B. 702 July 1, 

2021) 

Arizona Executive Order 2021–18. (2021, 

August 16). https://azgovernor.gov/sites/ 

default/files/eo_2021-18.pdf. (AZ 

Executive Order 2021–18, August 16, 

2021) 

Arkansas H.B. 1977. (2021, October 1). To 

Provide Employee Exemptions From 

Federal Mandates and Employer 

Mandates Related to Coronavirus 2019 

(COVID–19); and to Declare an 

Emergency. https://

www.arkleg.state.ar.us/Bills/ 

FTPDocument?path=%2

FAMEND%2F2021R%2FPublic

%2FHB1977–H1.pdf. (Arkansas H.B. 

1977, October 1, 2021) 

Arkansas S.B. 739. (2021, October 4). An Act 

Concerning Employment Issues Related 

to Coronavirus 2019 (COVID–19); To 

Provide Employee Exemptions From 

Federal Mandates and Employer 

Mandates Related to Coronavirus 2019 

(COVID–19); To Declare and Emergency; 

and For Other Purposes. https://

www.arkleg.state.ar.us/Bills/ 

FTPDocument?path=%2

FBills%2F2021R%2

FPublic%2FSB739.pdf. (Arkansas S.B. 

739, October 4, 2021) 

Blumenthal R, Murray P, Duckworth T, Casey 

RP, Baldwin B, Brown S, Menendez R. 

(2020, April 8). ‘‘COVID–19 ETS 

Petition.’’ (Blumenthal et al., April 8, 

2020) 

Bollinger R and Ray R. (2021, July 23). New 

Variants of the Coronavirus: What You 

Should Know. Johns Hopkins Medicine. 

https://www.hopkinsmedicine.org/ 

health/conditions-and-diseases/ 

coronavirus/a-new-strain-of-coronaviruswhat-you-should-know. (Bollinger and 

Ray, July 23, 2021) 

Brown S, Murray P, Baldwin T, Bennet MF, 

Casey Jr. RP, Whitehouse S, Hirono MK, 

Blumenthal R, Van Hollen C, Masto CC, 

Sanders B, Reed J, Harris KD, Wyden R, 

Durbin RJ, Booker CA, Warren E, Leahy 

PJ. (2020, April 30). ‘‘COVID–19 ETS 

Petition.’’ (Brown et al., April 30, 2020) 

Carome M. (2020, March 13). ‘‘Letter 

requesting an immediate OSHA 

emergency temporary standard for 

infectious disease.’’ (Carome, March 13, 

2020) 

Cartwright M, Kaptur M, Roybal-Allard L, 

Foster B. (2020, May 7). ‘‘COVID–19 ETS 

Petition.’’ (Cartwright et al., May 7, 2020) 

Castro J, Espaillat A, Ca ́rdenas T, OcasioCortez A, Sablan GKC, Garcia J, Gallego 

R, Escobar V, Vargas J, Trahan L, Torres 

NJ, Correa L, Barraga ́n ND, Serrano JE, 

Cisneros Jr. GR, Napolitano GF, 

Velazquez NM, Garcia SR, Grijalva R. 

(2020, April 29). ‘‘COVID–19 ETS 

Petition.’’ (Castro et al., April 29, 2020) 

Centers for Disease Control and Prevention 

(CDC). (2020, August 27). Previous U.S. 

Covid-19 Case Data. https://

www.cdc.gov/coronavirus/2019-ncov/ 

covid-data/previouscases.html. (CDC, 

August 27, 2020) 

Centers for Disease Control and Prevention 

(CDC). (2021, May 21). Interim Estimates 

of Vaccine Effectivness of PfizerBioNTech and Moderna COVID–19 

Vaccines Among Health Care 

Personnel—33 U.S. Sites, January–March 

2021. https://www.cdc.gov/mmwr/ 

volumes/70/wr/mm7020e2.htm. (CDC, 

May 21, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, August 26). Delta Variant: 

What We Know About the Science. 

https://www.cdc.gov/coronavirus/2019- 

ncov/variants/delta-variant.html?s_

cid=11512:cdc%20delta

%20variant:sem.ga:p:RG:GM:

gen:PTN:FY21. (CDC, August 26, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, October 4). SARS–CoV–2 

Variant Classifications and Definitions. 

https://www.cdc.gov/coronavirus/2019- 

ncov/variants/variant-info.html. (CDC, 

October 4, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, October 18). COVID Data 

Tracker. https://covid.cdc.gov/coviddata-tracker/. (CDC, October 18, 2021) 

DeVito J. (2020, March 12). ‘‘Grant OSHA 

emergency standard for COVID–19 to 

protect frontline workers.’’ (DeVito, 

March 12, 2020) 

Doughton S. (2021, February 9). Can a fourth 

wave of COVID–19 be prevented? Not 

likely, says Fred Hutch model—but the 

curve could be flattened. The Seattle 

Times. https://www.seattletimes.com/ 

seattle-news/health/can-a-fourth-waveof-covid-19-be-prevented-not-likely-saysfred-hutch-model-but-the-curve-couldbe-flattened/. (Doughton, February 9, 

2021) 

Firozee P and Dupree J. (2021, October 18). 

Coronavirus numbers are dropping. More 

vaccinations can prevent a winter surge, 

Fauci says. The Washington Post. 

https://www.washingtonpost.com/ 

health/2021/10/18/faucis-americanscan-prevent-winter-pandemic-surge/. 

(Firozee and Dupree, October 18, 2021) 

Florida Executive Order 21–102. (2021, May 

3). https://www.flgov.com/wp-content/ 

uploads/orders/2021/EO_21-102.pdf. 

(Florida Executive Order 21–102, May 3, 

2021) 

Food and Drug Administration (FDA) (2021, 

August 23). FDA Approves First COVID– 

19 Vaccine. https://www.fda.gov/newsevents/press-announcements/fdaapproves-first-covid-19-vaccine. (FDA, 

August 23, 2021) 

Frosh BE, Becerra X, Weiser PJ, Jennings K, 

Racine KA, Raoul K., Frey AM, Healey 

M., Nessel D, Ellison K, Ford AD, Grewal 

GS, Balderas H, James L, Rosenblum EF, 

Shapiro J, Neronha P, Herring MP, 

Ferguson B, Kaul JL. (2020, May 12). 


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17As explained in the Grave Danger section, this 

ETS focuses on protecting unvaccinated workers 

from the grave danger that COVID–19 poses in the 

workplace. OSHA did not include fully vaccinated 

workers in its finding of grave danger because such 

workers are generally much better protected from 

the effects of COVID–19, and, in particular, the 

most severe effects, than workers who are 

unvaccinated. OSHA’s action in adopting this ETS 

for unvaccinated workers does not mean that 

vaccinated workers do not face a significant risk 

from COVID–19, or that the OSH Act’s general duty 

clause poses no obligation on employers to protect 

their vaccinated workers from COVID–19. Indeed, 

symptomatic infections can occur in fully 

vaccinated people, and COVID–19 therefore poses 

at least some risk to vaccinated workers. OSHA has 

requested comment on the risks faced by vaccinated 

workers from COVID–19, and what additional 

measures, if any, should be taken to protect both 

vaccinated and unvaccinated workers (see Request 

for Comments, Section I.B. of this preamble). 

‘‘COVID–19 ETS Petition.’’ (Frosh et al., 

May 12, 2020) 

League of United Latin American Citizens 

(LULAC). (2020, March 31). ‘‘COVID–19 

ETS Petition.’’ (LULAC, March 31, 2020) 

Luong M. (2020, April 30). ‘‘Petition for an 

OSHA Emergency Temporary Standard 

for Airborne Infectious Diseases.’’ 

(Luong, April 30, 2020) 

Menendez R, Murray P, Baldwin T, Brown S, 

Duckworth T, Booker CA, Warren E. 

(2020). ‘‘Urge DOL to Direct OSHA to 

Issue Comprehensive Emergency 

Temporary Standard (ETS) To Protect 

Workers Against COVID–19.’’ (Menendez 

et al., March 9, 2020) 

Meuser D. (2020, May 1). ‘‘COVID–19 ETS 

Petition.’’ (Meuser, May 1, 2020) 

Moore KA et al. (2020, April 30). COVID–19: 

The CIDRAP Viewpoint. Part 1: The 

Future of the COVID–19 Pandemic: 

Lessons Learned from Pandemic 

Influenza. University of Minnesota 

Center for Infectious Disease Research 

and Policy. https://

www.cidrap.umn.edu/sites/default/files/ 

public/downloads/cidrap-covid19- 

viewpoint-part1_0.pdf. (Moore et al., 

April 30, 2020) 

Murray E. (2021, October 18). Vermont sets 

new positive COVID daily case record as 

delta surge continues. Burlington Free 

Press. https://

www.burlingtonfreepress.com/story/ 

news/local/2021/10/18/covid-vermontnew-daily-positive-case-record-set/ 

8505021002/. (Murray, October 18, 2021) 

Murray P, Brown S, Heinrich M, Brown S, 

Blumenthal R., Markey EJ, Van Hollen C, 

Durbin RJ, Smith T, Whitehouse S, 

Wyden R, King Jr. AS, Kaine T, Reed J, 

Menedez R, Gillibrand K, Duckworth T, 

Warren E, Hassan MW, Casey Jr. RP, 

Sanders B, Udall T, Hirono MK, Harris 

KD, Feinstein D, Klobuchar A, Booker 

CA, Shaheen J, Cardin B. (2020, April 

29). ‘‘COVID–19 ETS Petition.’’ (Murray 

et al., April 29, 2020) 

National Nurses United (NNU). (2020, March 

4). ‘‘National Nurses United Petitions 

OSHA for an Emergency Temporary 

Standard on Emerging Infectious 

Diseases in Response to COVID–19.’’ 

(NNU, March 4, 2020) 

Novoa M. (2020, June 24). ‘‘Direct OSHA to 

issue an emergency temporary standard 

to protect all workers from COVID–19 

now!’’ (Novoa, June 24, 2020) 

Occupational Safety and Health 

Administration (OSHA). Letter from 

Loren Sweatt to Congressman Robert C. 

‘‘Bobby’’ Scott. (OSHA, March 18, 2020) 

ORCHSE Strategies. (2020, October 9). 

‘‘Petition to the U.S. Department of 

Labor—Occupational Safety and Health 

Administration (OSHA) for an 

Emergency Temporary Standard (ETS) 

for Infectious Disease.’’ (ORCHSE, 

October 9, 2020) 

Owen M. (2020, March 19). ‘‘Grant OSHA 

emergency standard to protect frontline 

workers from COVID–19.’’ (Owen, March 

19, 2020) 

Pellerin C. (2020, March 19). ‘‘Grant OSHA 

emergency standard to protect frontline 

workers from COVID–19.’’ (Pellerin, 

March 19, 2020) 

Price D, Pocan M, Schakowsky J, DeLauro 

RL. (2020, May 1). ‘‘COVID–19 ETS 

Petition.’’ (Price et al., May 1, 2020) 

Public Citizen. (2020, March 13). ‘‘Support 

for AFL–CIO’s Petition for an OSHA 

Emergency Temporary Standard for 

Infectious Disease to Address the 

Epidemic of Novel Coronavirus Disease.’’ 

(Public Citizen, March 13, 2020) 

Raskin J. (2020, April 29). ‘‘COVID–19 ETS 

Petition.’’ (Raskin, April 29, 2020) 

Scobie HM et al. (2021, September 17). 

Monitoring Incidence of COVID–19 

Cases, Hospitalizations, and Deaths, by 

Vaccination Status—13 U.S. 

Jurisdictions, April 4–July 17, 2021. 

MMWR Morb Mortal Wkly Rep 2021; 70: 

early release. https://www.cdc.gov/ 

mmwr/volumes/70/wr/mm7037e1.htm. 

(Scobie et al., September 17, 2021) 

Scott RC and Adams AS. (2020, January 30). 

‘‘Prioritize OSHA’s Work on Infectious 

Diseases Standard/Immediate Issue of 

Temporary Standard.’’ (Scott and 

Adams, January 30, 2020) 

Slotnik D. (2021, October 18). Coronavirus 

cases rise in the northern U.S. amid 

lower temperatures. The New York 

Times. https://www.nytimes.com/live/ 

2021/10/18/world/covid-delta-variantvaccine#covid-cases-us-winter. (Slotnik, 

October 18, 2021) 

International Association of Sheet Metal, Air, 

Rail and Transportation Workers 

(SMART). (2020, March 30). ‘‘Petition for 

Emergency Standards.’’ (SMART, March 

30, 2020) 

Solt BE. (2020, April 28). ‘‘COVID–19 ETS 

Petition’’ (Solt, April 28, 2020) 

Talbott R and Adely R. (2020, May 4). 

‘‘Rulemaking Petition to the United 

States Department of Labor Occupational 

Safety and Health Administration.’’ 

(Talbott and Adely, May 4, 2020) 

Texas Executive Order GA–34. (2021, March 

2). https://open.texas.gov/uploads/files/ 

organization/opentexas/EO-GA-34- 

opening-Texas-response-to-COVIDdisaster-IMAGE-03-02-2021.pdf. (Texas 

Executive Order GA–34, March 2, 2021) 

Texas Executive Order GA–40. (2021, 

October 11). https://gov.texas.gov/ 

uploads/files/press/EO-GA-40_

prohibiting_vaccine_mandates_

legislative_action_IMAGE_10-11- 

2021.pdf. (Texas Executive Order GA– 

40, October 11, 2021) 

United Food and Commercial Workers 

International Union (UFCW) and 

American Federation of Labor and 

Congress of Industrial Organizations 

(AFL–CIO). (2021, June 24). ‘‘Petition for 

Review, filed with the D.C. Circuit on 

June 24, 2021.’’ (UFCW and AFL–CIO, 

June 24, 2021) 

Wellington M. (2020, March 12). ‘‘Grant 

OSHA emergency standard for COVID– 

19 to protect front-line workers’’ 

(Wellington, March 12, 2020) 

World Health Organization (WHO). (2021, 

October 12). Tracking SARS–CoV–2 

variants. https://www.who.int/en/ 

activities/tracking-SARS-CoV-2-variants/ 

. (WHO, October 12, 2021) 

Yborra G. (2020, March 19). ‘‘Grant OSHA 

emergency standard to protect frontline 

workers from COVID–19.’’ (Yborra, 

March 19, 2020) 

II. This ETS Is Necessary To Protect 

Unvaccinated Employees From Grave 

Danger 

As explained at length in the 

preceding section (Grave Danger, 

Section III.A. of this preamble), OSHA 

has determined that most unvaccinated 

workers across the U.S. economy are 

facing a grave danger posed by the 

COVID–19 hazard.17 This new hazard 

has taken the lives of more than 725,000 

people—many of them workers—in the 

United States since it was first detected 

in this country in early 2020. As the 

federal agency tasked with protecting 

the safety and health of workers in the 

United States, OSHA is required to act 

when it finds that workers are exposed 

to a grave danger. 29 U.S.C. 655(c)(1). 

OSHA now finds that this emergency 

temporary standard is necessary to 

protect employees who are 

unvaccinated. Asbestos Info. Ass’n, 727 

F.2d at 423 (‘‘failure to act does not 

conclusively establish that a situation is 

not an emergency . . . [when there is a 

grave danger to workers,] to hold that 

because OSHA did not act previously it 

cannot do so now only compounds the 

consequences of the Agency’s failure to 

act.’’). As explained in detail below, 

OSHA has determined that vaccination 

is the most effective control for abating 

the grave danger that unvaccinated 

employees face from the COVID–19 

hazard. And, for workers who are not 

vaccinated, the use of testing, face 

coverings, and removal from the 

workplace, while not as effective as 

vaccination, is still effective and 

necessary. 

OSHA has determined that the best 

method for addressing the grave danger 

that COVID–19 poses to unvaccinated 

workers is to strongly encourage the use 

of the single most effective and efficient 

protection available: Vaccination. OSHA 


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has long recognized the importance of 

vaccinating workers against preventable 

illnesses to which they may be exposed 

on the job. See 56 FR 64004, 64152 (Dec. 

6, 1991) (discussing requirement in 

Bloodborne Pathogens standard for 

employer to make hepatitis B vaccine 

available to any employees with 

occupational exposure to blood and 

other potentially infectious materials). 

As explained in Grave Danger (Section 

III.A. of this preamble), COVID–19 

vaccines do not completely eliminate 

the potential for infection, but 

significantly reduce the likelihood of 

infection, and in turn, transmission of 

the virus to others. Data from clinical 

trials for all three vaccines and 

observational studies for the two mRNA 

vaccines clearly establish that fully 

vaccinated persons have a greatly 

reduced risk of SARS–CoV–2 infection 

compared to unvaccinated individuals 

(see FDA, December 11, 2020; FDA, 

December 18, 2020; FDA, February 26, 

2021). 

More importantly, vaccination is the 

single most effective method for 

protecting workers from the most 

serious consequences of a COVID–19 

infection: Hospitalization and death. 

Although symptomatic infections can 

occur in fully vaccinated people, they 

are less likely to occur, and are far less 

likely to result in severe health 

outcomes or death. As discussed in 

Grave Danger (Section III.A. of this 

preamble), studies have established that 

the available COVID–19 vaccines are 

highly effective at preventing 

hospitalization, and even more effective 

at preventing death. For example, one 

study found that unvaccinated adults 

age 18 to 49 were 15.2 times more likely 

to be hospitalized and 17.2 times more 

likely to die of COVID–19 than fully 

vaccinated people in the same age 

range, and unvaccinated adults age 50 to 

64 were 10.9 times more likely to be 

hospitalized and 17.9 times more likely 

to die than their fully vaccinated peers 

(Scobie et al., September 17, 2021). The 

New York Times reported on October 1, 

2021, that of the approximately 100,000 

individuals who died of COVID–19 

since mid-June 2021, less than 3% had 

been identified by the CDC as 

vaccinated individuals (Boseman and 

Leatherby, October 1, 2021). 

Vaccines are also uniquely effective 

when compared to non-pharmaceutical 

methods for controlling exposure to 

COVID–19 at the workplace. To be sure, 

non-pharmaceutical controls play an 

important role in employers’ efforts to 

prevent exposure to the virus; as 

discussed in detail earlier, OSHA has, 

throughout the pandemic, advised 

employers to implement various 

administrative, engineering, and other 

controls to reduce workplace exposure 

to the virus. And, for certain work 

settings in the healthcare industry 

where people with COVID–19 are 

reasonably expected to be present, 

OSHA both encouraged vaccination and 

mandated a suite of protections, many 

of which involve physical controls (see 

29 CFR 1910.502). Indeed, workers who 

work indoors and near others are best 

protected from COVID–19 when they 

are fully vaccinated and their exposure 

to COVID–19 is reduced (to the extent 

possible) by non-pharmaceutical 

controls. 

Non-pharmaceutical controls, 

however, focus on preventing employee 

exposure to the virus, and do not 

directly affect an employee’s immune 

response if exposure to the virus does 

occur. Additionally, nonpharmaceutical controls often rely on 

the actions of individuals and/or the 

integrity of equipment to be effective; 

for example, to use PPE to control 

exposure, a worker must correctly don 

appropriate PPE each time there is 

potential exposure, must properly clean, 

store, and maintain the PPE between 

uses, and must replace the PPE when it 

is no longer effective (see, e.g., 29 CFR 

1910.132 (general PPE requirements in 

general industry workplaces)). 

Accordingly, OSHA standards have 

always followed the principle of the 

hierarchy of controls, under which 

employers must control hazards by 

means other than PPE whenever 

feasible, and PPE is a supplementary 

control. See e.g., 29 CFR 1910.134(a); 29 

CFR 1910.1030(d)(2). 

Physical distancing requires workers 

to maintain constant awareness of their 

environment in order to avoid coming 

into close proximity with colleagues, 

customers, or other individuals, even 

though the realities of their jobs and/or 

the design of the workplace may be 

unaccommodating to that effort. 

Requiring employees to examine 

themselves for signs and symptoms 

consistent with SARS–CoV–2 infection 

before reporting to work is prone to 

human error and entirely ineffective 

when the employee is infected but 

asymptomatic or pre-symptomatic. 

In contrast, a worker is considered 

fully vaccinated after completing 

primary vaccination with a COVID–19 

vaccine, or the second dose of any 

combination of two doses of a COVID– 

19 vaccine that is approved, authorized, 

or listed as a two-dose primary 

vaccination by the FDA or WHO (see the 

Summary and Explanation for 

paragraph (c), Section VI.C. of this 

preamble). Once fully vaccinated, a 

worker enjoys automatic and longlasting benefits; namely, a drastic 

reduction in the risk of severe health 

effects or death. The vaccine works by 

bolstering the worker’s immune system 

and does not depend on the worker’s 

acumen or actions to afford its 

protection. Moreover, where an 

employer implements one or more nonpharmaceutical controls at the 

workplace, vaccination provides 

workers with a backstop of protection 

that greatly reduces their risk of serious 

health effects if they are exposed to the 

virus despite the presence of other 

controls. Vaccination thus ensures that 

workers need not rely on other factors, 

be it the workplace environment, the 

effectiveness of equipment, or the 

actions of other individuals, to be 

substantially protected from the worst 

potential outcomes of a COVID–19 

infection. 

This ETS focuses on encouraging 

vaccination because it is the most 

efficient and effective method for 

addressing the grave danger. 

Vaccination is patently appropriate and 

feasible for almost every worker in all 

industries, and will drastically reduce 

the risk that unvaccinated workers will 

suffer the serious health outcomes 

associated with SARS–CoV–2 infection. 

As described in Section III.A. of this 

preamble (Grave Danger), employees 

who are unvaccinated are in grave 

danger from the SARS–CoV–2 virus, but 

employees who are fully vaccinated are 

not. Since it is the lack of vaccination 

that results in grave danger, vaccination 

will best allay the grave danger. This 

ETS, which is designed to strongly 

encourage vaccination, is thus 

‘‘necessary to protect employees’’ from 

a grave danger. 29 U.S.C. 655(c). 

OSHA continues to encourage 

employers to implement additional 

controls that may be appropriate to 

eliminate exposure to the SARS–CoV–2 

virus at their workplace, but, as 

discussed further below, OSHA has not 

required employers to implement a 

comprehensive and multilayered set of 

COVID–19 exposure controls in this 

ETS. This decision reflects the 

extraordinary and exigent circumstances 

have required OSHA to immediately 

promulgate this emergency temporary 

standard. Although OSHA was able to 

design a comprehensive infection 

prevention program for the specific 

healthcare settings to which the June 

2021 Healthcare ETS applied, this rule 

encompasses all industries covered by 

the OSH Act, and targets unvaccinated 

workers in any indoor work setting not 

covered by the Healthcare ETS where 

more than one person is present. 

Crafting a multi-layered standard that is 

comprehensive and feasible for all 


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covered work settings, including mixed 

settings of vaccinated and unvaccinated 

workers, is an extraordinarily 

challenging and complicated 

undertaking, yet the grave danger that 

COVID–19 poses to unvaccinated 

workers obliges the agency to act as 

quickly possible. As discussed above, 

OSHA has identified vaccination as the 

single most efficient and effective means 

for removing an unvaccinated worker 

from the grave danger. 

Given the urgency of the rulemaking, 

and the singular effectiveness of 

vaccination in removing unvaccinated 

workers from the grave danger, OSHA is 

promulgating this ETS to immediately 

address the grave danger that COVID–19 

poses to unvaccinated workers by 

strongly encouraging vaccination. As 

discussed in Pertinent Legal Authority 

(Section II. of this preamble), a ‘‘grave 

danger’’ represents a risk greater than 

the ‘‘significant risk’’ that OSHA must 

show in order to promulgate a 

permanent standard under section 6(b) 

of the OSH Act, 29 U.S.C. 655(b). OSHA 

will consider whether it is necessary to 

require additional controls to avert a 

significant risk of harm in the 

rulemaking proceedings that follow this 

ETS. OSHA directs employers to its 

website, www.osha.gov/coronavirus, 

and the CDC’s website, www.cdc.gov/ 

coronavirus, for guidance on the 

engineering, administrative, and other 

exposure controls that may be effective 

and appropriate for their workplace. 

OSHA expects that, by strongly 

encouraging vaccination, this ETS will 

have a positive impact on worker 

health. As discussed above, millions of 

workers remain unvaccinated and are 

presently exposed to risks of 

hospitalization and death many times 

higher than their vaccinated coworkers. 

Although predicting the health impact 

of this ETS is particularly challenging, 

given the ever-changing nature of the 

pandemic and the many factors that 

may motivate workers to become fully 

vaccinated, OSHA has attempted to 

quantify the potential number of 

hospitalizations and fatalities that this 

ETS could avert by increasing workforce 

vaccination rates (see OSHA, October 

2021c). OSHA has estimated that, as a 

result of the ETS, over 6,500 fewer 

currently unvaccinated workers will die 

from COVID–19 over the next six 

months. OSHA also estimates that this 

ETS will prevent over 250,000 currently 

unvaccinated workers from being 

hospitalized during that same time 

period. Even if OSHA’s estimate does 

not prove to be precisely accurate, 

OSHA is confident that this ETS will 

save hundreds of lives and prevent 

thousands of workers from becoming 

severely ill. 

a. OSHA Finds It Necessary To Strongly 

Encourage Vaccination 

Despite the proven safety and efficacy 

of the available COVID–19 vaccines, 

many workers remain unvaccinated and 

are currently exposed to a grave danger. 

As discussed in Grave Danger (Section 

III.A. of this preamble), countless 

COVID–19 outbreaks have occurred in 

myriad work settings where employees 

come into contact with others, and in 

recent weeks, the majority of states in 

the U.S. have experienced what CDC 

defines as high or substantial 

community transmission, indicating 

that there is a clear risk of the virus 

being introduced into and circulating in 

workplaces (CDC, October 18, 2021— 

Community Transmission Rates). As of 

October 18, 2021, more than 184 million 

people in the United States have been 

fully vaccinated, but only 68.5% of 

people ages 18 years or older are fully 

vaccinated (CDC, October 18, 2021— 

Fully Vaccinated). OSHA has estimated 

that approximately 62.4% percent of 

adults aged 18–74 within the scope of 

this ETS are either fully vaccinated or 

received their first vaccine dose during 

the previous two weeks, leaving 

approximately 31.7 million 

unvaccinated (i.e., not fully vaccinated 

and did not receive a first dose with in 

the past two weeks) (see Economic 

Analysis, Section IV.B. of this preamble, 

Table IV.B.7). Meanwhile, the rate of 

new vaccinations has slowed 

considerably; on October 15, 2021, the 

7-day moving average number of 

administered vaccine doses reported to 

the CDC per day was 841,731 doses, a 

steep reduction from the peak 3,448,156 

dose average that the CDC reported on 

April 11, 2021 (CDC, October 18, 2021— 

Weekly Review). 

Given the pervasiveness of the virus 

in workplaces across the country and 

the unparalleled efficacy of vaccines at 

preventing serious health effects, OSHA 

finds it necessary to strongly encourage 

vaccination. Encouraging vaccination is 

principally necessary to reduce the 

likelihood that workers who are infected 

by the SARS–CoV–2 virus will suffer 

the worst outcomes of an infection 

(hospitalization and death). Put simply, 

the single best method for protecting an 

unvaccinated worker from the serious 

health consequences of a COVID–19 

infection is for that worker to become 

fully vaccinated. 

Additionally, encouraging vaccination 

is necessary to reduce the overall 

prevalence of the SARS–CoV–2 virus at 

workplaces. Because vaccinated workers 

are less likely than unvaccinated 

workers to be infected by the virus, they 

are less likely to spread the virus to 

others at their workplace, including to 

unvaccinated coworkers. Increasing 

workforce vaccination rates will 

therefore reduce the risk that 

unvaccinated workers will be infected 

by a coworker. 

Evidence shows that mandating 

vaccination has proven to be an 

effective method for increasing 

vaccination rates, and that vaccination 

mandates have generally been more 

effective than merely encouraging 

vaccination. Significant numbers of 

workers would get vaccinated if their 

employers required it, and many 

workers who were vaccinated over the 

last four months were motivated by 

their employer requiring vaccination. 

The Kaiser Family Foundation (KFF) 

vaccine monitor, an ongoing research 

project tracking the public’s attitudes 

and experiences with COVID–19 

vaccinations, conducted a survey from 

September 13 to September 22, 2021, 

among a nationally representative 

random digit dial telephone sample of 

1,519 adults ages 18 and older, and 

found that those who received their first 

dose of a COVID–19 vaccine after June 

1, 2021 were motivated by mandates of 

various sorts, including one in five 

(19%) who say a major reason was that 

their employer required it (KFF, 

September 2021). A survey conducted 

by Change Research from August 30 to 

September 2, 2021 regarding Americans’ 

views on COVID–19 vaccines found that 

among the 1,775 respondents, ‘‘one of 

the things that was most likely to lead 

someone to get vaccinated was if their 

employer required it’’ (Towey, 

September 27, 2021). 

Vaccine mandates imposed by state 

governments and large employers have 

also demonstrated the effectiveness of 

mandates in increasing vaccination 

rates. For example, when Tyson Foods 

announced its vaccination requirement 

in early August 2021, only 45% of its 

workforce had received a vaccination 

dose, but as of September 30, 2021, the 

New York Times reported that has 

increased to 91% (White House, October 

7, 2021; Hirsch, September 30, 2021). 

Similarly, United Airlines reported that 

97% of its U.S.-based employees were 

fully vaccinated against COVID–19 

within a week of the deadline of the 

company’s vaccination mandate, and 

the 3% who were not fully vaccinated 

included several employees who sought 

a medical or religious exemption from 

vaccination (The Associated Press, 

September 22, 2021). In Washington 

State, the weekly vaccination rate 

increased 34% after the Governor 

announced vaccine requirements for 


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state workers (White House, October 7, 

2021). The success of these COVID–19 

vaccination mandates comports with the 

National Safety Council’s recent finding 

that employers that instituted a COVID– 

19 vaccination mandate produced a 

35% increase in employee vaccination 

(NSC, September 2021). Similarly, the 

White House recently reported that its 

analysis of vaccination requirements 

imposed by healthcare systems, 

educational institutions, public-sector 

agencies, and private businesses 

demonstrated that such requirements 

increased their vaccination rates by 

more than 20 percentage points and 

have routinely seen their share of fully 

vaccinated workers rise above 90 

percent (White House, October 7, 2021). 

Given the effectiveness of vaccination 

mandates in increasing vaccination 

rates, OSHA expects that, in most 

instances, an employer implementing a 

policy that requires all employees to be 

vaccinated will be the most effective 

approach for increasing the vaccination 

rate of its employees and ensuring that 

they have the best protection available 

against the worst consequences of a 

COVID–19 infection. Although OSHA 

may well have the authority to impose 

a vaccination mandate, OSHA has 

decided against pursuing strict 

vaccination requirement and has instead 

crafted the ETS to strongly encourage 

vaccination. Employers are in the best 

position to understand their workforces 

and the approach that will work most 

effectively with them to secure 

employee cooperation and protection. 

OSHA’s traditional practice when 

including medical procedures, such as 

medical surveillance testing and 

vaccinations, in its health standards has 

been to require the employer to make 

the medical procedure available to 

employees, and has viewed mandating 

those procedures as a measure to avoid 

if possible. For example, when the 

agency promulgated its standard 

regulating occupational exposure to 

lead, OSHA considered mandating that 

employees participate in physical 

examinations and biological monitoring, 

but ultimately required employers to 

make them available to employees (see 

43 FR 54354, 54450 (Nov. 21, 1978)). 

OSHA decided against mandating those 

procedures in part because it believed a 

voluntary approach would elicit more 

effective employee participation in the 

medical program and in part because of 

the agency’s concerns about the 

Government intruding into a private and 

sensitive area of workers’ lives (43 FR at 

54450–51). OSHA has followed that 

same approach of requiring employers 

to ‘‘provide’’ or ‘‘make available’’ 

medical procedures to employees in 

numerous subsequent standards, such 

as the standards for asbestos (29 CFR 

1910.1001), benzene (1910.1028), cotton 

dust (1910.1043), and formaldehyde 

(1910.1048). 

OSHA adhered to this approach when 

it promulgated the Bloodborne 

Pathogens standard. The agency 

considered mandating a Hepatitis B 

vaccination, but instead required 

employers to make the Hepatitis B 

vaccination available to employees. 56 

FR 64004, 64155 (Dec. 6, 1991); 29 CFR 

1910.1030(f)(1)(i), (f)(2)(i). OSHA 

explained that the agency may have the 

legal authority to mandate vaccination, 

but believed that, under the 

circumstances, a voluntary vaccination 

program would ‘‘foster greater employee 

cooperation and trust in the system’’ 

and ‘‘enhance [ ] compliance while 

respecting individuals’ beliefs and 

rights to privacy.’’ 56 FR at 64155. 

In keeping with this traditional 

practice, the agency has stopped short of 

including a strict vaccination mandate 

with no alternative compliance option 

in this ETS. OSHA has never done so, 

and if it were to take that step, OSHA 

believes it more prudent to do so where 

the agency has ample time to fully 

assess the potential ramifications of 

imposing a vaccination mandate on 

covered employers and employees. 

Here, exigent circumstances demand 

that OSHA take immediate action to 

protect workers from the grave danger 

posed by COVID–19, but OSHA has not 

had a full opportunity to study the 

potential spectrum of impacts on 

employers and employees, including the 

economic and health impacts, that 

would occur if OSHA imposed a strict 

vaccination mandate with no alternative 

compliance option. Moreover, 

employers in their unique workplace 

settings may be best situated to 

understand their workforce and the 

strategies that will maximize worker 

protection while minimizing workplace 

disruptions. These considerations 

persuade the agency that this ETS 

should afford employers some flexibility 

in the form of an alternative option to 

strictly mandating vaccination. In light 

of the unique and grave danger posed by 

COVID–19, OSHA has requested 

comment on whether a strict 

vaccination mandate is warranted and 

the agency will consider all the 

information it receives as it determines 

how to proceed with this rulemaking 

(see Request for Comment, Section I.B. 

of this preamble). 

Although this ETS does not impose a 

strict vaccination mandate, OSHA has 

determined that, to adequately address 

the grave danger that COVID–19 poses 

to unvaccinated workers, a more 

proactive approach is necessary than 

simply requiring employers to make 

vaccination available to employees. 

None of the standards that OSHA 

promulgated prior to this year 

concerned an infectious agent as readily 

transmissible as COVID–19. Standards 

like the Lead standard do not concern 

infectious agents that can be transmitted 

between individuals at a workplace; 

accordingly, the medical procedures 

that employers are required to make 

available under those standards are 

solely aimed at protecting the health of 

the worker who is undergoing the 

procedure. The Bloodborne Pathogens 

standard concerned exposure to 

infectious biological agents (Hepatitis B 

and HIV) that can be transmitted 

between individuals, but the potential 

for those agents to be transmitted 

between workers is minimal in 

comparison to the SARS–CoV–2 virus; 

Hepatitis B and HIV are transmitted 

through blood and certain body fluids, 

whereas the SARS–CoV–2 virus spreads 

through respiratory droplets that can 

travel through the air from worker-toworker (see Grave Danger, Section III.A. 

of this preamble). Vaccination against 

COVID–19 is thus particularly 

important in reducing the potential for 

workers to become infected and spread 

the virus to others at the workplace, in 

addition to protecting the worker from 

severe health outcomes if they are 

infected. Moreover, the ease with which 

the SARS–CoV–2 virus spreads between 

workers makes it more urgent for 

workers to be vaccinated, and this 

urgency contributes to the agency’s 

decision to strongly encourage 

vaccination. 

Accordingly, to further the goal of 

increasing workforce vaccination rates, 

this ETS requires employers to 

implement a mandatory vaccination 

policy unless they adopt a policy in 

which employees may either be fully 

vaccinated or regularly tested for 

COVID–19 and wear a face covering in 

most situations when they work near 

other individuals. Employers have the 

duty under the OSH Act to provide safe 

workplaces to their employees, 

including protecting employees from 

known hazards by complying with 

occupational safety and health 

standards (see 29 U.S.C. 654), and this 

ETS therefore provides employers with 

two compliance options for protecting 

unvaccinated workers from the grave 

danger posed by COVID–19. But while 

this ETS offers employers a choice in 

how to comply, OSHA has presented 

implementation of a vaccination 

mandate as the preferred compliance 


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option; as discussed above, vaccine 

mandates have proven to be effective in 

increasing vaccination rates, and OSHA 

expects that, in most instances, 

implementing a vaccination mandate 

will be the most effective method for 

increasing a workforce’s vaccination 

rate. As discussed below, OSHA also 

recognizes that requiring that all 

employees be vaccinated provides more 

protection to vaccinated workers than 

regularly testing unvaccinated workers 

for COVID–19 and requiring them to 

wear face coverings when they work 

near others. This ETS will preempt 

inconsistent state and local 

requirements, including requirements 

that ban or limit employers’ authority to 

require vaccination (see the Summary 

and Explanation for paragraph (a), 

Section VI.A. of this preamble), and will 

therefore provide the necessary legal 

authorization to covered employers to 

implement mandatory vaccination 

policies, if they choose to comply in this 

preferred manner. 

Although the ETS does not require all 

covered employers to implement a 

mandatory vaccination policy, OSHA 

expects that employers that choose that 

compliance option will enjoy 

advantages that employers that opt out 

of the vaccination mandate option will 

not. Most obviously, employers with a 

mandatory vaccination policy will enjoy 

a dramatically reduced risk that their 

employees will become severely ill or 

die of a COVID–19 infection. In 

addition, employers who implement a 

vaccination mandate will likely have 

fewer workers temporarily removed 

from the workplace due to a COVID–19 

positive test; this rule requires all 

covered employers to remove from the 

workplace any employee who tests 

positive for COVID–19 or receives a 

diagnosis of COVID–19 (see the 

Summary and Explanation for 

paragraph (h), Section VI.H. of this 

preamble), and because vaccinated 

workers are less likely than 

unvaccinated workers to be infected by 

the virus, OSHA expects employers 

with a mandatory vaccination policy 

will be statistically less likely to be 

obliged to remove a COVID-positive 

employee from the workplace in 

accordance with paragraph (h)(2). 

Additionally, only employers who 

decline to implement a mandatory 

vaccination program are required by the 

rule to assume the administrative 

burden necessary to ensure that 

unvaccinated workers are regularly 

tested for COVID–19 and wear face 

coverings when they work near others. 

Where employers opt out of 

implementing a mandatory vaccination 

program, the ETS encourages employees 

to elect to be fully vaccinated. As 

discussed in the Summary and 

Explanation for paragraph (f) (Section 

VI.F. of this preamble), the ETS requires 

all covered employers to support 

vaccination by providing employees 

with reasonable time, including up to 

four hours of paid time, to receive each 

vaccination dose, and reasonable time 

and paid sick leave to recover from 

vaccination side effects. Many workers 

have been deterred from receiving 

vaccination by fears of missing work 

and/or losing pay to obtain vaccination 

and/or recover from side effects (see 

Section VI.F. of this preamble; see, e.g., 

KFF, May 6, 2021; KFF, May 17, 2021), 

and OSHA finds that this employer 

support is necessary to ensure that 

employees can become fully vaccinated 

without concern that they will be 

sacrificing pay or their jobs to do so. 

All covered employers are required by 

the ETS to bear the cost of providing up 

to four hours of paid time and 

reasonable paid sick leave needed to 

support vaccination, but where an 

employee chooses to remain 

unvaccinated, the ETS does not require 

employers to pay for the costs 

associated with regular COVID–19 

testing or the use of face coverings (see 

the Summary and Explanation for 

paragraphs (g) and (i), Sections VI.G. 

and VI.I. of this preamble). In some 

cases, employers may be required to pay 

testing and/or face covering costs under 

other federal or state laws or collective 

bargaining obligations, and some may 

choose to do so even without such a 

mandate, but otherwise employees will 

be required to bear the costs if they 

choose to be regularly tested and wear 

a face covering in lieu of vaccination. 

This ETS more strongly encourages 

vaccination than the June 2021 

Healthcare ETS. OSHA designed the 

Healthcare ETS, which addresses the 

grave danger that COVID–19 poses 

workers in specific health care settings 

where COVID–19-positive individuals 

are reasonably likely to be present, to 

encourage vaccination (see 86 FR at 

32415, 32423, 32565, 32597). 

Specifically, the Healthcare ETS 

encourages vaccination by requiring 

employers to provide employees 

reasonable and paid time to receive 

vaccination doses and recover from side 

effects (29 CFR 1910.502(m)), and by 

exempting from its scope ‘‘well-defined 

hospital ambulatory care settings where 

all employees are fully vaccinated’’ and 

all non-employees are screened and 

denied entry if they are suspected or 

confirmed to have COVID–19 

(1910.502(a)(2)(iv)) and ‘‘home 

healthcare settings where all employees 

are fully vaccinated’’ and all 

nonemployees at that location are 

screened prior to employee entry so that 

people with suspected or confirmed 

COVID–19 are not present (1910.502 

(a)(2)(v)). 

Similar to the Healthcare ETS, this 

ETS requires employers to support 

vaccination by providing employees 

with reasonable time, including up to 

four hours of paid time, to receive 

vaccination, and reasonable time and 

paid sick leave to recover from 

vaccination side effects (see discussion 

above and the Summary and 

Explanation for paragraph (f), Section 

VI.F. of this preamble). However, as 

discussed above, this ETS goes further 

and expressly requires the 

implementation of a mandatory 

vaccination policy, unless the employer 

implements an alternative policy that 

requires unvaccinated workers to be 

regularly tested for COVID–19 and to 

wear face coverings in most situations 

when they work near others. While 

nothing in the Healthcare ETS prohibits 

covered employers from implementing a 

mandatory vaccination policy, this ETS 

presents the implementation of a 

mandatory vaccination policy as a 

preferred compliance option, and will 

preempt inconsistent state and local 

requirements that ban or limit 

employers’ authority to require 

vaccination. Additionally, where the 

employer opts out of implementing a 

mandatory vaccination policy, and the 

employee opts out of vaccination, this 

ETS places no obligation on the 

employer to pay for costs associated 

with the regular testing of unvaccinated 

workers for COVID–19 or their use of 

face coverings, which will provide a 

financial incentive for some employees 

to be fully vaccinated. 

OSHA finds it necessary to more 

strongly encourage vaccination in this 

ETS than in the Healthcare ETS in the 

manner described above. The 

Healthcare ETS’s provisions that 

encouraged vaccination were packaged 

with a comprehensive infection 

prevention program that was tailored to 

the specific healthcare work settings to 

which the ETS applied, including a 

suite of layered and overlapping 

controls. In contrast, OSHA is 

promulgating this ETS to address the 

grave danger that COVID–19 now poses 

to all unvaccinated workers who work 

indoors and in the presence of others. 

As mentioned above, crafting a 

comprehensive and multi-layered 

standard that is comprehensive and 

feasible for the myriad work settings to 

which this ETS will apply, including 

workplaces as diverse as schools, 

restaurants, retail settings, offices, 

prisons, and factories, is an 


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extraordinarily challenging and 

complicated undertaking. 

Exigent circumstances require OSHA 

to immediately promulgate this ETS to 

protect unvaccinated workers, and 

vaccination is the single most efficient 

and effective method for removing 

unvaccinated workers from the grave 

danger. Given the urgency of the 

rulemaking and the singular efficacy of 

vaccination, OSHA has decided against 

including comprehensive and 

multilayered exposure controls in this 

ETS, and is instead focusing the ETS on 

strongly encouraging vaccination. 

Strongly encouraging vaccination is 

thus critical to the effectiveness of this 

ETS at protecting unvaccinated workers 

from the grave danger. In Request for 

Comment (Section I.B. of this preamble), 

OSHA seeks information on what 

additional measures, if any, should be 

required to protect employees against 

COVID–19. 

Moreover, stronger encouragement of 

vaccination is needed in this ETS than 

in the Healthcare ETS because workers 

who are protected by the Healthcare 

ETS are more likely to be vaccinated 

and/or subject to a vaccination mandate. 

The Healthcare ETS, 29 CFR 1910.502, 

focused on healthcare work settings 

where COVID–19 is reasonably expected 

to be present, and, this ETS does not 

apply in settings where any employee 

provides healthcare services or 

healthcare support services while they 

are covered by the requirements of 29 

CFR 1910.502 (see the Summary and 

Explanation for paragraph (b), Section 

VI.B. of this preamble). Evidence shows 

that workers in settings covered by 

§ 1910.502 already have a high rate of 

vaccination. As of July 2021, healthcare 

workers had a higher rate of vaccination 

than non-healthcare workers (Lazer et 

al., August, 2021), and many healthcare 

workers are currently subject to 

vaccination mandates. Twenty-two 

states and the District of Columbia have 

instituted vaccination mandates that are 

applicable to healthcare workers 

(NASHP, October 1, 2021), and nearly 

300 hospitals and broader health 

systems have implemented vaccine 

mandates for their employees (Renton et 

al., October 14, 2021). The White House 

reported that almost 2,500 hospitals, 

40% of all U.S. hospitals, across all 50 

states, the District of Columbia, and 

Puerto Rico, have announced 

vaccination requirements for their 

workforce, and noted numerous 

examples of highly successful mandates 

in those workplaces (White House, 

October 7, 2021). News reports attest 

that many of these vaccination 

mandates have had great success in 

increasing the vaccination rate of the 

targeted healthcare workers (Goldberg, 

July 9, 2021; Otterman and Goldstein, 

September 28, 2021; Hubler, September 

30, 2021; Beer, October 4, 2021). Even 

more healthcare workers covered by 29 

CFR 1910.502 will be subject to a 

vaccination mandate under the Centers 

for Medicare & Medicaid Services (CMS) 

rule published elsewhere in this issue of 

the Federal Register that requires 

COVID–19 vaccinations for workers in 

most healthcare settings that receive 

Medicare or Medicaid reimbursement, 

including but not limited to hospitals, 

dialysis facilities, ambulatory surgical 

settings, and home health agencies. This 

CMS rule applies to at least 76,000 

providers (i.e., employers) and covers a 

majority of healthcare workers across 

the country. OSHA expects that the 

combination of incentives to 

vaccination in the Healthcare ETS and 

vaccination mandates applicable to 

healthcare workers will leave few 

healthcare workers within the scope of 

the Healthcare ETS unvaccinated. 

b. Unvaccinated Workers Must Be 

Regularly Tested for COVID–19 and Use 

Face Coverings 

As discussed above, this ETS 

presumptively requires employers to 

implement a mandatory vaccination 

policy, but permits employers to opt out 

of that requirement. Nonetheless, the 

grave danger that COVID–19 poses to 

unvaccinated workers demands that 

alternative protective measures be taken 

at workplaces where the employer does 

not implement a mandatory vaccination 

policy. Given that the SARS–CoV–2 

virus is highly contagious, transmitted 

easily through the air, and can lead to 

severe and/or fatal outcomes in 

unvaccinated workers, it is critical that 

employers who do not require their 

employees to be vaccinated implement 

controls to mitigate the potential for 

COVID–19 outbreaks to occur. As 

discussed above, and in Grave Danger 

(Section III.A. of this preamble), 

unvaccinated workers are more likely 

than vaccinated workers to be infected 

with COVID–19 and transmit the virus 

to others, and thus pose a heightened 

risk of spreading the virus at the 

workplace, including to other 

unvaccinated workers. 

To reduce the risk that unvaccinated 

workers will spread COVID–19 at the 

workplace, this rule requires employers 

that do not implement a mandatory 

vaccination policy to ensure that 

unvaccinated workers who report to a 

workplace where others are present are 

tested at least once a week for COVID– 

19. As discussed in the Summary and 

Explanation for paragraph (g) (Section 

VI.G. of this preamble), it is wellestablished that, by identifying and 

isolating infected individuals, regularly 

testing individuals for COVID–19 

infection can be an effective method for 

reducing virus transmission. Regularly 

testing unvaccinated workers is 

essential because SARS–CoV–2 

infection is often attributable to 

asymptomatic or presymptomatic 

transmission (Bender et al., February 18, 

2021; Byambasuren et al., December 11, 

2020; Johansson et al., January 7, 2021; 

Klompas et al., September 2021). In 

accordance with the CDC’s 

recommendations, OSHA has set the 

minimum frequency of testing at 7 days 

because the agency expects that it will 

be effective in slowing the spread of 

COVID–19, while taking into account 

associated cost considerations (see the 

Summary and Explanation for 

paragraph (g), Section VI.G. of this 

preamble). As noted in the Request for 

Comment (Section I.B. of this preamble), 

OSHA is gathering additional 

information about whether OSHA 

should require testing more often than 

on a weekly basis. 

The requirement for unvaccinated 

workers to be regularly tested for 

COVID–19 operates in tandem with 

paragraph (h)(2), which requires that all 

employers remove from the workplace 

any employee who receives a positive 

COVID–19 test, or a COVID–19 

diagnosis (see the Summary and 

Explanation for paragraph (h), Section 

VI.H. of this preamble). Paragraph (h)(2) 

ensures that the COVID–19-positive 

employee will be isolated from the 

workplace until it is safe for the 

employee to return, and also allows the 

employee to seek medical care sooner 

and reduce the likelihood that they will 

suffer the most severe consequences of 

an infection (e.g., by seeking 

monoclonal antibody treatment). The 

combination of the testing and medical 

removal provisions will reduce the 

likelihood that an unvaccinated worker 

who has been infected with COVID–19, 

including those who are not 

experiencing symptoms of infection, 

will be permitted to spread the virus to 

others at the workplace, including 

unvaccinated coworkers. 

Additionally, OSHA finds it necessary 

to require employers that do not 

implement a mandatory vaccination 

policy to ensure that unvaccinated 

workers wear face coverings in most 

situations when they are working near 

others. This reflects OSHA’s recognition 

that regularly testing unvaccinated 

workers for COVID–19 will not be 100% 

effective in identifying infected workers 

before they enter the workplace. Most 

obviously, testing employees once a 

week will not prevent an unvaccinated 


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worker from exposing others at the 

workplace if the worker becomes 

infected and reports to the workplace in 

between their weekly tests. And, even if 

the rule required unvaccinated workers 

to be tested more frequently than once 

a week, infected persons may still be 

missed, particularly in areas with high 

community spread (Chin et al., 

September 9, 2020). 

Accordingly, requiring unvaccinated 

workers to wear face coverings in most 

situations when they are working near 

others will further mitigate the potential 

for unvaccinated workers to spread the 

virus at the workplace. As discussed in 

the Summary and Explanation for 

paragraph (i) (Section VI.I. of this 

preamble), it is well-established that 

face coverings provide effective source 

control; that is, they largely prevent 

respiratory droplets emitted by the 

wearer of the face covering from 

spreading to others, and thus make it 

significantly less likely that the person 

wearing the mask will transmit the 

virus, if they are infected. Face 

coverings are also believed to provide 

the wearer some limited protection from 

exposure to the respiratory droplets of 

co-workers and others (e.g., customers) 

(CDC, May 7, 2021), but the principal 

benefit of face coverings is to 

significantly reduce the wearer’s ability 

to spread the virus. By requiring 

unvaccinated workers to wear face 

coverings, this rule significantly reduces 

the likelihood that an infected 

unvaccinated worker who enters the 

workplace despite the testing 

requirements will spread the virus to 

others, including unvaccinated 

coworkers. 

OSHA acknowledges that regularly 

testing unvaccinated workers for 

COVID–19 and requiring them to wear 

face coverings when they work near 

others is less protective of unvaccinated 

workers than simply requiring all 

workers to be vaccinated. To be sure, 

OSHA strongly prefers that employers 

adopt a mandatory vaccination policy, 

as vaccination is singularly effective at 

protecting workers from the severe 

consequences that can result from a 

COVID–19 infection. And, where 

employers do not adopt a mandatory 

vaccination policy, employers may also 

consider alternative feasible measures 

that would remove employees who 

remain unvaccinated from the scope of 

this ETS, such as increasing telework 

(see the Summary and Explanation for 

paragraph (b), Section VI.B. of this 

preamble). Nonetheless, as discussed 

above, OSHA has not imposed a strict 

vaccination mandate on all covered 

employees who work in the presence of 

others and not exclusively outdoors, 

given that the agency has never 

previously used its authority to strictly 

mandate vaccination, and the exigent 

and extraordinary circumstances driving 

this emergency rulemaking have not 

afforded OSHA a full opportunity to 

assess the potential ramifications of 

including a strict vaccination mandate 

in this rule. Given these circumstances, 

and employers’ unique understanding of 

the compliance approaches that will 

best increase vaccination rates among 

their workforce, OSHA has designed a 

rule that preserves a limited degree of 

employer flexibility, and strongly 

encourages, but does not strictly require, 

vaccination. OSHA has requested 

comment in this ETS on whether a strict 

vaccination mandate would be 

appropriate and the agency will 

consider those comments as it 

determines how to proceed with this 

rulemaking. 

References 

Beer T. (2021, October 4). COVID–19 Vaccine 

Mandates Are Working—Here’s The 

Proof. Forbes. https://www.forbes.com/ 

sites/tommybeer/2021/10/04/covid-19- 

vaccine-mandates-are-working-heresthe-proof/?sh=1a08d2e72305. (Beer, 

October 4, 2021) 

Bender JK et al. (2021, February 18). Analysis 

of asymptomatic and presymptomatic 

transmission in SARS–CoV–2 outbreak, 

Germany, 2020. Emerging Infectious 

Diseases. 27(4). https://doi.org/10.3201/ 

eid2704.204576. (Bender et al., February 

18, 2021) 

Boseman J and Leatherby L. (2021, October 

1). U.S. Coronavirus Death Toll 

Surpasses 700,000 Despite Wide 

Availability of Vaccines. The New York 

Times. https://www.nytimes.com/2021/ 

10/01/us/us-covid-deaths-700k.html. 

(Boseman and Leatherby, October 1, 

2021) 

Byambasuren O et al., (2020, December 11). 

Estimating the extent of asymptomatic 

COVID–19 and its potential for 

community transmission: Systematic 

review and meta-analysis. Official 

Journal of the Association of Medical 

Microbiology and Infectious Disease 

Canada. 5(4): 223–234 doi:10.3138/ 

jammi-2020-0030. (Byambasuren et al., 

December 11, 2020) 

Centers for Disease Control and Prevention 

(CDC). (2021, May 7). Science brief: 

Community use of cloth masks to control 

the spread of SARS–CoV–2. https://

www.cdc.gov/coronavirus/2019-ncov/ 

science/science-briefs/masking-scienceSARS-cov2.html. (CDC, May 7, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, October 18). COVID Data 

Tracker. https://covid.cdc.gov/coviddata-tracker/. (CDC, October 18, 2021) 

Chin E et al. (2020, September 9). Frequency 

of routine testing for COVID–19 in highrisk healthcare environments to reduce 

outbreaks. https://doi.org/10.1101/ 

2020.04.30.20087015. (Chin et al., 

September 9, 2020) 

Food and Drug Administration (FDA). (2020, 

December 11). Emergency use 

authorization for an unapproved product 

review memorandum (Pfizer-BioNTech 

COVID–19 vaccine/BNT 162b2 mRNA– 

1273). https://www.fda.gov/emergencypreparedness-and-response/coronavirusdisease-2019-covid-19/pfizer-biontechcovid-19-vaccine. (FDA, December 11, 

2020) 

Food and Drug Administration (FDA). (2020, 

December 18). Emergency use 

authorization for an unapproved product 

review memorandum (Moderna COVID– 

19 vaccine/mRNA–1273). https://

www.fda.gov/emergency-preparednessand-response/coronavirus-disease-2019- 

covid-19/moderna-covid-19-vaccine. 

(FDA, December 18, 2020) 

Food and Drug Administration (FDA). (2021, 

February 26). Janssen COVID–19 

vaccine. Vaccines and Related Biological 

Products Advisory Committee February 

26, 2021 Meeting Briefing Document. 

https://www.fda.gov/media/146219/ 

download. (FDA, February 26, 2021) 

Goldberg C. (2021, July 9). Hospital Vaccine 

Mandates Suggest Success in Boosting 

U.S. Shots. Bloomberg News. https://

www.bloomberg.com/news/articles/2021- 

07-09/early-mandates-boost-workervaccine-rates-prompt-few-to-quit. 

(Goldberg, July 9, 2021) 

Hirsch L. (2021, September 30). After 

Mandate, 91% of Tyson Workers Are 

Vaccinated. https://www.nytimes.com/ 

2021/09/30/business/tyson-foodsvaccination-mandate-rate.html. (Hirsch, 

September 30, 2021) 

Hubler S. (2021, September 30). ‘Mandates 

Are Working’: Employer Ultimatums Life 

Vaccination Rates, So Far. The New York 

Times. https://www.nytimes.com/2021/ 

09/30/us/california-vaccine-mandatehealth-care.html. (Hubler, September 30, 

2021) 

Johansson MA et al., (2021, January 7). 

SARS–CoV–2 transmission from people 

without COVID–19 symptoms. JAMA 

Network Open. 4(1): e2035057. 

doi:10.1001/jamanetworkopen.

2020.35057. (Johansson et al., January 7, 

2021) 

Kaiser Family Foundation (KFF). (2021, May 

6). KFF COVID–19 Vaccine Monitor: 

April 2021. https://www.kff.org/ 

coronavirus-covid-19/poll-finding/kffcovid-19-vaccine-monitor-april-2021/. 

(KFF, May 6, 2021) 

Kaiser Family Foundation (KFF). (2021, May 

17). How employer actions could 

facilitate equity in COVID–19 

vaccinations. https://www.kff.org/policywatch/how-employer-actions-couldfacilitate-equity-in-covid-19- 

vaccinations/. (KFF, May 17, 2021) 

Kaiser Family Foundation (KFF). (2021, 

September). Does The Public Want To 

Get A COVID–19 Vaccine? When? 

https://www.kff.org/coronavirus-covid19/dashboard/kff-covid-19-vaccinemonitor-dashboard/?utm_

source=web&utm_

medium=trending&utm_

campaign=COVID-19-vaccinemonitor#messagesandinformation. (KFF, 

September 2021) 


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18This adoption includes the citations in the 

referenced section of the Healthcare ETS, which are 

also included in the docket for this ETS. 

Klompas M et al. (2021, September). The case 

for mandating COVID–19 vaccines for 

health care workers. Annals of Internal 

Medicine. https://doi.org/10.7326/M21- 

2366. (Klompas et al., September 2021) 

Lazer D et al. (2021, August). The COVID 

States Project: A 50-State COVID–19 

Survey Report #62: COVID–19 Vaccine 

Attitudes Among Healthcare Workers. 

http://news.northeastern.edu/uploads/ 

COVID19%20CONSORTIUM%20

REPORT%2062%20HCW%20

August%202021.pdf. (Lazer et al., 

August, 2021) 

National Academy for State Health Policy 

(NASHP). (2021, October 1). State Efforts 

to Ban or Enforce COVID–19 Vaccine 

Mandates and Passports. https://

www.nashp.org/state-lawmakers-submitbills-to-ban-employer-vaccine-mandates/ 

. (NASHP, October 1, 2021) 

National Safety Council (NSC). (2021, 

September). A Year in Review, and 

What’s Next: COVID–19 Employer 

Approaches and Worker Experiences. 

https://www.nsc.org/faforms/safer-yearone-final-report. (NSC, September 2021) 

Occupational Safety and Health 

Administration (OSHA). (2021c, 

October). Health Impacts of the COVID– 

19 Vaccination and Testing ETS. (OSHA, 

October 2021c) 

Otterman S and Goldstein J. (2021, 

September 28). Thousands of N.Y. 

Health Care Workers Get Vaccinated 

Ahead of Deadline. The New York 

Times. https://www.nytimes.com/2021/ 

09/28/nyregion/vaccine-health-careworkers-mandate.html. (Otterman and 

Goldstein, September 28, 2021) 

Renton B et al. (2021, October 14). New: 

Hospital Vaccine Mandate Tracker. 

Global Epidemics, Brown School of 

Public Health. https://

globalepidemics.org/2021/07/24/newhospital-vaccine-mandate-tracker/. 

(Renton et al., October 14, 2021) 

Scobie HM et al. (2021, September 17). 

Monitoring Incidence of COVID–19 

Cases, Hospitalizations, and Deaths, by 

Vaccination Status—13 U.S. 

Jurisdictions, April 4–July 17, 2021. 

MMWR Morb Mortal Wkly Rep 2021; 70: 

early release. https://www.cdc.gov/ 

mmwr/volumes/70/wr/mm7037e1.htm. 

(Scobie et al., September 17, 2021) 

The Associated Press. (2021, September 22). 

United Airlines says 97% of US 

employees have been vaccinated. https:// 

www.wifr.com/2021/09/22/unitedairlines-say-97-us-employees-have-beenvaccinated/. (The Associated Press, 

September 22, 2021) 

Towey R. (2021, September 27). CNBC poll 

shows very little will persuade 

unvaccinated Americans to get Covid 

shots. https://www.cnbc.com/2021/09/ 

10/cnbc-poll-shows-very-little-willpersuade-unvaccinated-americans-toget-covid-shots.html. (Towey, September 

27, 2021) 

White House. (2021, October 7). White House 

Report: Vaccination Requirements Are 

Helping Vaccinate More People, Protect 

Americans from COVID–19, and 

Strengthen the Economy. https://

www.whitehouse.gov/wp-content/ 

uploads/2021/10/VaccinationRequirements-Report.pdf. (White House, 

October 7, 2021) 

III. No Other Agency Action is Adequate 

To Protect Employees Against Grave 

Danger 

OSHA’s experience to date shows that 

the agency’s existing tools are 

inadequate to meet the grave danger 

posed by COVID–19 to unvaccinated 

workers not covered by the Healthcare 

ETS. OSHA has determined that its 

existing standards, regulations, the OSH 

Act’s General Duty Clause, and nonmandatory guidance will not adequately 

promote the most effective means to 

protect these workers: Vaccination. The 

agency has determined that this ETS is 

necessary to address these inadequacies. 

Multiple developments support this 

change in approach. First, large 

numbers of employees are continuing to 

contract COVID–19 and die. (See Grave 

Danger, Section III.A. of this preamble). 

Further, based on a thorough review of 

its existing approach to protecting 

employees from COVID–19 and the 

current state of the pandemic, OSHA 

finds that existing OSHA standards, 

regulations, the General Duty Clause, 

and non-mandatory guidance are not 

adequate to protect employees outside 

healthcare from COVID–19. The 

Preamble to the Healthcare ETS 

includes a detailed analysis 

demonstrating the inadequacy of 

existing tools in the healthcare industry. 

See 86 FR 32414–32423. In general, the 

same analysis applies here. The reasons 

existing tools were inadequate to protect 

healthcare workers apply in other 

industry sectors as well. The Healthcare 

ETS itself, while necessary to protect 

healthcare workers, of course applies 

only to that industry. Finally, the 

numerous guidance products published 

by other entities, such as CDC, are not 

adequate to protect employees because 

they are not enforceable; there is no 

penalty for noncompliance. 86 FR at 

32415. Even as the CDC has increasingly 

recommended vaccination to protect 

from the dangers of transmission and 

severe illness related to the SARS–CoV– 

2 virus, vaccination rates remain uneven 

around the country. (CDC, September 9, 

2021; Leonhardt, September 7, 2021; 

KFF, October 6, 2021; McPhillips and 

Cohen, May 19, 2021). 

The need for this ETS is also reflected 

in the number of states and localities 

that have issued their own mandatory 

standards in recognition that OSHA’s 

existing measures (including nonmandatory guidance, compliance 

assistance, and enforcement of existing 

standards) have failed to prevent the 

spread of the virus in workplaces. 

Additionally, as mentioned previously, 

other states have banned certain 

employers from implementing 

workplace vaccination mandates or 

from verifying an employee’s 

vaccination status or from requiring face 

coverings. A national standard is 

necessary to establish clear 

requirements regarding vaccination, 

testing and face coverings that will 

protect employees in all states and 

preempt state or local ordinances that 

prevent employers from implementing 

necessary protections. 

a. The Current Standards and 

Regulations Are Inadequate 

In the Healthcare ETS, OSHA 

considered its enforcement efforts with 

regard to existing standards and 

regulations that OSHA had identified as 

potentially applicable to occupational 

exposure to SARS–CoV–2. OSHA’s 

analysis in Section IV of the Healthcare 

ETS, 86 FR 32376, 32416–17 and hereby 

included in the record of this ETS,18 is 

applicable here in considering the need 

for this ETS, which covers a much 

broader set of employers in all 

industries. There OSHA found that none 

of the existing OSHA standards could 

sufficiently abate the hazard posed by 

COVID–19 in healthcare settings. Here 

again OSHA concludes that the 

potentially applicable existing standards 

are insufficient to address the grave 

danger faced by workers covered by this 

ETS. None of the current standards, 

even if more rigorously enforced, can 

sufficiently address this cross-industry 

hazard of national proportions to abate 

the grave danger posed by COVID–19 or 

lead to the same benefits that this ETS 

will achieve. See Asbestos Info. Ass’n/ 

N. Am. v. Occupational Safety & Health 

Admin., 727 F.2d 415, 427 (5th Cir. 

1984) (‘‘[M]uch of the claimed benefit 

could be obtained simply by enforcing 

the current standard.’’). 

Through its enforcement guidance, 

OSHA identified a number of current 

standards and regulations that might 

apply when workers have occupational 

exposure to SARS–CoV–2, most of 

which are the same standards OSHA 

considered in the Healthcare ETS. 

(Updated Interim Enforcement Response 

Plan for Coronavirus Disease 2019 

(COVID–19)) (OSHA, July 7, 2021). 

OSHA has also cited the Hazard 

communication standard (29 CFR 

1910.1200) during COVID–19 

investigations. Accordingly, a list of 


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potentially applicable standards and 

regulations follows: 

• 29 CFR part 1904, Recording and 

Reporting Occupational Injuries and 

Illnesses. This regulation requires 

certain employers to keep records of 

work-related fatalities, injuries, and 

illnesses and report them to the 

government in specific circumstances. 

• 29 CFR 1910.132, General 

requirements—Personal Protective 

Equipment (PPE). This standard 

requires that appropriate PPE, including 

PPE for eyes, face, head, and 

extremities, protective clothing, 

respiratory devices, and protective 

shields and barriers, be provided, used, 

and maintained in a sanitary and 

reliable condition. 

• 29 CFR 1910.134, Respiratory 

protection. This standard requires that 

employers provide, and ensure the use 

of, appropriate respiratory protection 

when necessary to protect employee 

health. 

• 29 CFR 1910.141, Sanitation. This 

standard applies to permanent places of 

employment and contains, among other 

requirements, general housekeeping and 

waste disposal requirements. 

• 29 CFR 1910.145, Specification for 

accident prevention signs and tags. This 

standard requires the use of biological 

hazard signs and tags, in addition to 

other types of accident prevention signs 

and tags. 

• 29 CFR Subpart U—COVID–19 

Emergency Temporary Standard. The 

Healthcare ETS, promulgated on June 

21, 2021 includes various controls 

(patient screening and management, 

respirators and other PPE, limiting 

exposure to aerosol-generating 

procedures, physical distancing, 

physical barriers, cleaning, disinfection, 

ventilation, health screening and 

medical management, access to 

vaccination, anti-retaliation provisions, 

and medical removal protection) to 

address the grave danger posed by 

COVID–19 to healthcare workers. 

• 29 CFR 1910.1020, Access to 

employee exposure and medical 

records. This standard requires that 

employers provide employees and their 

designated representatives access to 

relevant exposure and medical records. 

• 29 CFR 1910.1200, Hazard 

communication. This standard requires 

employers to keep Safety Data Sheets 

(SDS) for chemical hazards, provide 

SDSs to employees and their 

representatives when requested, and 

train employees about those hazards. 

The standard does not apply to 

biological hazards, but hazard 

communication becomes an issue for 

the SARS–CoV–2 virus when chemicals 

are used to disinfect surfaces. 

OSHA again finds that none of these 

existing standards provide for the types 

of workplace controls that are necessary 

to combat the grave danger addressed by 

this ETS. First, none of the listed 

potentially applicable standards require 

vaccination against SARS–CoV–2, the 

most efficient and effective control to 

combat the grave danger posed by the 

virus. (The Bloodborne Pathogen 

Standard requires that the hepatitis B 

vaccine be made available to certain 

employees, but that is not that is not 

relevant here, since the hepatitis 

vaccine provides no protection against 

COVID–19). Nor are the additional 

safety measures included in this ETS— 

vaccination verification, screening 

testing, face coverings, and medical 

removal of COVID–19 positive 

workers— required by existing 

standards other than OSHA’s Healthcare 

ETS (covering employees exempted 

from this new ETS while the Healthcare 

ETS is in effect). 

Second, because existing standards do 

not contain provisions specifically 

targeted at the COVID–19 hazard, it may 

be difficult for employers and 

employees to determine what particular 

COVID–19 safety measures are required 

by existing standards, or how the 

separate standards are expected to work 

together as applied to COVID–19. An 

ETS that contains provisions 

specifically addressing COVID–19 

hazards in covered workplaces will 

provide clear instructions. More 

certainty will lead to more compliance, 

and more compliance will lead to 

improved protection of employees 

covered by this standard. 

Third, requirements in some 

standards may be appropriate for other 

situations but simply do not 

contemplate COVID–19 and fail to 

address important aspects of the hazard. 

For example, the general sanitation 

standard requires employers to provide 

warm water, soap, and towels that can 

be used in hand washing, but does not 

require disinfection or provision of 

hand sanitizer where handwashing 

facilities cannot be made readily 

available. See 86 FR 32417. Although 

the sanitation standard might appear at 

first glance to be relevant here, it simply 

does not require the types of controls 

that would, even if more rigorously 

enforced, sufficiently reduce the threat 

of COVID–19 in the workplace. As such, 

OSHA affirms its previous 

determination that some of the abovelisted standards—including the 

sanitation standard—are in practice too 

difficult to apply to the COVID–19 

hazard and have never been cited in 

COVID enforcement. 86 FR 32416. 

Fourth, existing recordkeeping and 

reporting regulations do not adequately 

allow the employer or the agency to 

assess the full scope of COVID–19 

workplace exposures and protection. 

OSHA’s general recordkeeping 

regulations were not written with the 

nature of COVID–19 transmission or 

illness in mind. In order to adequately 

understand and thereby control the 

spread of COVID–19 in the workforce, it 

is critical that the employer has records 

of employees’ vaccination status, and of 

the testing undergone by employees 

who do not receive vaccination, and 

that it knows of all cases of COVID–19 

occurring among employees. However, 

such information is outside of the scope 

of OSHA’s existing recordkeeping 

requirements, which are limited to 

injuries or illnesses that the employer 

knows to be work-related. 

Moreover, existing reporting 

regulations do not adequately ensure 

that OSHA has the full picture of the 

impact of COVID–19 because those 

regulations only require employers to 

report in-patient hospitalizations that 

occur within 24 hours of the workrelated incident and to report fatalities 

that occur within thirty days of the 

work-related incident. 86 FR at 32417. 

Many COVID–19 infections will not 

result in hospitalization or death until 

well after these limited reporting 

periods. Under existing regulations, 

such cases are not required to be 

reported to OSHA, which limits the 

agency’s ability to fully understand the 

impact of COVID–19 on the workforce. 

86 FR 32417. This ETS includes a 

provision, paragraph (k), that removes 

the time limitation on reporting for 

COVID–19 cases. 

In conclusion, OSHA’s experience has 

demonstrated that existing standards 

and regulations are inadequate to 

address the current COVID–19 hazard. 

b. The General Duty Clause Is 

Inadequate To Meet the Current Crisis 

Section 5(a)(1) of the OSH Act, or the 

General Duty Clause, provides the 

general mandate that each employer 

‘‘furnish to each of [its] employees 

employment and a place of employment 

which are free from recognized hazards 

that are causing or are likely to cause 

death or serious physical harm to [its] 

employees.’’ 29 U.S.C. 654(a)(1). For 

General Duty Clause citations to be 

upheld, OSHA must demonstrate 

elements of proof that are 

supplementary to, and can be more 

difficult to show than, the elements of 

proof required for violations of specific 

standards, where a hazard is presumed. 

Specifically, to prove a violation of the 

General Duty Clause, OSHA needs to 


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establish—in each individual case— 

that: (1) An activity or condition in the 

employer’s workplace presented a 

hazard to an employee; (2) the hazard 

was recognized; (3) the hazard was 

causing or was likely to cause death or 

serious physical harm; and (4) feasible 

means to eliminate or materially reduce 

the hazard existed. BHC Nw. Psychiatric 

Hosp., LLC v. Sec’y of Labor, 951 F.3d 

558, 563 (D.C. Cir. 2020). OSHA often 

relies on the General Duty Clause to fill 

gaps where specific standards do not 

address a hazard and OSHA enforces it 

through case-by-case adjudicative 

proceedings. See United States v. 

Strum, 84 F.3d 1, 5 (1st Cir. 1996). 

OSHA has previously found the 

General Duty Clause to be inadequate to 

protect employees from dangers posed 

by infectious agents. In promulgating 

the bloodborne pathogens standard, 

OSHA explained that enforcement 

under the General Duty Clause was 

insufficient to protect employees from 

the serious hazards those pathogens 

present. 56 FR 64007 (December 6, 

1991). In the recently promulgated 

Healthcare ETS, OSHA found that the 

General Duty Clause was insufficient to 

protect healthcare workers from the 

grave danger they faced as well. 86 FR 

32418. While OSHA initially attempted 

to use the General Duty Clause to 

protect employees across all industries 

from COVID–19-related hazards, 

OSHA’s experience has demonstrated 

that the Clause is grossly inadequate to 

protect employees covered by this ETS 

from the grave danger posed by COVID– 

19 in the workplace. As explained more 

fully below, OSHA finds this ETS is 

necessary to protect employees from the 

hazards of COVID–19. 

As an initial matter, the General Duty 

Clause does not provide employers with 

specific requirements to follow or a 

roadmap for implementing appropriate 

abatement measures. The ETS, however, 

provides a clear statement of what 

OSHA expects employers to do to 

protect workers, thus facilitating better 

compliance. The General Duty Clause is 

so named because it imposes a general 

duty to keep the workplace free of 

recognized serious hazards; the ETS, in 

contrast, lays out clear requirements for 

employers to implement vaccination 

policies including vaccination 

verification, support for employee 

vaccination, screening testing and face 

coverings for unvaccinated workers, and 

medical removal of COVID–19 positive 

employees. Conveying obligations as 

clearly and specifically as possible 

makes it much more likely that 

employers will comply with those 

obligations and thereby protect workers 

from COVID–19 hazards. See, e.g., 

Integra Health Mgmt., Inc., 2019 WL 

1142920, at *7 n.10 (No. 13–1124, 2019) 

(noting that standards ‘‘give clear notice 

of what is required of the regulated 

community’’); 56 FR 64007 (‘‘because 

the standard is much more specific than 

the current requirements [general 

standards and the general duty clause], 

employers and employees are given 

more guidance in carrying out the goal 

of reducing the risks of occupational 

exposure to bloodborne pathogens’’). 

Moreover, several characteristics of 

General Duty Clause enforcement 

actions make them an inadequate means 

to address hazards associated with 

COVID–19. First, it would be virtually 

impossible for OSHA to require and 

enforce the most important workerprotective elements of the ETS (such as 

vaccination and testing) under the 

General Duty Clause. Second, OSHA’s 

burden of proof for establishing a 

General Duty Clause violation is heavier 

than for standards violations. Third, 

promulgating an ETS will enable OSHA 

to issue more meaningful penalties for 

willful and egregious violations, thus 

creating effective deterrence against 

employers who intentionally disregard 

their obligations under the Act or 

demonstrate plain indifference to 

employee safety. As discussed in more 

detail below, all of these considerations 

demonstrate OSHA’s need to 

promulgate this ETS in order to protect 

unvaccinated workers covered by this 

standard from hazards posed by 

COVID–19. 

The General Duty Clause is ill-suited to 

requiring employers to adopt 

vaccination and testing policies, 

like those required by the ETS 

Because the General Duty Clause 

requires OSHA to establish the 

existence and feasibility of abatement 

measures that can materially reduce a 

hazard, it is difficult for OSHA to use 

the clause to require specific control 

measures where an employer is doing 

something, but not what the Secretary 

has determined is needed to fully 

address the serious hazard. See, e.g., 

Waldon Health Care Center, 16 BNA 

OSHC 1052, 1993 WL 119662 at * (No. 

89–2804, 1993) (vacating OSHA citation 

requiring pre-exposure hepatitis B 

vaccination under General Duty Clause 

by finding that although vaccination 

would more fully reduce the hazard, the 

employer’s chosen means of abatement 

were sufficient); Brown & Root, Inc., 

Power Plant Div., 8 BNA OSHC 2140, 

1980 WL 10668 at *5 (No. 76–1296, 

1980) (‘‘[T]he employer may defend 

against a section 5(a)(1) citation by 

asserting that it was using a method of 

abatement other than the one suggested 

by the Secretary.’’). 

Further, even where OSHA 

establishes a violation of the General 

Duty Clause, the employer is under no 

obligation to implement the feasible 

means of abatement proven by OSHA as 

part of its prima facie case. Cyrus Mines 

Corp., 11 OSH Cas. (BNA) 1063, 1982 

WL 22717, at *4 (No. 76–616, 1983) 

(‘‘[The employer] is not required to 

adopt the abatement method suggested 

by the Secretary, even one found 

feasible by the Commission; it may 

satisfy its duty to comply with the 

standard by using any feasible method 

that is appropriate to abate the 

violation.’’); Brown & Root, Inc., Power 

Plant Div., 1980 WL 10668 at *5. Thus, 

even in cases where OSHA prevails, the 

employer need not necessarily 

implement the specific abatement 

measure(s) OSHA established would 

materially reduce the hazard. The 

employer could select alternative 

controls and then it would be up to 

OSHA, if it wished to cite the employer 

again, to establish that the recognized 

hazard continued to exist and that its 

preferred controls could materially 

reduce the hazard even further. 

Given the severity and pervasiveness 

of the COVID–19 hazard, OSHA has 

determined that the specific abatement 

measures provided in this ETS are 

necessary to protect workers from grave 

danger. Under the General Duty Clause 

alone, it would be nearly impossible to 

require employers to provide these 

specific measures, and even then, it 

could only be on a case-by-case 

enforcement basis. Considering the 

magnitude and ubiquity of the danger 

that SARS–CoV–2 poses to workers 

across the country, the case-by-case 

adjudicatory regime set up through the 

General Duty Clause is simply not 

adequate to combat the risk of severe 

illness and death caused by the virus. 

General Duty Clause Citations Impose a 

Heavy Litigation Burden on OSHA 

Under the General Duty Clause OSHA 

must prove that there is a recognized 

hazard, i.e., a workplace condition or 

practice to which employees are 

exposed, creating the potential for death 

or serious physical harm to employees. 

See SeaWorld of Florida LLC v. Perez, 

748 F.3d 1202, 1207 (D.C. Cir. 2014); 

Integra Health Management, 2019 WL 

1142920, at *5. Whether a particular 

workplace condition or practice is a 

‘‘recognized hazard’’ under the General 

Duty Clause is a question of fact that 

must be decided in each individual 

case. See SeaWorld of Florida LLC, 748 

F.3d at 1208. In the case of a COVID– 

19-related citation, this means showing 


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19 ‘‘The Act does not wait for an employee to die 

or become injured. It authorizes the promulgation 

of health and safety standards and the issuance of 

citations in the hope that these will act to prevent 

deaths and injuries from ever occurring.’’ Whirlpool 

Corp, v. Marshall, 445 U.S. 1, 12 (1980); see also 

Arkansas-Best Freight Sys., Inc. v. Occupational 

Safety & Health Rev. Comm’n, 529 F.2d 649, 653 

(8th Cir. 1976) (noting that the ‘‘[OSH] Act is 

intended to prevent the first injury’’). 

not just that the virus is a hazard as a 

general matter—a fairly indisputable 

point—but also that the specific 

conditions in the cited workplace, such 

as unvaccinated, unmasked employees 

working in close proximity to other 

employees for extended periods, create 

a COVID–19-related hazard. 

In contrast, an OSHA standard that 

requires or prohibits specific conditions 

or practices establishes the existence of 

a hazard. See Harry C. Crooker & Sons, 

Inc. v. Occupational Safety & Health 

Rev. Comm’n, 537 F.3d 79, 85 (1st Cir. 

2008); Bunge Corp. v. Sec’y of Labor, 

638 F.2d 831, 834 (5th Cir. 1981). Thus, 

in enforcement proceedings under 

OSHA standards, as opposed to the 

General Duty Clause, ‘‘the Secretary 

need not prove that the violative 

conditions are actually hazardous.’’ 

Modern Drop Forge Co. v. Sec’y of 

Labor, 683 F.2d 1105, 1114 (7th Cir. 

1982). With OSHA’s finding that the 

hazard of exposure to COVID–19 can 

exist for unvaccinated workers in all 

covered workplaces (see Grave Danger, 

Section III.A. of this preamble), the ETS 

will eliminate the burden to repeatedly 

prove, workplace by workplace, the 

existence of a COVID–19 hazard under 

the General Duty Clause. 

One of the most significant 

advantages to standards like the ETS 

that establish the existence of the hazard 

at the rulemaking stage is that the 

Secretary can require specific abatement 

measures without having to prove that 

a specific cited workplace is already 

hazardous.19 In contrast, as discussed 

above, under the General Duty Clause 

the Secretary cannot require abatement 

before proving in the enforcement 

proceeding that an existing condition at 

the workplace is hazardous. For 

example, in a challenge to OSHA’s 

Grain Handling Standard, which was 

promulgated in part to protect 

employees from the risk of fire and 

explosion from accumulations of grain 

dust, the Fifth Circuit acknowledged 

OSHA’s inability to effectively protect 

employees from these hazards under the 

General Duty Clause in upholding, in 

large part, the standard. See Nat’l Grain 

& Feed Ass’n v. Occupational Safety & 

Health Admin., 866 F.2d 717, 721 (5th 

Cir. 1988) (noting Secretary’s difficulty 

in proving explosion hazards of grain 

handling under General Duty Clause). 

Although OSHA had attempted to 

address fire and explosion hazards in 

the grain handling industry under the 

General Duty Clause, ‘‘employers 

generally were successful in arguing 

that OSHA had not proved that the 

specific condition cited could cause a 

fire or explosion.’’ Id. at 721 & n.6 

(citing cases holding that OSHA failed 

to establish a fire or explosion hazard 

under the General Duty Clause). The 

Grain Handling Standard, in contrast, 

established specific limits on 

accumulations of grain dust based on its 

combustible and explosive nature, and 

the standard allowed OSHA to cite 

employers for exceeding those limits 

without the need to prove at the 

enforcement stage that each cited 

accumulation was likely to cause a fire 

or explosion. See id. at 725–26. 

The same logic applies to COVID–19 

hazards. Given OSHA’s burden under 

the General Duty Clause to prove that 

conditions at the cited workplace are 

hazardous, it is difficult for OSHA to 

ensure necessary abatement before 

individual employee lives and health 

are unnecessarily endangered by 

exposure to COVID–19, despite 

widespread evidence of the grave 

danger posed by worker exposure to 

COVID–19. Indeed, despite publishing a 

voluminous collection of COVID–19 

guidance online and receiving and 

investigating thousands of complaints, 

OSHA did not believe it could justify 

the issuance of more than 20 COVID–19 

related General Duty Clause citations 

over the entire span of the pandemic so 

far, because of the quantum of proof the 

Secretary must amass under the General 

Duty Clause. Unlike enforcement under 

the General Duty Clause, this ETS 

allows OSHA to cite employers for each 

protective requirement they fail to 

implement without the need to wait for 

employee infection or death to prove in 

an enforcement proceeding that the 

particular cited workplace was 

hazardous without that particular 

measure in place. Thus, this ETS, which 

covers millions of workers nation-wide, 

is significantly preferable to the General 

Duty Clause with respect to such a 

highly transmissible virus because the 

inability to prevent a single exposure 

can quickly result in an exponential 

increase in exposures and illnesses or 

fatalities even at a single worksite. 

An additional limitation of the 

General Duty Clause is that proving that 

there are feasible means to materially 

reduce a recognized hazard typically 

requires testimony from an expert 

witness in each separate case, which 

limits OSHA’s ability to prosecute these 

cases as broadly as needed to protect 

workers, in light of the expense 

involved. See, e.g., Integra Health 

Management, 2019 WL 1142920, at *13 

(requiring expert witness to prove 

proposed abatement measures would 

materially reduce hazard). In contrast, 

where an OSHA standard specifies the 

means of compliance, the agency has 

already made the necessary technical 

determinations in the rulemaking and 

therefore does not need to establish 

feasibility of compliance as part of its 

prima facie case in an enforcement 

proceeding. See, e.g., A.J. McNulty & Co. 

v. Sec’y of Labor, 283 F.3d 328, 334 

(D.C. Cir. 2002); S. Colorado Prestress 

Co. v. Occupational Safety & Health 

Rev. Comm’n, 586 F.2d 1342, 1351 (10th 

Cir. 1978). Preventing the initial 

exposure and protecting as many 

workers as quickly as possible is 

especially critical in the context of 

COVID–19 because, as explained in 

Grave Danger, Section III.A. of this 

preamble, it can spread so easily in 

workplaces. 

The ETS will also permit OSHA to 

achieve meaningful deterrence 

when necessary to address willful 

or egregious failures to protect 

employees against the COVID–19 

hazard 

As described above, in contrast to the 

broad language of the General Duty 

Clause, this ETS will prescribe specific 

measures employers covered by this 

standard must implement. This 

specificity will make it easier for OSHA 

to determine whether an employer has 

intentionally disregarded its obligations 

or exhibited a plain indifference to 

employee safety or health. In such 

instances, OSHA can classify the 

citations as ‘‘willful,’’ allowing it to 

propose higher penalties, with increased 

deterrent effects. In promulgating the 

Healthcare ETS, OSHA noted that early 

in the pandemic, shifting guidance on 

the safety measures employers should 

take to protect their employees from 

COVID–19 created ambiguity regarding 

employers’ specific obligations. Thus, 

OSHA could not readily determine 

whether a particular employer had 

‘‘intentionally’’ disregarded obligations 

that were not yet clear. And, even as the 

guidance began to stabilize, OSHA’s 

ability to determine ‘‘intentional 

disregard’’ or ‘‘plain indifference’’ was 

difficult, for example, when an 

employer took some steps address the 

COVID–19 hazard. 86 FR 32420. The 

Healthcare ETS largely resolved this 

issue for employers covered by that 

standard, by laying out clearly what 

parameters to put in place to protect 

healthcare workers. However, this 

general challenge persists in OSHA’s 


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attempts at enforcement in other 

industries. 

Further, OSHA has adopted its 

‘‘egregious violation’’ policy to impose 

sufficiently large penalties that achieve 

appropriate deterrence against bad actor 

employers who willfully disregard their 

obligation to protect their employees 

when certain aggravating circumstances 

are present, such as a large number of 

injuries or illnesses, bad faith, or an 

extensive history of noncompliance 

(OSHA Directive CPL 02–00–080 

(October 21, 1990)). Its purpose is to 

increase the deterrent impact of OSHA’s 

enforcement activity. This policy 

utilizes OSHA’s authority to issue a 

separate penalty for each instance of 

noncompliance with an OSHA standard, 

such as each employee lacking the same 

required protections, or each 

workstation lacking the same required 

controls. It can be more difficult to use 

this policy under the General Duty 

Clause because the Fifth Circuit and the 

Occupational Safety and Health Review 

Commission have held that, under the 

General Duty Clause, OSHA may only 

cite a hazardous condition once, 

regardless of its scope or the number of 

workers affected. Reich v. Arcadian 

Corp., 110 F.3d 1192, 1199 (5th Cir. 

1997). Thus, even where OSHA finds 

that an employer willfully failed to 

protect a large number of employees 

from a COVID–19 hazard, OSHA might 

not be able to cite the employer on a 

per-instance basis for failing to protect 

each of its employees. The provisions of 

this ETS have been intentionally drafted 

to make clear OSHA’s authority to 

separately cite employers for each 

instance of the employer’s failure to 

protect employees and for each affected 

employee, where appropriate. 

By providing needed clarity, the ETS 

will facilitate ‘‘willful’’ and ‘‘egregious’’ 

determinations that are critical 

enforcement tools OSHA can use to 

adequately address violations by 

employers who have shown a conscious 

disregard for the health and safety of 

their workers in response to the 

pandemic. Without the necessary 

clarity, OSHA has been limited in its 

ability to impose penalties high enough 

to motivate the very large employers 

who are unlikely to be deterred by 

penalty assessments of tens of 

thousands of dollars, but whose 

noncompliance can endanger thousands 

of workers. Indeed, OSHA has only been 

able to issue two COVID–19-related 

‘‘willful’’ citations and no ‘‘egregious’’ 

citations since the start of the pandemic 

because of the challenges described 

above. 

For all of the reasons described above, 

and after over a year of attempting to 

use the General Duty Clause to address 

this widespread hazard, OSHA finds 

that the General Duty Clause is not an 

adequate enforcement tool to protect 

employees covered by this standard 

from the grave danger posed by COVID– 

19. 

c. OSHA and Other Entity Guidance Is 

Insufficient 

OSHA has issued numerous nonmandatory guidance products to advise 

employers on how to protect workers 

from SARS–CoV–2 infection (see 

https://www.osha.gov/coronavirus). 

Even the most comprehensive guidance 

makes clear, as it must, that the 

guidance itself imposes no new legal 

obligations, and that its 

recommendations are ‘‘advisory in 

nature.’’ (See OSHA’s online guidance, 

Protecting Workers: Guidance on 

Mitigating and Preventing the Spread of 

COVID–19 in the Workplace (OSHA, 

Updated August 13, 2021); and OSHA’s 

earlier 35-page booklet, Guidance on 

Preparing Workplaces for COVID–19, 

(OSHA, March 9, 2020)). This guidance, 

as well as guidance products issued by 

other government agencies and 

organizations, including the CDC, the 

Centers for Medicare & Medicaid 

Services (CMS), the Institute of 

Medicine (IOM), and the World Health 

Organization (WHO), help protect 

employees to the extent that employers 

voluntarily choose to implement the 

practices they recommend. 

Unfortunately, OSHA’s experience and 

the continued spread of COVID–19 

throughout the country shows that does 

not happen consistently or rigorously 

enough, resulting in inadequate 

protection for employees. For example, 

the CDC has strongly recommended 

vaccination since vaccines became 

widely available earlier in the year, but 

many employees have yet to take this 

simple step, which would protect 

themselves and their co-workers from 

the danger of COVID–19. 

As documented in numerous peerreviewed scientific publications, CDC, 

IOM, and WHO have recognized a lack 

of compliance with non-mandatory 

recommended infection-control 

practices (Siegel et al., 2007; IOM, 2009; 

WHO, 2009). As noted in the preamble 

to the Healthcare ETS, OSHA was aware 

of these findings when it previously 

concluded that an ETS was not 

necessary, but at the time of that 

conclusion, the agency erroneously 

believed that it would be able to 

effectively use the non-mandatory 

guidance as a basis for establishing the 

mandatory requirements of the General 

Duty Clause, and informing employers 

of their compliance obligations under 

existing standards. 86 FR 32421. As 

explained above, that has not proven to 

be an effective strategy. Moreover, when 

OSHA made its initial necessity 

determination at the beginning of the 

pandemic, it made an assumption that 

given the unprecedented nature of the 

COVID–19 pandemic, there would be an 

unusual level of widespread voluntary 

compliance by the regulated community 

with COVID–19-related safety 

guidelines. (See, e.g., DOL, May 29, 

2020 at 20 (observing that ‘‘[n]ever in 

the last century have the American 

people been as mindful, wary, and 

cautious about a health risk as they are 

now with respect to COVID–19,’’ and 

that many ‘‘protective measures are 

being implemented voluntarily, as 

reflected in a plethora of industry 

guidelines, company-specific plans, and 

other sources’’)). 

Since that time, however, 

developments have led OSHA to 

conclude that the same uneven 

compliance documented by CDC, IOM, 

and WHO is also occurring for the 

COVID–19 guidance issued by OSHA 

and other agencies. For example, rising 

‘‘COVID fatigue’’ or ‘‘pandemic fatigue’’ 

has been reported for nearly a year 

already—i.e., a decrease in voluntary 

use of COVID–19 mitigation measures 

over time (Meichtry et al., October 26, 

2020; Silva and Martin, November 14, 

2020; Belanger and Leander, December 

9, 2020; Millard, February 18, 2021). 

Other reasons that people have not 

followed COVID–19 guidance include 

fear of financial loss; skepticism about 

the danger posed by COVID–19; and 

even a simple human tendency, called 

‘‘psychological reactance,’’ to resist 

curbs on personal freedoms, i.e., an urge 

to do the opposite of what somebody 

tells you to do (Belanger and Leander, 

December 9, 2020; Markman, April 20, 

2020). OSHA is seeing evidence of these 

trends in its COVID–19 enforcement. 

For example, although OSHA has issued 

guidance since the spring of 2020 

encouraging the use of physical 

distancing and barriers as a means of 

protecting employees at fixed work 

locations, there have been a number of 

news reports indicating that employers 

ignore that guidance (Romo, November 

19, 2020; Richards, May 5, 2020; Lynch, 

July 9, 2020). This was evidenced by a 

cross-sectional study performed from 

late summer to early fall of 2020 in New 

York and New Jersey that found noncompliance and widespread 

inconsistencies in COVID–19 response 

programs (Koshy et al., February 4, 

2021). Indeed, OSHA continues to 

receive complaints and referrals 

attesting to such workplace practices. 


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(OSHA, October 17, 2021). Worse, some 

employers must now deal with 

employees who not only have yet to be 

vaccinated but compound the danger by 

hiding their unvaccinated status and 

declining to wear source protection that 

would identify them as unvaccinated, 

even though it could provide some 

protection to their coworkers, in 

workplaces where there is a stigma 

attached to being unvaccinated. (Ember 

and Murphy Marcos, August 7, 2021). 

This ETS contains notification and 

vaccine verification requirements that 

address these avoidant behaviors and 

mitigate the hazard of undisclosed 

exposure and transmission (see the 

Summary and Explanation for 

paragraphs (e), (g), and (h), Sections 

VI.E., VI.G., and VI.H. of this preamble). 

OSHA’s more recent guidance update 

encourages employers to facilitate 

employee vaccination by providing paid 

time off and encourages testing and 

masks for unvaccinated workers. 

However, as discussed previously, 

vaccination rates remain inconsistent 

across the country and have slowed 

significantly since the spring of 2021. 

And infection rates remain high, 

especially among the unvaccinated. It is 

clear, as discussed previously, that 

voluntary self-regulation by employers 

will not sufficiently reduce the danger 

that COVID–19 poses in workplaces 

covered by this standard. As noted in 

the White House Report on vaccination 

requirements released on October 7, at 

this time only 25% of businesses have 

vaccine mandates in place (White 

House, October 7, 2021). Since this ETS 

and other federal efforts to require 

vaccination were announced more 

private and public sector institutions 

have begun to prepare to implement 

vaccination requirements, further 

demonstrating the need for this rule as 

an impetus for employer action (White 

House, October 7, 2021). 

The high number of COVID–19- 

related complaints and reports that 

OSHA continues to receive on a regular 

basis suggests a lack of widespread 

compliance with existing voluntary 

guidance: From March 2020 to October 

2021, OSHA has continued to receive 

hundreds of COVID–19-related 

complaints every month, including over 

400 complaints during the month of 

August 2021, and over 450 complaints 

to date in the month of September 

(OSHA, October 11, 2021). And, as of 

October 17, OSHA has received 223 

additional COVID–19-related 

complaints. (OSHA, October 17, 2021). 

If guidance were followed more strictly, 

or if there were enough voluntary 

compliance with steps to prevent 

illness, OSHA would expect to see a 

significant reduction in COVID–19- 

related complaints from employees. 

The dramatic increases in the 

percentage of the population that 

contracted the virus during the summer 

of 2021 indicates a continued risk of 

COVID–19 transmission in workplace 

settings (for more information on the 

prevalence of COVID–19 see Grave 

Danger, Section III.A. of this preamble) 

despite OSHA’s publication of 

numerous specific and comprehensive 

guidance documents. OSHA has found 

that neither reliance on voluntary action 

by employers nor OSHA non-mandatory 

guidance is an adequate substitute for 

specific, mandatory workplace 

standards at the federal level. Public 

Citizen v. Auchter, 702 F.2d 1150 at 

1153 (voluntary action by employers 

‘‘alerted and responsive’’ to new health 

data is not an adequate substitute for 

government action). 

d. A Uniform Nationwide Response to 

the Pandemic Is Necessary To Protect 

Workers 

As the pandemic has continued in the 

United States, there has been increasing 

recognition of the need for a more 

consistent national approach (GAO, 

September, 2020; Budryk, November 17, 

2020; Horsley, May 1, 2020; DOL OIG, 

February 25, 2021). Many employers 

have advised OSHA that they would 

welcome a nationwide ETS. For 

example, in its October 9, 2020 petition 

for a COVID–19 ETS, ORCHSE 

Strategies, LLC explained that it is 

‘‘imperative’’ that OSHA issue an ETS to 

provide employers one standardized set 

of requirements to address safety and 

health for their workers (ORCHSE, 

October 9, 2020). This group of 

prominent business representatives 

explained that an ETS would eliminate 

confusion and unnecessary burden on 

workplaces that are struggling to 

understand how best to protect their 

employees in the face of confusing and 

differing requirements across states and 

localities. 

The lack of a national standard on this 

hazard has led to increasing imbalance 

in state and local regulation, a problem 

that OSHA already identified as 

concerning in its Healthcare ETS. See 86 

FR 32413 (‘‘The resulting patchwork of 

state and local regulations led to 

inadequate and varying levels of 

protection for workers across the 

country, and has caused problems for 

many employees and businesses.’’) 

Since the Healthcare ETS was 

published, states and localities have 

taken increasingly more divergent 

approaches to COVID–19 vaccination, 

vaccination verification, screening 

testing, and the use of face coverings in 

the workplace. Currently, the spectrum 

ranges from states and localities 

requiring vaccine mandates and face 

coverings to states prohibiting or 

restricting them, with many states 

falling somewhere in between. Due to 

uneven approaches to vaccination 

across the country, states with the 

lowest rates of vaccination have 

COVID–19 infection rates four times as 

high as in states with the highest 

vaccine rates. (Leonhardt, September 7, 

2021). Given that thousands of working 

age people continue to be infected with 

COVID–19 each week, many of whom 

will become hospitalized or die, OSHA 

recognizes that a patchwork approach to 

worker safety has not been successful in 

mitigating this infectious disease 

outbreak (CDC, October 18, 2021— 

Cases, By Age). It has become clear that 

a Federal standard, by way of this ETS, 

is necessary to provide clear and 

consistent protection to employees 

across the country. As explained in 

Pertinent Legal Authority (Section II. of 

this preamble) and the Summary and 

Explanation for paragraph (a) (Section 

VI.A. of this preamble), OSHA has the 

authority to comprehensively address 

the issue(s) described in this ETS, and 

the standard is intended to preempt 

conflicting state and local laws. 

In sum, based on its enforcement 

experience during the pandemic to date, 

OSHA concludes that continued 

reliance on existing standards and 

regulations, the General Duty Clause, 

and guidance, in lieu of an ETS, is not 

adequate to protect unvaccinated 

employees from the grave danger of 

being infected by, and suffering death or 

serious health consequences from, 

COVID–19. 

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9). What Motivates COVID Rule 

Breakers? Scientific American. https://

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Budryk Z. (2020, November 17). Fauci calls 

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pandemic. The Hill. https://thehill.com/ 

policy/healthcare/526378-fauci-calls-fora-uniform-approach-to-the-coronaviruspandemic?rl=1. (Budryk, November 17, 

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Kaiser Family Foundation (KFF). (2021, 

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programs. Safety Science 138. https://

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(Koshy et al., February 4, 2021) 

Leonhardt D. (2021, September 7). One in 

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risk-breakthrough-infections-delta.html. 

(Leonhardt, September 7, 2021) 

Lynch R. (2020, July 9). Orange County to 

crack down on gyms that ignore Covid19 safety guidelines. Orlando Business 

Journal. https://www.bizjournals.com/ 

orlando/news/2020/07/09/orangecounty-gyms-could-face-scrutiny-fornot.html. (Lynch, July 9, 2020) 

Markman A. (2020, April 20). Why are there 

still so many coronavirus skeptics? Fast 

Company. https://

www.fastcompany.com/90492518/whyare-there-still-so-many-coronavirusskeptics. (Markman, April 20, 2020) 

McPhillips D and Cohen E. (2021, May 19). 

Uneven vaccination rates across the US 

linked to COVID–19 case trends, worry 

experts. CNN Health. https://

www.cnn.com/2021/05/19/health/ 

uneven-vaccination-rates-covid-19- 

trends/index.html. (McPhillips and 

Cohen, May 19, 2021) 

Meichtry S et al. (2020, October 26). 

Pandemic Fatigue is Real—And It’s 

Spreading; Collective exhaustion with 

coronavirus restrictions has emerged as a 

formidable adversary for governments. 

The Wall Street Journal. https://

www.wsj.com/articles/pandemic-fatigueis-realand-its-spreading-11603704601. 

(Meichtry et al., October 26, 2020) 

Millard E. (2021, February 18). How to not 

let pandemic fatigue turn into pandemic 

burnout. Everyday Health. https://

www.everydayhealth.com/coronavirus/ 

how-to-not-let-pandemic-fatigue-turninto-pandemic-burnout/. (Millard, 

February 18, 2021) 

Occupational Safety and Health 

Administration (OSHA). (2020, March 9). 

Guidance on Preparing Workplaces for 

Covid-19. https://www.osha.gov/sites/ 

default/files/publications/ 

OSHA3990.pdf. (OSHA, March 9, 2020 

Occupational Safety and Health 

Administration (OSHA). (2021, July 7). 

Updated Interim Enforcement Response 

Plan for Coronavirus Disease 2019 

(COVID–19). https://www.osha.gov/lawsregs/standardinterpretations/2021–07– 

07. (OSHA, July 7, 2021) 

Occupational Safety and Health 

Administration (OSHA). (2021, August 

13). Guidance on Preparing Workplaces 

for Covid-19. https://www.osha.gov/ 

sites/default/files/publications/ 

OSHA3990.pdf. (OSHA, August 13, 

2021) 

Occupational Safety and Health 

Administration (OSHA). (2021, August 

13). Protecting Workers: Guidance on 

Mitigating and Preventing the Spread of 

COVID–19 in the Workplace. https://

www.osha.gov/coronavirus/safework. 

(OSHA, Updated August 13, 2021) 

Occupational Safety and Health 

Administration (OSHA). (2021, October 

17). Summary Data for Federal and State 

Programs—Enforcement. https://

www.osha.gov/enforcement/covid-19- 

data#complaints_referrals. (OSHA, 

October 17, 2021) 

ORCHSE Strategies. (2020, October 9). 

‘‘Petition to the U.S. Department of 

Labor—Occupational Safety and Health 

Administration (OSHA) for an 

Emergency Temporary Standard (ETS) 

for Infectious Disease.’’ (ORCHSE, 

October 9, 2020) 

Richards C. (2020, May 5). 2 Utah County 

businesses told staff to ignore COVID–19 

guidelines, resulting in 68 positive cases. 

Daily Herald. https://

www.heraldextra.com/news/local/2- 

utah-county-businesses-told-staff-toignore-covid-19-guidelines-resulting-in68-positive/article_d8426991-a693-5879- 

9d88-f9e094aef5b5.html. (Richards, May 

5, 2020) 

Romo V. (2020, November 19). Tyson 

managers suspended after allegedly 

betting if workers would contract 

COVID. National Public Radio. https://

www.npr.org/2020/11/19/936905707/ 

tyson-managers-suspended-afterallegedly-betting-if-workers-wouldcontract-covid. (Romo, November 19, 

2020) 

Siegel J, Rhinehart E, Jackson M, Chiarello L, 

and the Healthcare Infection Control 

Practices Advisory Committee. (2007). 

2007 Guideline for isolation precautions: 

Preventing transmission of infectious 

agents in healthcare settings. https://

www.cdc.gov/infectioncontrol/pdf/ 

guidelines/isolation-guidelines-H.pdf. 

(Siegel et al., 2007) 

Silva C and Martin M. (2020, November 14). 

U.S. Surgeon General Blames ‘‘Pandemic 

Fatigue’’ for Recent COVID–19 Surge. 

NPR. https://www.npr.org/sections/ 

coronavirus-live-updates/2020/11/14/ 

934986232/u-s-surgeon-general-blamespandemic-fatigue-for-recent-covid-19- 

surge. (Silva and Martin, November 14, 

2020) 

United States Department of Labor (DOL) and 

Office of the Inspector General (OIG). 

(2021, February 25). COVID–19: 

Increased Worksite Complaints and 

Reduced OSHA Inspections Leave U.S. 

Workers’ Safety at Increased Risk. http:// 

www.oig.dol.gov/public/reports/oa/2021/ 

19-21-003-10-105.pdf. (DOL OIG, 

February 25, 2021) 

United States Department of Labor (DOL). 

(2020, May 29). In Re: American 

Federation Of Labor And Congress Of 

Industrial Organizations. Department Of 

Labor’s Response to the Emergency 

Petition for a Writ of Mandamus, No. 20– 

1158 (D.C. Cir., May 29, 2020). (DOL, 

May 29, 2020) 

White House. (2021, October 7). White House 

Report: Vaccination requirements are 

helping vaccinate more people, protect 

Americans from COVID–19, and 

strengthen the economy. https://

www.whitehouse.gov/wp-content/ 

uploads/2021/10/VaccinationRequirements-Report.pdf. (White House, 

October 7, 2021) 

World Health Organization (WHO). (2009). 

WHO Guidelines on Hand Hygiene in 

Health Care: A Summary—First Global 

Patient Safety Challenge Clean Care is 

Safer Care. https://

www.ncbi.nlm.nih.gov/books/ 

NBK144013/pdf/Bookshelf_

NBK144013.pdf. (WHO, 2009) 

IV. Conclusion 

This pandemic continues to take a 

massive toll on American society, and 

addressing it requires a comprehensive 

national response. This ETS is part of 

that response. OSHA shares the nation’s 

hope for the promise of recovery created 

by the vaccines. But in the meantime, it 

recognizes that we have not yet 

succeeded in defeating the virus, and 

that many workers across the country 

are in grave danger. Therefore, this ETS, 

with mitigation measures emphasizing 

worker vaccination, is necessary. 

Although OSHA finds it necessary to 

institute specific mitigation measures 

for the immediate future, the agency can 

adjust as conditions change. Even after 

issuing an ETS, OSHA retains the 

flexibility to update the ETS to adjust to 

the subsequent evolution of CDC 

workplace guidance. This ETS 

addresses (and incorporates as a main 

component) the major development in 

infection control over the last year—the 

development and growing 

implementation of COVID–19 vaccines. 

Going forward, further developments 

can be addressed through OSHA’s 


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20While OSHA references several employers’ 

policies, this is not intended to serve as an 

endorsement of those plans or an indication that 

those plans comply with the ETS. Rather, the plans 

and best practice documents show that developing 

and implementing policies to address employee 

COVID–19 vaccination in various workplaces is 

capable of being done in a variety of industries, and 

therefore, compliance with the ETS is 

technologically feasible. 

authority to modify the ETS if needed, 

or to terminate it entirely if vaccination 

and other efforts end the current 

emergency. However, at this point in 

time, the available evidence indicates 

that the ETS is necessary to protect 

unvaccinated employees across the 

country from the grave danger of 

COVID–19. 

IV. Feasibility 

A. Technological Feasibility 

This section presents an overview of 

the technological feasibility assessment 

for OSHA’s Emergency Temporary 

Standard (ETS) for COVID–19 that 

requires all employers with 100 or more 

employees to ensure that all employees 

are fully vaccinated unless they 

implement a policy requiring employees 

to undergo testing for COVID–19 at least 

once every seven days and wear face 

coverings. 

Technological feasibility has been 

interpreted broadly to mean ‘‘capable of 

being done’’ (Am. Textile Mfrs. Inst. v. 

Donovan, 452 U.S. 490, 509–510 

(1981)). A standard is technologically 

feasible if the protective measures it 

requires already exist, can be brought 

into existence with available 

technology, or can be created with 

technology that can reasonably be 

expected to be developed, i.e., 

technology that ‘‘looms on today’s 

horizon’’ (United Steelworkers of Am., 

AFL–CIO–CLC v. Marshall, 647 F.2d 

1189, 1272 (D.C. Cir. 1980) (Lead I)); 

Amer. Iron & Steel Inst. v. OSHA, 939 

F.2d 975, 980 (D.C. Cir. 1991) (Lead II); 

American Iron and Steel Inst. v. OSHA, 

577 F.2d 825 (3d Cir. 1978)). Courts 

have also interpreted technological 

feasibility to mean that a typical firm in 

each affected industry or application 

group will reasonably be able to 

implement the requirements of the 

standard in most operations most of the 

time (see Public Citizen v. OSHA, 557 

F.3d 165 (3d Cir. 2009); Lead I, 647 F.2d 

at 1272; Lead II, 939 F.2d at 990). 

OSHA issued an ETS in June 2021 to 

protect healthcare and healthcare 

support employees in covered 

healthcare settings from exposure to 

SARS–CoV–2. See 86 FR 32376 (June 

21, 2021) (Healthcare ETS). OSHA 

found the requirements in that ETS to 

be technologically feasible, including a 

requirement for employers to pay for 

vaccination of employees that is very 

similar to the requirement in this new 

ETS. OSHA’s finding that the 

Healthcare ETS was technologically 

feasible was primarily based on 

available evidence showing that most 

healthcare employers, and employers 

across all industry sectors, had already 

implemented, or were in process of 

implementing, procedures similar to 

those required by the Healthcare ETS. 

Similarly, OSHA’s feasibility findings 

for this ETS are based on evidence that 

vaccination and testing policies, along 

with the use of face coverings consistent 

with recommendations from the CDC, 

have been implemented in multiple 

industry sectors as testing and 

vaccinations were made more widely 

available during the course of the 

pandemic. 

As discussed in Summary and 

Explanation (Section VI. of this 

preamble), this ETS for vaccination and 

testing applies to all employers with 100 

or more employees, except as noted 

here. It does not apply to workplaces 

covered under the Safer Federal 

Workforce Task Force COVID–19 

Workplace Safety: Guidance for Federal 

Contractors and Subcontractors or 

settings where any employee provides 

healthcare services or healthcare 

support services when subject to the 

requirements of the Healthcare ETS (29 

CFR 1910.502). It also does not apply to 

employees who do not report to a 

workplace where other individuals such 

as coworkers or customers are present, 

employees while they are working from 

home, or employees who work 

exclusively outdoors. 

As noted above, OSHA has the legal 

duty to demonstrate that the average 

employer covered by this ETS can 

comply with that standard in most 

operations most of the time. This legal 

analysis is therefore focused solely on 

whether employers with 100 or more 

employees can comply with the 

standard. OSHA’s rationale for that 

scope threshold of 100 or more 

employees is explained in the Summary 

and Explanation for paragraph (b), 

Section VI.B. of this preamble. 

As discussed below, OSHA finds no 

technological feasibility barriers related 

to compliance with the requirements in 

the ETS. These requirements include 

establishing and implementing a written 

mandatory COVID–19 vaccination 

policy or alternative policy requiring 

testing and face coverings; determining 

employee vaccination status; supporting 

employee vaccination by providing paid 

time for vaccination and time off for 

recovery; ensuring that employees who 

are not fully vaccinated are tested for 

COVID–19 at least once every seven 

days and wear face coverings; and 

recordkeeping for employee vaccination 

status and testing. 

OSHA reviewed numerous large-scale 

employer surveys and vaccination and 

testing policies developed by 

employers, public health organizations, 

trade association, and local, state, and 

federal governmental bodies. While 

OSHA discusses several examples of 

these plans and policies below,20

OSHA’s feasibility determination is 

based on all evidence in the rulemaking 

record. The majority of the survey data 

and other publicly available material 

that OSHA reviewed pertains to large 

employers with 100 or more employees. 

Additionally, OSHA thoroughly 

reviewed current and future projections 

of the availability of COVID–19 tests, 

testing supplies, and laboratory 

capacity. Based on a review of 

vaccination and testing policies among 

large employers, OSHA has determined 

that most employers covered by this 

standard across a wide range of 

industries have either already 

implemented vaccination and testing 

programs and require unvaccinated 

employees to wear face coverings, or are 

capable of implementing programs that 

comply with the requirements in the 

ETS most of the time. OSHA therefore 

finds that the standard is 

technologically feasible. 

I. Employer Policy on Vaccination 

Paragraph (d)(1) of the ETS requires 

each covered employer to establish and 

implement a written mandatory 

vaccination policy unless the employer 

adopts an alternative policy requiring 

COVID–19 testing and face coverings for 

unvaccinated employees, which is 

discussed later. To meet the definition 

of ‘‘mandatory vaccination policy’’ 

under paragraph (c), the policy must 

require: Vaccination of all employees, 

including all new employees as soon as 

practicable, other than those employees 

(1) for whom a vaccine is medically 

contraindicated, (2) for whom medical 

necessity requires a delay in 

vaccination, or (3) those legally entitled 

to a reasonable accommodation under 

federal civil rights laws because they 

have a disability or sincerely-held 

religious beliefs, practices, or 

observances that conflict with the 

vaccination requirement. 

OSHA requires employers to 

implement a mandatory vaccination 

requirement, but provides an exemption 

for an alternative policy that allows 

employees to choose either to be fully 

vaccinated or to be regularly tested and 

wear a face covering. This compliance 

options mean that the ETS is 


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21https://www.healthaction.org/resources/ 

vaccines/covid-19-vaccines-employer-requirementshealth-action-alliance?0405d6f4_page=1 (last 

visited October 2, 2021). 

technologically feasible if employers 

across various industries are capable of 

implementing either policy, but 

nevertheless OSHA analyzes both 

employer policy options to demonstrate 

that there are no significant 

technological barriers to either 

approach. 

OSHA reviewed several large-scale 

employer surveys related to vaccination 

policies across the country covering a 

wide range of industry sectors. Surveys 

conducted by Arizona State University 

(ASU) and the World Economic Forum 

(WEF), called COVID–19 Workplace 

Commons—Keeping Workers Well, 

show that most employers already have 

some type of vaccination policy, with 

more than 60 percent of surveyed 

employers requiring vaccinations for 

some or all employees. These survey 

results further support OSHA’s 

determination that the vaccination 

policy requirement is feasible. 

The ASU WEF workplace COVID–19 

surveys collected information from 

employers across industry sectors about 

their response to the COVID–19 

pandemic. The results and responses 

from more than 1,400 companies are 

publicly available through the ASU 

College of Health Solutions web page 

COVID–19 Diagnostics Commons (ASU, 

October 5, 2021). Case studies from 

employers are also available within the 

interactive dashboard on that web page. 

The surveys consisted of numerous 

questions about workplace pandemic 

response, including questions related to 

vaccination policies and testing 

unvaccinated employees. 

The most recent COVID–19 survey 

data was collected between August 2, 

2021 and August 20, 2021 and reported 

in September 2021 (accessible through 

the COVID–19 Workplace Commons). 

More than 1,400 companies operating 

1143 facilities in 23 industry sectors 

were part of the survey, the majority of 

which are companies of the size covered 

by the ETS. Ninety percent of facilities 

surveyed had 100 or more employees at 

their facilities, and 56% had more than 

100 but less than 1,000 employees at 

their facilities. The industry sectors 

surveyed include: Technology and 

software; business and professional 

services; manufacturing; construction; 

healthcare, hospitals, and clinics; retail 

stores; retail food stores; consumer retail 

service; energy and utilities; nonprofit 

organizations; education (colleges and 

universities); education (pre-K to 12); 

real estate and property management; 

agriculture and food production; 

healthcare services; media and 

entertainment; government and quasipublic; biotech, pharmaceuticals, and 

diagnostics; restaurants and food 

service; hotels and casinos; 

transportation, distribution, and 

logistics; consumer transportation; and 

recreation (ASU WEF, September 2021). 

The survey responses related to 

vaccination policies support OSHA’s 

determination that it is feasible for 

covered employers to implement 

mandatory COVID–19 vaccination 

policies. The survey results showed that 

45% of employers surveyed require all 

employees to be vaccinated against 

COVID–19, and an additional 16% 

require some of its employees to be 

vaccinated against COVID–19. (ASU 

WEF, September 2021). Only three 

percent of employers surveyed did not 

have a vaccination policy at the time 

(ASU WEF, September 2021). While this 

survey covers a wide range of industries 

it may not represent the percentage of 

companies implementing mandatory 

vaccination policies in general 

populations but for the feasibility 

purposes it demonstrates that it has and 

can be done. 

OSHA also reviewed slightly older 

survey data, which, even though it 

shows somewhat lower rates of 

employer vaccination mandates, still 

supports OSHA’s finding that such 

vaccination polices are feasible. In late 

June 2021, the National Safety Council 

(NSC) conducted three national surveys, 

one organizational and two workforce, 

of private companies, nonprofits, legal 

experts, public health professionals, 

medical professionals and government 

agencies that have addressed workforce 

COVID–19 vaccinations based on best 

practices and proven workplace safety 

strategies. The survey results show that 

many employers and organizations are 

currently requiring employees to be 

vaccinated. 

The three surveys were distributed to 

300 employers and organizations across 

the country and from a wide range of 

industries to collect data on pandemic 

response, including implementation of 

COVID–19 vaccine policies and testing 

among their workforce. Of the 

employers and organizations surveyed 

in June 2021, the NSC found that 20% 

were implementing some form of a 

worker vaccination requirement. While 

OSHA believes that the ASU WEF 

surveys (which included more 

employers and are more recent) are 

better indicators of current employer 

vaccination policies, the NSC surveys 

also support the feasibility of employer 

vaccination mandates (NSC, September 

2021) 

The NSC, in partnership with the 

Health Action Alliance (HAA) and the 

Centers for Disease Control and 

Prevention (CDC), have developed a 

multifaceted, comprehensive effort 

called SAFER, aimed at helping 

employers prioritize health and safety as 

they develop plans and polices for their 

employees to return to the workplace 

(NSC, May 17, 2021). Through SAFER, 

the NSC and HAA developed a webbased decision tool to guide employers 

on health, legal, and other 

considerations to prioritize the health 

and safety of workers. Due to the Delta 

Variant surge of new COVID–19 cases 

across the United States, the NSC and 

HAA revised the SAFER resources, 

including the online tool, to include 

information about employer 

requirements for COVID–19 

vaccinations. These include guides for 

developing plans and policies to 

support employee vaccination through 

mandates and incentives; the collection 

and maintenance of COVID–19 

vaccination records; and various 

considerations for testing unvaccinated 

workers. (HAA and NSC, September 17, 

2021). The availability of these publiclyaccessible tools to help employers 

develop vaccination policies further 

reduces any potential barriers for 

covered employers to establish and 

implement a written policy requiring 

each employee to be fully vaccinated 

against COVID–19, or alternatively to 

establish a policy allowing employees to 

choose whether to be fully vaccinated or 

tested for COVID–19 at least every seven 

days and wear face coverings. 

The HAA maintains an online list of 

large companies requiring vaccinations 

for all or part of their workforce or 

customers. OSHA reviewed the list of 

companies, drawn from news reports 

and employer websites, with 

requirements for COVID–19 vaccination. 

Most of the companies listed require 

some or all employees to be vaccinated 

against COVID–19 while allowing 

medical exemptions or reasonable 

accommodations for disability or 

religious reasons. There are currently 

188 listed companies across numerous 

industry sectors, including Amtrak, 

Deloitte, Google, The Walt Disney 

Company, Walmart, and the U.S. 

Chamber of Commerce.21

While healthcare employers subject to 

29 CFR 1910.502 are not covered by this 

ETS, a number of large healthcare 

employers have implemented 

mandatory vaccine policies. This also 

shows the feasibility of the employers 

implementing mandatory vaccination 

requirements, often on large scales. 

According to the American Hospital 

Association (AHA), over 1,800 hospitals 


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have one or more vaccination 

requirements in place (Becker’s Hospital 

Review, October 11, 2021). Large 

healthcare employers mandating that 

their employees be vaccinated include 

Kaiser Permanente, the nation’s largest 

integrated, nonprofit health care 

organization with more than 216,000 

employees and more than 23,000 

physicians (Kaiser Permanente, August 

2, 2021); Trinity Health, one of the 

largest multi-institutional Catholic 

health care delivery systems in the 

nation, with more than 123,000 

employees and 90 hospitals in 22 states 

(Trinity Health, July 8, 2021); Sanford 

Health, which operates in 26 states and 

employs nearly 50,000 people (Sanford 

Health, July 22, 2021); and Genesis 

Health Care, a large U.S. nursing home 

chain with over 40,000 employees 

working in more than 250 centers across 

23 states (Genesis Health Care, 

September 29, 2021). 

Under paragraph (d)(2), if employers 

do not establish and implement a 

written mandatory vaccination policy, 

the employer must establish and 

implement a written policy allowing 

any employees not subject to a 

mandatory vaccination policy to either 

choose to be fully vaccinated or 

regularly tested for COVID–19 and wear 

a face covering. A substantial number of 

employers already have such policies in 

place. For example, the ASU WEF 

survey shows that 30% of employers 

surveyed require unvaccinated 

employees to participate in mandatory 

COVID–19 testing and 30% of 

employers require face coverings for 

unvaccinated employees (ASU WEF, 

September 2021). 

OSHA also notes a number of state 

COVID–19 vaccination requirements. In 

response to the Delta Variant surge, 19 

states have implemented written 

COVID–19 vaccination and testing 

policies for state employees and 23 

states have done so for healthcare 

employees (NASHP, October 1, 2021). 

For example, on September 20, 2021, 

the Colorado Department of Public 

Health and Environment (CDPHE) 

implemented policies requiring state 

employees and personnel at health care 

facilities and hospitals to be fully 

vaccinated against COVID–19. All state 

employees must either be fully 

vaccinated against COVID–19 or 

participate in twice-weekly testing. 

Employees are allowed work time to get 

tested and administrative or Public 

Health Emergency Leave to get 

vaccinated. Employees who are not fully 

vaccinated must wear masks inside state 

facilities when they are around others. 

On August 30, 2021, the State Board of 

Health approved a vaccine requirement 

for personnel in health care settings 

with high-risk patients. All personnel 

affected by this rule needed to receive 

their first dose of COVID–19 vaccine by 

September 30, 2021, and must be fully 

vaccinated by October 31, 2021 (CDPHE, 

September 17, 2021). 

A number of local governments have 

also implemented policies requiring 

COVID–19 vaccination or testing for 

employees. For example, the Fulton 

County Board of Commissioners in 

Georgia recently approved a ‘‘Vax or 

Test’’ policy requiring employees to get 

vaccinated or tested for COVID–19 each 

week. Since September 6, 2021, Fulton 

County has required all County 

employees, as a condition of 

employment, to either be vaccinated 

against COVID–19 or be tested weekly 

for COVID–19 unless an employee is 

granted a reasonable accommodation 

(Fulton County Government, September 

03, 2021). The multitude of local, state, 

and employer vaccination or testing 

mandates across the country support 

OSHA’s finding that such policies are 

feasible. 

II. Determining Employee Vaccination 

Status 

Paragraph (e) of the ETS requires 

employers to determine the vaccination 

status of each employee. Employers 

must require employees to provide an 

acceptable proof of vaccination status, 

including whether they are fully or 

partially vaccinated. As discussed in 

Summary and Explanation (Section VI. 

of this preamble), acceptable proof of 

vaccination status is: (i) The record of 

immunization from a health care 

provider or pharmacy; (ii) a copy of the 

COVID–19 Vaccination Record Card; 

(iii) a copy of medical records 

documenting the vaccination; (iv) a 

copy of immunization records from a 

public health, state, or tribal 

immunization information system; or a 

copy of any other official 

documentation that contains the type of 

vaccine administered, date(s) of 

administration, and the name of the 

health care professional(s) or clinic 

site(s) administering the vaccine(s). A 

signed and dated employee attestation is 

acceptable in instances when an 

employee is unable to produce proof of 

vaccination. Given the attestation 

option, there are no technological 

barriers to the provision for proof of 

vaccination status. As discussed below, 

many employers requiring proof of 

vaccination have successfully 

implemented such policies even 

without allowing the flexibility of the 

attestation option. 

The employer must maintain a record 

and a roster of each employee’s 

vaccination status. This information is 

subject to applicable legal requirements 

for confidentiality of medical 

information. These records must be 

preserved while the ETS is in effect. 

OSHA is not aware of any technological 

challenges that the large employers 

covered by this ETS would face with 

respect to collecting and maintaining 

records. This is a performance-based 

requirement, meaning that employers 

have the flexibility to structure their 

systems to fit within current systems, 

such as those relating to personnel 

records, tax records, and other sensitive 

or confidential records gathered and 

maintained by large employers. 

A number of the surveys discussed 

above also show that most employers 

with vaccine mandates require proof of 

vaccination. For example, ASU WEF 

workplace COVID–19 survey from fall 

2021 found that 60% of employers that 

required vaccinations also required 

proof of vaccination from employees. 

The NSC study from June 2021 found 

that 45% of employers with COVID–19 

vaccination requirements required proof 

of vaccination, such as submitting a 

copy of the COVID–19 vaccination card. 

An additional 30% of employers 

surveyed verify employee vaccination 

status through self-reporting based on 

the honor system. 

Additionally, a large-scale survey 

conducted by the Willis Towers Watson 

consulting firm between August 18 and 

25, 2021, showed that a majority of 

employers currently track their 

employees’ vaccination status. Nearly 

one thousand employers responded to 

this survey, and they collectively 

employ 9.7 million workers from 

industries across the public and private 

sectors including manufacturing, 

general services, wholesale and retail, IT 

and telecom, healthcare, financial 

services, energy and utilities, and public 

sector and education (Willis Towers 

Watson, June 23, 2021). Nearly six in 10 

(59%) currently track their workers’ 

vaccination status and another 19% are 

planning or considering doing so later 

this year. A majority (62%) of those 

employers who currently track their 

workers’ vaccination status require 

proof of vaccination, such as CDC 

vaccination cards, while 36% rely on 

employees to self-report (Willis Towers 

Watson, September 1, 2021). 

Other evidence in the record also 

supports the feasibility both of gathering 

proof of vaccination and determining 

employees’ vaccination status. Many 

large employers with vaccination 

policies require employees to submit 

proof of vaccination. For example, 

Tyson Foods requires employees to 

submit proof of vaccination to Tyson 


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Foods Vaccination Verification Program 

in order to qualify for the company’s 

vaccination incentive (Tyson Foods, 

August 3, 2021). Similarly, Capital One 

bank requires all employees, 

contractors, vendors, and visitors to 

Capital One facilities to show proof of 

vaccination. (Capital One, August 11, 

2021). The International Union of 

Painters and Allied Trades (IUPAT), 

which represents 140,000 craftspeople 

in the U.S. and Canada and has 

implemented vaccine requirements for 

its members, also requires all of its own 

non–bargaining unit office and field 

employees to show proof of vaccination. 

(IUPAT, May 10, 2021). 

CVS Health, a health conglomerate 

with more than 300,000 employees, 

including more than 40,000 physicians, 

pharmacists, nurses and nurse 

practitioners, has mandated COVID–19 

vaccination for its nurses, pharmacists 

and other employees who interact with 

patients and requires proof of 

vaccination for those employees (CVS 

Health, August 23, 2021). 

The surveys and employer policies 

reviewed by OSHA all support the 

agency’s finding that it is feasible for 

employers to determine their 

employees’ vaccination status and 

collect proof of vaccination. 

III. Providing Support for Vaccination 

Paragraph (f) of the ETS requires 

employers to support COVID–19 

vaccination for each employee by 

providing a reasonable amount of time 

to each employee for vaccination and 

reasonable time and paid sick leave to 

each employee for side effects 

experienced following vaccination. The 

feasibility of paying for the time is 

addressed in OSHA’s economic 

analysis. 

This technological feasibility 

determination focuses on whether 

employers would encounter obstacles in 

implementing payment policies that 

would make this requirement infeasible 

for the large employers covered by this 

ETS. OSHA has determined that there 

are no such obstacles. Most 

significantly, OSHA has already 

required this type of system for 

employers covered by the Healthcare 

ETS and nearly four months after that 

ETS took effect, OSHA is not aware that 

employers covered by that ETS 

experienced any technological 

compliance difficulties with respect to 

that requirement. In addition, many 

employers have already implemented 

policies such as those required to 

comply with this new ETS as a way of 

incentivizing employee vaccination. For 

example, the ASU WEF workplace 

COVID–19 survey from fall 2021 found 

that 60% of employers surveyed offered 

incentives for employees to be 

vaccinated. These incentives ranged 

from additional paid time off, cash, the 

ability to bypass regular testing and/or 

daily health screening requirements, 

and gifts. Eighteen percent of surveyed 

employers already provide additional 

time off for COVID–19 vaccination. 

Moreover, the NSC survey found that 

86% of surveyed organizations had 

implemented policies such as paid time 

off, assistance with scheduling and 

transportation, and/or onsite 

vaccination. 

OSHA’s review of plans and best 

practice documents from the HAA 

registry and from other publiclyavailable sources also inform OSHA’s 

finding that it is feasible for large 

employers to support employee 

vaccination (HAA, October 10, 2021). 

As part of this review, OSHA analyzed 

the ways that employers are currently 

supporting employee vaccination. One 

employer in the restaurant industry, the 

Fifty/50 Group, a Chicago-based 

restaurant group comprised of 14 

establishments that requires employees 

to be fully vaccinated, offers paid time 

off for anyone getting a vaccine or 

feeling the mild after-effects. (Fifty/50 

Group, May 18, 2021). Another 

employer in the animal slaughtering and 

processing industry, Tyson Foods, 

requires COVID–19 vaccinations for its 

U.S. workforce and also offers $200 and 

up to four hours of regular pay if 

employees are vaccinated outside of 

their normal shift or through an external 

source (Tyson Foods, August 3, 2021). 

In addition, Tyson Foods supports 

onsite vaccination events in 

collaboration with local health 

departments and healthcare providers to 

improve accessibility to vaccination. 

Tyson Foods has hosted more than 100 

vaccination events at its locations across 

the country. 

The evidence in the record 

demonstrates that many employers are 

already offering the types of vaccination 

support required by paragraph (f). 

Combined with OSHA’s previous 

finding for a similar provision in the 

Healthcare ETS and the lack of 

compliance difficulties reported while 

that ETS has been in effect, OSHA 

therefore finds this requirement is 

technologically feasible. 

IV. COVID–19 Testing for Employees 

Who Are Not Fully Vaccinated 

Paragraph (g) of the ETS requires 

employers to ensure that employees 

who are not fully vaccinated and who 

report at least once every seven days to 

a workplace where other individuals 

such as coworkers or customers are 

present are: (1) Tested for COVID–19 at 

least once every seven days; and (2) 

provide documentation of the most 

recent COVID–19 test result to the 

employer no later than the seventh day 

following the date the employee last 

provided a test result. Employers must 

also ensure that employees who are not 

fully vaccinated and do not report 

during a period of seven or more days 

to a workplace where other individuals 

are present are: (1) Tested for COVID– 

19 within seven days prior to returning 

to the workplace; and (2) provide 

documentation of that test result upon 

return to the workplace. 

Employees who are not fully 

vaccinated must be tested with a 

COVID–19 test, which is a test for 

SARS–CoV–2 that is: (i) Cleared, 

approved, or authorized, including in an 

Emergency Use Authorization (EUA) by 

the U.S. Food and Drug Administration 

(FDA) to detect current infection with 

the SARS–CoV–2 virus (e.g., a viral 

test); (ii) administered in accordance 

with the authorized instructions; and 

(iii) not both self-administered and selfread unless observed by the employer or 

an authorized telehealth proctor. 

Examples of tests that satisfy this 

requirement include tests with 

specimens that are processed by a 

laboratory (including home or on-site 

collected specimens which are 

processed either individually or as 

pooled specimens), proctored over-thecounter tests, point of care tests, and 

tests where specimen collection is either 

done or observed by an employer. 

COVID–19 testing has become more 

widely available throughout the 

pandemic and as of September 2021, the 

FDA has authorized approximately 250 

tests and collection kits that diagnose 

current infection with the SARS– 

CoV–2 virus and may be acceptable 

under the ETS (FDA, September 10, 

2021), and by October 1, 2021, the 

number of EUAs issued had grown to 

324 (FDA, October 1, 2021). The ETS 

permits compliance through use of a 

wide range of FDA-authorized tests that 

are readily available, so there is little 

doubt that testing itself is 

technologically feasible. 

This technological feasibility analysis 

therefore focuses on whether testing 

will continue to be readily available in 

quantities sufficient to meet the 

potential increase in testing demand 

while this ETS is in place. Given the 

wide variety of tests that can be used to 

comply with this ETS and OSHA’s 

review of information about the existing 

manufacturing and distribution 

capabilities of test manufacturers, the 

agency does not anticipate feasibility 

issues related to ensuring that 


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employees can get access to one of the 

acceptable tests within the time frames 

required by the ETS. 

a. Brief Overview of Testing and 

Administration 

COVID–19 tests that are cleared, 

approved, or authorized, including in an 

Emergency Use Authorization (EUA), by 

the FDA to detect current infection with 

the SARS–CoV–2 virus (e.g., a viral test) 

satisfy the ETS. FDA-cleared, approved, 

or authorized molecular diagnostic tests 

and antigen tests are permitted under 

the ETS when used as authorized by the 

FDA and with a Clinical Laboratory 

Improvement Amendments of 1988 

(CLIA) certification when appropriate. 

As described in the Summary and 

Explanation for paragraph (g) (Section 

VI.G. of this preamble), NAATs are a 

type of molecular test that detect genetic 

material. As of October 14, 2021, the 

FDA had issued EUAs for 264 molecular 

COVID–19 tests including tests 

specified to be used ‘‘with certain 

conditions of authorization required of 

the manufacturer and authorized 

laboratories’’, 81 of which are 

authorized for home collection. 

Additionally, the FDA has issued EUAs 

for 2 OTC molecular COVID–19 test kits 

available without a prescription (FDA, 

October 14, 2021b). 

NAATs, such as real-time reverse 

transcription-polymerase chain reaction 

(RT–PCR), have greater accuracy than 

antigen tests. However, most FDAauthorized NAATs need to be processed 

in a laboratory certified under the 

Clinical Laboratory Improvement 

Amendments of 1988 (referred to as a 

‘‘CLIA-certified laboratory’’) with 

variable time to results (∼1–2 days). 

While the NAAT test is a more reliable 

test, the antigen test is faster and less 

expensive. 

An antigen test is an in vitro 

diagnostic test used to detect active 

SARS–CoV–2 infection. As of October 

14, 2021, the FDA had issued 37 EUAs 

for COVID–19 antigen tests, including 

eight EUAs for over-the-counter (OTC) 

antigen tests that can be used without a 

prescription (FDA, October 14, 2021a). 

Administration of an antigen test that 

meets the definition of COVID–19 test 

under this ETS falls into one of several 

categories: OTC employee self-tests that 

are observed by employers or authorized 

telehealth proctors; point-of-care (POC) 

or OTC tests performed by employers 

with a CLIA certificate of waiver; and 

other FDA cleared, approved, or 

authorized antigen tests that are 

analyzed in a CLIA certified laboratory 

setting (FDA, October 14, 2021a). The 

FDA has authorized POC tests that can 

be used at a place of employment when 

the facility is operating under a CLIA 

certificate of waiver. A CLIA certificate 

of waiver can be issued by CMS and 

may, when consistent with FDA’s 

authorization, allow a laboratory to run 

a SARS–CoV–2 test outside a high or 

moderate complexity traditional clinical 

laboratory setting (CDC, September 9, 

2021). In accordance with the CLIA 

certificate of waiver, the laboratory or 

POC testing site must use a test 

authorized for that location, like an FDA 

EUA POC test, and must adhere to the 

authorized test instructions to avoid 

human error. Certain COVID–19 antigen 

diagnostic tests can be analyzed on-site 

(where the person took the nasal swab) 

when that facility is operating under a 

CLIA certificate of waiver, while others 

must be analyzed in a CLIA certified 

high or moderate complexity laboratory 

setting. Some COVID–19 antigen 

diagnostic tests are authorized for use at 

home, without the need to send a 

sample to a laboratory. Antigen tests 

generally return results in 

approximately 15–30 minutes. The CDC 

provides training materials created by 

test manufacturers for POC antigen 

testing and reading of results for SARS– 

CoV–2 (CDC, July 8, 2021). 

COVID–19 antigen diagnostic tests are 

found at physician offices; urgent care 

facilities; pharmacies, such as CVS or 

Walgreens; school health clinics; longterm care facilities and nursing homes; 

temporary locations, such as drivethrough sites managed by local 

organizations; and other locations across 

the country (CDC, July 8, 2021; CVS 

Health, October 2021; Walgreens, 

October 8, 2021). The availability of 

government-offered antigen tests varies 

by state, and may be free or subsidized 

and accessible without a prescription or 

physician note (RiteAid, October 2021; 

Walgreens, October 2021; HHS, June 11, 

2021). The Department of Health and 

Human Services (HHS) provides a 

publicly-available list of communitybased testing locations in each state that 

offer free COVID–19 testing for insured 

and uninsured residents (HHS, August 

17, 2021). Pharmacies and other 

locations often provide antigen tests by 

appointment, although some will allow 

testing for walk-ins (CVS Health, 

September 2021; Walgreens, October 8, 

2021). COVID test kits are currently 

available from several on-line retailers 

(Amazon, October 12, 2021). 

b. Testing Frequency 

The ASU WEF survey data also 

supports OSHA’s finding that the 

requirement for employees who are not 

fully vaccinated to be tested at least 

every seven days is feasible. The ASU 

WEF found that 73% of survey surveyed 

employers (797 employers) had testing 

policies for their workforce, and 76% of 

those employers had implemented 

mandatory testing requirements. 

Additionally, 25% of employers with 

testing polices had implemented 

requirements for routine testing of a 

portion of or the entire workforce, and 

41% no longer require testing for fully 

vaccinated employees. Of the employers 

that test employees, 27% of those 

perform viral testing daily and 46% 

perform viral test once a week. Finally, 

38% of companies exclusively 

administer polymerase chain reaction 

(PCR) tests (PCR tests are a type of 

NAAT), 17% exclusively administer 

antigen tests, and 45% administer both. 

Companies administer a range of 

COVID–19 tests and conduct testing at 

a variety of locations (some companies 

use more than one location). Forty-two 

percent of companies test workers at 

health testing laboratories, 35% test 

onsite at work, 28% test at hospitals, 

23% test at retail pharmacies, 13% test 

at universities, 9% test at home to be 

sent a lab for evaluation, and 5% test at 

home for immediate results (ASU WEF, 

September 2021). 

OSHA also evaluated evidence of 

employers’ current testing efforts by 

reviewing existing COVID–19 practices 

developed by employers, trade 

associations, and other organizations. 

Based on its review, OSHA concludes 

that it is feasible for most covered 

employees (and therefore their 

employers) to be tested in compliance 

with the ETS requirements for 

frequency of testing. 

OSHA notes that there are several 

options for large employers to consider 

if they want to help facilitate testing for 

employees who are not vaccinated. 

Delta Airlines, for example, currently 

requires weekly COVID–19 testing for 

all of its employees who are not 

vaccinated, and the company has 

engaged the Mayo Clinic Laboratories to 

help design the employee testing 

program, assist in administering 

diagnostic and serology tests, and 

analyze the results to determine broader 

trends and provide recommendations to 

Delta’s existing policies and procedures 

(Mayo Clinic Laboratories, June 30, 

2020). Delta Airlines also operates 

onsite testing in cities with large 

employee populations including 

Atlanta, Minneapolis, and New York. It 

recently extended an at-home specimen 

collection option to all U.S. employees, 

through which Quest Diagnostics will 

send self-collection kits directly to an 

employee’s doorstep upon request and 

support complete laboratory 

confirmation for results (Delta, August 

25, 2021). 


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c. Availability of COVID–19 Tests 

In the spring and early summer 

months of 2021, demand for tests 

decreased as vaccinations began to 

increase and the number of COVID–19 

cases declined before the Delta surge 

and some manufacturers slowed 

production of COVID–19 tests. 

However, the number of tests performed 

daily has grown considerably over the 

summer due to the Delta Variant surge 

and re-openings of workplaces and 

schools. In parallel with the Delta surge, 

COVID–19 testing has increased from a 

daily average of about 450,000 in early 

July 2021 to about 1.8 million by midSeptember 2021, or roughly 12.6 million 

per week (JHU, October 8, 2021). This 

data does not include any selfadministered OTC tests, which will be 

discussed below. 

OSHA’s review of the evidence shows 

that the increasing rate of production of 

COVID–19 tests is more than adequate 

to meet rising demand related to 

compliance with the ETS testing option 

before the 60-day delayed testing 

compliance date (see paragraph 

(m)(2)(ii)). This determination is largely 

based on the number of tests with FDA 

EUAs actively being produced through 

the National Institutes of Health (NIH) 

Rapid Acceleration of Diagnostics 

(RADx) initiative described below. 

According to the Johns Hopkins 

University of Medicine Coronavirus 

Resource Center, the total tests 

administered in August 2021 was 

approximately 44.4 million (or 

approximately 11.1 million per week). 

Id. During that same month, the total 

tests produced by the NIH RADx 

contracts was approximately 121 

million (which would average to 30.25 

million per week), resulting in a 

substantial surplus of available tests 

(NIBIB, September 28, 2021). As 

discussed in Economic Analysis, 

Section IV.B. of this preamble, Table 

IV.B.8, OSHA estimates that as many as 

7.2 million tests may be administered 

weekly under this standard; however, 

7.2 million is almost certainly an 

overestimate because it does not 

exclude employees who are already 

required to be tested by their employers 

and would continue to be tested at the 

same frequency after the ETS. Even if 

testing is increased by 7.2 million tests 

per week because of the ETS, that would 

still mean a surplus of nearly 12 million 

tests per week beyond what would be 

need to continue at current testing 

levels with the addition of ETS-related 

tests (30.25 ¥ 11.1 ¥ 7.2 = 11.95 

million surplus per week). 

The total number of tests 

administered during June, July, and 

August 2021, the period of the summer 

including the Delta Variant surge and 

other reasons for substantial testing 

increases such as re-opening of schools, 

was approximately 87 million tests, an 

average of approximately 6.7 million per 

week (JHU, October 8, 2021). During 

that period, more than 400 million 

COVID–19 tests were produced through 

the NIH RADx initiative, or roughly 33 

million per week. OSHA anticipates that 

this surplus of tests will continue to 

increase the availability of tests that can 

be used to comply with the ETS. 

The data from the Johns Hopkins 

Coronavirus Resource Center is 

collected from state and county 

government sources, so it does not 

include any self-administered OTC 

tests. Additionally, while all states 

report PCR testing, not all states report 

antigen testing. Nevertheless, the data 

from Johns Hopkins Coronavirus 

Resource Center is the best available 

evidence from which to estimate the 

total number of tests administered 

during a given period of time. Even 

though the number of administered tests 

reported through the Johns Hopkins 

Coronavirus Resource Center does not 

include unreported OTC tests, the NIH 

RADx program data shows a large 

surplus and sufficient additional 

COVID–19 test capacity relative to the 

number of administered tests reported. 

Additionally, the NIH RADx program 

will further allow for increased test 

distribution through retail markets and 

will address any increase in demand 

due to companies that may stockpile 

tests. This increased availability will 

strengthen test capacity, further 

enabling compliance with the ETS 

testing provision (NIBIB, September 28, 

2021). OSHA has determined that even 

with an estimated additional 7.2 million 

tests administered weekly due to the 

ETS (see Economic Analysis (Section 

IV.B. of this preamble)), there are 

sufficient COVID–19 tests available to 

allow for both employers and employees 

to obtain COVID–19 tests through a 

variety of retail sources (e.g., local 

pharmacies, on-line purchasing as 

discussed above). 

Determinations of testing capacity are 

aggregate measures of domestic and 

global market and supply chains. 

Throughout the pandemic, diagnostic 

testing capacity has been stressed by the 

increased demand, as some products 

that are part of a global market cannot 

adapt by simply increasing 

manufacturing in one country (e.g., 

laboratory instruments), and other 

products manufactured domestically 

require capital investments to address 

rising demands (e.g., extraction kits) 

(CRS, February 25, 2021). As discussed 

below, because of the substantial 

investments made, OSHA projects that 

the diagnostic testing capacity can meet 

the increased demand due to this ETS. 

OSHA evaluated multiple projections 

of current and future testing capacity 

and determined that projections related 

to the NIH initiatives discussed below 

are the most reliable estimates of current 

and future testing capacity for its 

technological feasibility assessment. 

Test manufacturers receiving NIH, FDA, 

and Biomedical Advanced Research and 

Development Authority (BARDA) (a 

component of HHS) funding as part of 

these programs undergo a submission 

and authorization process where their 

production capacity and pipeline are 

assessed and production quantities are 

validated. As explained below, as of 

August 2021, the NIH data indicates 

testing capacity stands at about 30 

million tests per week, and capacity 

continues to grow (NIBIB, September 

28, 2021). OSHA notes that this number 

underestimates the total number of tests 

available each week, as it only includes 

companies that have received funding 

for tests and testing supplies through 

the NIH initiatives described below. 

The NIH has identified constraints on 

testing capacity as an area of focus and 

investment since the beginning of the 

COVID–19 pandemic, and OSHA 

examined potential constraints on 

testing capacity as part of its feasibility 

analysis. As described below, massive 

investments in testing capabilities, 

particularly in underserved areas, have 

largely mitigated issues with the 

availability of COVID–19 tests. Further, 

testing capacity continues to grow as 

new tests are developed and brought to 

market and manufacturers can ramp up 

supply to meet any future testing 

demands if need be. 

The FDA has authorized more than 

320 tests and collection kits that 

diagnose current infection with the 

SARS–CoV–2 virus and may be 

acceptable under the ETS (FDA, October 

1, 2021). Among other criteria, the 

standard allows for the use of tests with 

specimens that are processed by a CLIA 

certified laboratory (including home or 

on-site collected specimens which are 

processed either individually or as 

pooled specimens), proctored over-thecounter tests, point of care tests, and 

tests where specimen collection and 

processing is either done or observed by 

an employer. As explained above, many 

employers across various industry 

sectors have already implemented 

policies for onsite testing. The use of 

FDA-authorized POC tests by these 

employers would be compliant with the 

testing provision of the ETS if the entity 

administering the test holds a CLIA 


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certificate as required by the EUA. 

COVID–19 OTC tests that are both selfadministered and self-read by 

employees do not satisfy the testing 

requirement unless observed by the 

employer or an authorized telehealth 

proctor. In the event that the employer 

is merely observing the employee 

conduct a test, a CLIA certificate would 

not be needed. 

There have been extensive 

investments, including by the federal 

government, to help ensure that COVID– 

19 tests are widely available. Section 

2401 of the American Rescue Plan 

appropriated $47,800,000 to the 

Secretary of the HHS, to remain 

available until expended, to carry out 

activities to detect, diagnose, trace, and 

monitor SARS–CoV–2 and COVID–19 

infections and related strategies to 

mitigate the spread of COVID–19. Funds 

were made available to implement a 

national testing strategy; provide 

technical assistance, guidance, support, 

and awards grants or cooperative 

agreements to State, local, and territorial 

public health departments; and support 

the development, manufacturing, 

procurement, distribution, and 

administration of tests to detect or 

diagnose SARS–CoV–2 and COVID–19; 

and establish federal, state, local and 

territorial testing capabilities. 

On April 29, 2020, the NIH 

established the RADx initiative with a 

$1.5 billion investment. The RADx 

initiative has used this funding to speed 

development of rapid and widelyaccessible COVID–19 testing (NIH, April 

29, 2020). On October 6, 2020, the NIH 

and BARDA established the RADx 

Technology (RADx-Tech) and RADx 

Advanced Technology Platforms (RADxATP) programs to speed innovation in 

the development, commercialization, 

and implementation of technologies for 

COVID–19 testing specifically for latestage scale-up projects. Through the 

RADx Tech and RADx-ATP programs, 

the NIH and BARDA have awarded a 

total of $476.4 million in manufacturing 

expansion contracts supporting a 

combined portfolio of 22 companies in 

the U.S. (NIH, October 6, 2020). 

These programs have significantly 

increased testing capacity throughout 

the country. Since being established, 

RADx has worked closely with the FDA, 

the CDC, and BARDA to move more 

advanced diagnostic technologies 

swiftly through the development 

pipeline toward commercialization and 

broad availability. On April 28, 2021, 

the Institute of Electrical and Electronic 

Engineers (IEEE) dedicated a special 

issue in the Journal of Engineering in 

Medicine and Biology exploring the 

innovative structure and operation of 

the RADx Tech program and determined 

that the initiatives had succeeded in 

dramatically increasing COVID–19 

testing capacity in the United States. 

The IEEE report found that the RADx 

Tech/ATP programs, in conjunction 

with BARDA and the FDA, had 

streamlined and bolstered the national 

COVID–19 testing capacity. At the time 

of the report, the RADx Tech/ATP 

programs had increased the number of 

testing makers to 150 companies that, as 

a result of the NIH/BARDA investments, 

had the capacity to produce up to 1.9 

million tests per day (IEEE, April 28, 

2021). 

The NIH RADx-TECH/ATP initiative 

entered its second phase on September 

28, 2021, and at that time the supported 

companies had collectively produced 

over 500 million tests, received 27 FDA 

authorizations, and developed the first 

OTC COVID–19 test for use at home. 

These September 2021 investments are 

supporting late stage development of 

innovative point-of-care and homebased tests, as well as improved clinical 

laboratory tests that will increase the 

capacity of testing in the U.S. A full list 

of active contracts and supported U.S. 

COVID–19 testing manufacturers can be 

found on the NIH RADx-TECH/ATP 

programs: Phase 2 awards (NIBIB, 

October 14, 2021). 

The following example shows the NIH 

RADx EUA pipeline process. On May 9, 

2020, the FDA authorized the first EUA 

for a COVID–19 antigen test, a new 

category of tests for use in the ongoing 

pandemic. Quidel was awarded a 

contract under the NIH RADx TECH/ 

ATP phase 1 initiative for the Sofia 2 

SARS Antigen FIA for use in high and 

moderate complexity laboratories 

certified by CLIA, as well as for pointof-care testing by facilities operating 

under a CLIA certificate of waiver (FDA, 

May 9, 2020). On July 31, 2020, Quidel 

announced that it had received a 

contract for $71 million under the NIH 

RADx TECH/ATP program, phase 1, to 

accelerate the expansion of its 

manufacturing capacity for production 

of the SARS–CoV–2 rapid antigen test 

and quickly exceeded that capacity 

(Quidel Corp., July 31, 2020). On March 

31, 2021, the FDA then authorized a 

second EUA from Quidel under contract 

with the NIH RADx initiative for the 

QuickVue At-Home OTC COVID–19 

Test, another antigen test where certain 

individuals can rapidly collect and test 

their sample at home, without needing 

to send a sample to a CLIA certifed 

laboratory for analysis (FDA, March 31, 

2021). Furthermore, based on the 

success of the Quidel for the Sofia 2 

SARS Antigen FIA increasing 

production capacity, the NIH granted 

another $70 million contract for 

manufacturing Capacity Scale-Up for 

Sofia SARS Antigen and Sofia Influenza 

A+B/SARS FIAs on June 11, 2021 (FDA, 

June 11, 2021). 

The RADx-TECH/ATP initiative 

maintains a dashboard of manufacturer 

testing data from supported U.S. firms. 

OSHA reviewed the data available on 

the dashboard as part of its 

determination of feasibility. In August 

2021, the data showed that U.S. 

manufacturers supported by the NIH 

RADx-TECH/ATP were producing 

approximately 30 million tests per week 

(NIBIB, September 28, 2021). 

While consumers in some parts of the 

country have encountered difficulty 

obtaining rapid at-home tests, on 

October 4, 2021, the FDA granted EUA 

for the ACON Laboratories Flowflex 

COVID–19 Home Test, which is 

anticipated to double rapid at-home 

testing capacity in the United States 

within weeks (and well before 

compliance dates for testing required by 

this ETS) (FDA, October 4, 2021). By the 

end of the 2021 (ahead of the paragraph 

(g) compliance date), the manufacturer 

plans to produce more than 100 million 

tests per month and plans to produce 

more than 200 million tests per month 

by February 2022 (FDA, October 4, 

2021). On October 6, 2021, the 

Administration announced a plan to 

buy $1 billion worth of rapid at-home 

COVID–19 tests; this purchase, coupled 

with the October 4 authorization of the 

Flowflex COVID–19 test, is expected to 

increase the number of available athome COVID–19 tests to 200 million per 

month by December 2021 (Washington 

Post, October 6, 2021). 

These investments have had a 

pronounced impact on the availability 

of testing and employers’ use of testing 

in the workplace. ASU’s recent report, 

How Work has Changed: The Lasting 

Impact of COVID–19 on the Workplace, 

ascribed the jump in the percentage of 

employers that test their employees 

from 17% in the fall of 2020 to 70% in 

the fall of 2021 in large part to the 

increased availability of testing. In 

particular, the report noted that by the 

spring of 2021, ‘‘it became relatively 

easy to acquire tests and hire testing 

service providers. There are more labs 

and companies with EUA’s and most 

have enough capacity that there are few 

shortages.’’ (ASU WEF, September 

2021). 

Moreover, to ensure a broad, 

sustained capacity for COVID–19 test 

production, multiple COVID–19 test 

manufacturers have been mobilized by 

authority of the Defense Production Act. 

Under the Administration’s plan to 

increase COVID–19 testing, the federal 


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government will directly purchase and 

distribute 280 million- rapid point-ofcare and over-the-counter at-home 

COVID–19 tests, sending 25 million free 

at-home rapid tests to community health 

centers and food banks. These actions 

will provide tests for use by 

communities to build adequate 

stockpiles, as well as the sustained 

production to be able to scale up 

production as needed in the future. 

Additionally, to ensure convenient 

access to free testing, 10,000 pharmacies 

will be added to the Department of 

Health and Human Services free testing 

program. 

In response to rising demands for 

testing, U.S. manufacturers have 

increased production of COVID–19 test 

kit, reagents, and supplies. Advanced 

Medical Technology Association 

(AdvaMed), a trade group for testing 

manufacturers, reported that its 

members are ramping up production of 

rapid point-of-care test supplies to meet 

demand and that laboratory-based 

testing capacity for test confirmation is 

strong. AdvaMed has created a national 

COVID–19 Diagnostic Supply Registry 

of COVID–19 test manufacturers that 

support state and federal governments 

in their pandemic responses. Registry 

participants are thirteen leading 

diagnostic manufacturers whose tests 

together comprise approximately 75– 

80% of the COVID–19 in vitro 

diagnostic devices (IVD) on the market 

in the U.S. While these manufacturers 

produce a majority of molecular 

COVID–19 tests, they do not produce a 

majority of the total COVID–19 tests 

manufactured. These COVID–19 test 

manufacturers collectively shipped 

approximately 3.8 million tests in July 

2021, 8.2 million tests in August 2021, 

and 9.4 million molecular tests for the 

week ending September 4th, 2021 

(AdvaMed, September 10, 2021). While 

these figures are not representative of 

the total weekly testing capacity in the 

U.S., this data demonstrates that testing 

capacity has grown significantly over 

the past few months and reflects the 

success manufacturers have had in 

ramping up production of tests. 

While current test availability is 

sufficient to meet the increased testing 

demands due to the ETS, OSHA is also 

confident that the RADx-TECH/ATP 

initiatives will continue to spur testing 

capacity and growth. The RADx-TECH/ 

ATP initiatives have focused on moving 

test makers’ products through the late 

stage pipeline and securing FDA 

authorization for entry into the market. 

So far, there have been 27 such 

authorizations. As of September 2021, 

there were 824 eligible late-stage scale 

up proposals from various test makers 

up for review for NIH/BARDA funding. 

Furthermore, 517 of these submissions 

are for the authorization and production 

of multiple types of COVID–19 tests 

including one or more of the following: 

Blood, sputum, nasal swab, oral swab, 

fecal, saliva, or other types. OSHA 

considers this to be further support for 

its determination that testing capacity 

will continue to grow and that increased 

COVID–19 testing supplies are on the 

horizon (NIBIB, September 28, 2021). 

Based on data from the Johns Hopkins 

Coronavirus Resource Center, which 

examined publicly-available data from 

multiple sources, approximately 12.4 

million tests were conducted during the 

week of August 26–September 2, 2021. 

As noted earlier, in the economic 

analysis of this ETS, OSHA projects 

testing rates to increase by 

approximately 7.2 million tests per 

week starting 60 days after publication 

of the ETS. As described above, many 

employers are currently testing their 

workforce. This 7.2 million is almost 

certainly an overestimate because it 

does not exclude employees who are 

already required to be tested by their 

employers and would continue to be 

tested at the same frequency after the 

ETS. The data reviewed by OSHA on 

the RADx-TECH/ATP Dashboard shows 

that the manufacturers supported by the 

initiative are producing approximately 

30 million tests per week, and capacity 

continues to grow. As explained above, 

it is expected that roughly 50 million athome COVID–19 tests will be available 

each week by December 2021. OSHA 

therefore finds that there are (and will 

continue to be) sufficient COVID–19 

tests available to meet the anticipated 

demand related to compliance with 

paragraph (g) by the 60-day delayed 

compliance date. 

d. Availability of COVID–19 Test 

Supplies 

OSHA has also analyzed the 

availability of COVID–19 test supplies 

for use by COVID–19 test kit 

manufacturers, diagnostic laboratories, 

and determined that there are sufficient 

supplies to allow compliance with the 

ETS testing option. The COVID–19 

pandemic and recent Delta Variant 

surge have caused some disruptions in 

the availability of testing supplies such 

as swabs, viral transport medium, RNA 

extraction kits, serology consumables, 

diagnostic reagents, plastic 

consumables, and diagnostic 

instruments. The COVID–19 testing 

supply market is driven by the need to 

rapidly screen large segments of the 

population and deliver test results. The 

data presented throughout this 

assessment has shown demand for 

laboratory COVID–19 tests is rising 

across the country. 

Testing for COVID–19 involves many 

different components that are 

manufactured, transported, and used 

independently (e.g., bulk solvents, 

extracting reagents, packaging) or semiindependently (e.g., test kits). Most of 

the supplies used in COVID–19 testing 

are disposable, requiring a constant 

sustained capacity for new supplies. 

Some distribution channels move 

supplies directly to medical and 

laboratory end-users and others move 

supplies through distributors. In either 

case, the combination of increased 

testing demand and the established 

supply chains indicate that testing kits 

will be available in sufficient quantities 

throughout the country, including in 

rural areas where large employers may 

be located. 

There have been substantial 

investments from federal and state 

programs and private industry to 

stimulate the production and 

distribution of testing supplies to bolster 

testing capacity across the country. 

Many products, such as swabs and 

reagents for RNA extraction kits, 

exhibited rising demand and, at some 

point during the pandemic, were subject 

to shortages that threatened continued 

testing capacity. For example, there was 

only one domestic manufacturer of 

medical grade flocked swabs, Puritan 

Medical Products Company of Guilford, 

Maine, and the company’s prepandemic capacity was insufficient to 

meet demand of increased testing in the 

early period of the COVID–19 pandemic 

(Puritan Products, April 20, 2020). On 

July 29, 2020, the Department of 

Defense (DOD), in coordination with the 

Department of Health and Human 

Services, awarded $51.15 million to 

Puritan to expand industrial production 

capacity of flock tip testing swabs (DOD, 

July 31, 2020). On March 26, 2021, 

Puritan was awarded another $146.77 

million to increase the company’s total 

production capacity to 250 million foam 

tip swabs per month at its Tennessee 

facility by February 2022 (DOD, March 

29, 2021). 

Other private sector companies were 

mobilized to change the products they 

manufactured to accelerate production 

of COVID–19 test components, such as 

swabs, reagents, and solvents for RNA 

extraction kits. For example, 

Microbrush, a U.S.-based manufacturer 

of sterile applicators for the dental 

industry, began production of a 

nasopharyngeal test swab to meet the 

growing demand for COVID–19 testing 

requirements in July 2020. The 

Microbrush test swabs are sterilized and 

individually packaged in a medicalVerDate Sep<11>2014 22:27 Nov 04, 2021 Jkt 256001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\05NOR2.SGM 05NOR2

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grade pouch intended for 

nasopharyngeal sample collection such 

as in dental procedures and also 

COVID–19 testing (Microbrush, July 1, 

2020). 

RNA extraction kits are used by the 

majority of NAAT protocols. These kits 

are sets of consumable plastic laboratory 

materials (small centrifuge tubes, filters, 

and collection vials) and chemical 

reagents (solutions for breaking the 

virus apart and purification) assembled 

by a manufacturer. Each kit has enough 

materials to process several dozen 

samples. The use of RNA extraction kits 

is not exclusive to COVID–19 testing, 

meaning that a market existed preCOVID–19, and manufacturers were 

able to adapt to fluctuations in demand 

spurred by the pandemic. 

There are multiple companies with 

facilities in the United States that 

produce RNA extraction kits for the 

domestic market that have been 

awarded federal grants to increase the 

supply of COVID–19 test kits and 

reagent supplies. For example, in 

December 2020, the DOD and HHS 

identified several key reagents with the 

potential for supply chain bottlenecks 

and awarded a $4.8 million Indefinite 

Delivery/Indefinite Quantity contract to 

Anatrace Products, LLC to support 

increased production of key reagents for 

sample processing; Polyadenylic Acid 

(Poly A), Guanidinium Thiocyanate 

(GTC), and Proteinase K (Pro K) to 

process samples (DOD, December 21, 

2020). Additionally, QIAGEN (based in 

Germany with U.S. manufacturing in 

Germantown, Maryland) produces 

extraction kits for authorized COVID–19 

tests and has responded to the 

pandemic by scaling their production to 

around the clock production to 

strengthen testing kit capacity (Qiagen, 

October 2, 2021). On August 23, 2021, 

DOD, on behalf of and in coordination 

with HHS, awarded a $600,000 contract 

to QIAGEN to expand manufacturing 

capacity of enzymatic reagents and 

reagent kits used in COVID–19 

molecular diagnostic tests, thereby 

allowing QIAGEN to increase its 

monthly production of reagent kits by 

7,000 and enzymes by 5,100 milligrams 

by the end of February 2022 to support 

domestic laboratory testing for COVID– 

19 (DOD, August 23, 2021). 

Additionally, manufacturers of raw 

materials and solvents for COVID–19 

test kits have implemented strategies to 

strengthen their portions of the COVID– 

19 test supply chain. Millipore Sigma, a 

large producer of solvents and raw 

materials for tests, has created a global 

task force to actively evaluate the 

overall supply chain of products and 

key raw material suppliers to mitigate 

any potential disruption of COVID–19 

testing capacity (Millipore Sigma, 

October 2021). In light of the foregoing, 

OSHA believes that there is sufficient— 

and increasing—availability of COVID– 

19 testing supplies to enable compliance 

with the ETS testing option. 

e. Sufficiency of Laboratory Capacity 

As noted above, a wide range of tests 

are acceptable under the ETS, including 

those that can be observed by employers 

without laboratory processing. 

Moreover, there has been rapid growth 

in the availability of OTC tests that do 

not require laboratory processing. 

Authorized OTC tests self-administered 

by employees and proctored by the 

employer do not require a CLIA 

certificate of waiver. 

The Association of Public Health 

Laboratories (APHL) has conducted 

weekly surveys of its membership to 

monitor their current and projected 

capability and capacity to test for 

COVID–19. Data from this survey is 

used to inform HHS, FEMA, CDC, and 

other federal partners to support public 

health laboratory supply and reagent 

needs. OSHA reviewed the weekly 

COVID–19 survey results through the 

APHL COVID–19 Lab Testing Capacity 

and Capability Data Dashboard. The 

data comes from voluntary participation 

in the weekly surveys collected from 

approximately 100 state, local and 

territorial public health laboratories 

(PHLs) and reported to the CDC. The 

APHL weekly survey data supports 

OSHA’s feasibility determination and 

demonstrates that COVID–19 testing 

demand will be met. For example, from 

August 15, 2021 to September 12, 2021, 

the APHL weekly survey data found that 

96–100% of PHLs are meeting their 

current testing demand since the Delta 

Variant surge began (APHL, September 

27, 2021). 

Laboratory capacity for processing 

and confirmation of at-home COVID–19 

rapid tests provided by manufacturer 

retailers such as Walmart has also 

increased. Laboratory and diagnostic 

service providers have implemented 

parallel strategies to strengthen 

laboratory capacity for confirmation of 

at-home COVID–19 rapid tests available 

on the market for employers and 

employees to utilize. For example, 

Quest Diagnostics, which is the 

laboratory processing the samples and 

delivering results to those tested at 

Walmart’s drive-through and curbside 

testing sites, has scaled up laboratory 

testing capacity and rapid antigen test 

inventory should demand increase 

(Walmart, July 9, 2021). Quest 

Diagnostics has added COVID–19 

testing platforms in laboratories in 

regions where demand is comparatively 

high and has implemented an online 

consumer-initiated test service for 

individuals and small businesses to 

request COVID–19 testing. In August 

2021, Quest Diagnostics began to offer 

clinician-guided rapid COVID–19 

antigen testing to employers through a 

guided telehealth visit using a selfadministered, nasal swab antigen test 

that provides results in 15 minutes that 

is then shipped to a Quest Diagnostics 

lab for confirmation (Quest Diagnostics, 

September 28, 2021). 

Based on the evidence reviewed, 

OSHA has determined that there is 

adequate laboratory capacity to enable 

compliance with the ETS testing option. 

f. Access to Testing in Underserved 

Communities 

Individuals in underserved 

communities (including Black, Latino, 

and Indigenous and Native American 

persons, Asian Americans and Pacific 

Islanders and other persons of color; 

members of religious minorities; 

lesbian, gay, bisexual, transgender, and 

queer persons; persons with disabilities; 

persons who live in rural areas; and 

persons otherwise adversely affected by 

persistent poverty or inequality) are 

disproportionately burdened by the 

COVID–19 pandemic as many 

individuals in these communities are 

essential workers who cannot work from 

home, increasing their risk of being 

exposed to the virus. Access to COVID– 

19 testing in these communities has 

been identified as contributing factor to 

COVID–19 related health disparities in 

these communities. For example, the 

NSC June 2021 survey found that the 

most common barrier to testing for rural 

employers and workers is access to 

vaccination and testing sites (NSC, 

September 2021). 

Several federal efforts have recently 

been implemented to strengthen testing 

capabilities in underserved 

communities. The NIH has invested 

heavily to improve COVID–19 testing in 

underserved communities throughout 

the COVID–19 pandemic. On September 

30, 2020, the NIH received nearly $234 

million to improve COVID–19 testing 

for underserved and vulnerable 

populations that have been 

disproportionately affected by this 

pandemic and launched the RADx 

Underserved Populations (RADx-UP) 

program (NIH, September 30, 2020). 

The RADx-UP program has primary 

components supported by these NIH 

grants to increase availability, 

accessibility, and acceptance of testing 

among underserved and vulnerable 

populations. The RADx-UP program 

also provides overarching support and 


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guidance on administrative operations 

and logistics, facilitating effective use of 

COVID–19 testing technologies, 

supporting community and health 

system engagement, and providing 

overall infrastructure for data collection, 

integration, and sharing from a 

coordination and data collection center 

(NIH, September 30, 2021). Through the 

RADx-UP program, the NIH has 

continued to support the needs of 

underserved populations and is 

currently funding 70 community-based 

projects across the country (NIH, 

September 30, 2021). 

The CDC has also focused its efforts 

to improve COVID–19 testing in 

underserved communities throughout 

the COVID–19 pandemic. For example, 

on September 20, 2021, Maine Health, 

the largest health care organization in 

Maine and also serving northern New 

Hampshire, was awarded nearly $1 

million for COVID–19 testing in higher 

risk communities (Maine Health, 

September 20, 2021). In March 2021, the 

CDC implemented a plan to invest $2.25 

billion over two years to address 

COVID–19 related health disparities and 

advance health equity among 

populations that are at high-risk and 

underserved, including racial and 

ethnic minority groups and people 

living in rural areas. Since that time, the 

CDC has awarded grants to public 

health departments to improve testing 

capabilities; improve data collection 

and reporting; and build, leverage, and 

expand infrastructure support for testing 

(CDC, March 17, 2021). On September 

30, 2021, the CDC awarded an $8.1 

million grant to the Arizona Center for 

Rural Health (ACRH) to address COVID– 

19 disparities across Arizona by 

improving the delivery of COVID–19 

testing to rural and underserved 

communities (ASU CRH, September 30, 

2021). A number of other federal and 

state government agencies have been 

expanding support for COVID–19 

testing in underserved communities as 

well. On June 11, 2021, HHS through 

the Health Resources and Services 

Administration (HRSA) provided $424.7 

million in American Rescue Plan 

funding to over 4,200 Rural Health 

Clinics (RHCs) for COVID–19 testing 

(HHS, June 11, 2021). 

Private industry has also mobilized 

considerably to increase access and 

testing capacity in rural and other 

underserved communities. The NSC 

June 2021 survey found that a common 

barrier to employers and employees in 

rural and other underserved 

communities is transportation and 

access to vaccination and testing sites 

(NSC, September 2021). In its final 

report, the NSC recommended 

employers in these communities host 

on-site vaccinations to increase worker 

access. Applications for mobile 

vaccination are available on most local 

and state health department websites 

(NSC, September 2021; ASU WEF, 

September 2021). 

CVS has collaborated with several 

organizations, including the National 

Medical Association, to increase access 

to testing in underserved communities 

and has developed mobile solutions that 

allow health care professionals to bring 

testing capabilities to businesses in 

these communities as they re-open (CVS 

Health, September 2021). Walgreens has 

implemented efforts to increase access 

in underserved communities such as 

rural and/or lower socioeconomic 

communities as well, with now more 

than half of Walgreens testing sites 

currently located in areas the CDC has 

identified as socially vulnerable and 

underserved (Walgreens, October 2021). 

Because of these investments, OSHA 

concludes that employers and their 

employees in underserved communities, 

including those in rural areas, will have 

sufficient access to COVID–19 tests and 

will be able to comply with the ETS’s 

testing requirements for employees who 

are not fully vaccinated. 

V. Management of Confidential Medical 

Records, Including Employee COVID–19 

Vaccination and Testing Records 

The ETS requires employers to 

maintain a record of each employee’s 

vaccination status. Employers must also 

maintain a record of each test result 

provided by each employee. These 

records must be maintained as 

confidential medical records and must 

not be disclosed except as required or 

authorized by this ETS or other federal 

law. The records are not subject to the 

retention requirements of 29 CFR 

1910.1020(d)(1)(i) but must be 

maintained and preserved while the 

ETS is in effect. 

Other OSHA rules have a similar 

requirement to maintain employee 

medical records, which could include 

vaccination records. See, e.g., 

Bloodborne Pathogens (29 CFR 

1910.1030), Respiratory Protection (29 

CFR 1910.134), Respirable Crystalline 

Silica (29 CFR 1910.1053), Beryllium 

(29 CFR 1910.1024), Lead (29 CFR 

1910.1025), and OSHA’s requirements 

for employee access to medical and 

exposure records (29 CFR 1910.1020). 

OSHA is not aware of any potential 

technological feasibility issues related to 

recordkeeping. 

The requirement under this ETS to 

maintain records of employees’ COVID– 

19 vaccination status and COVID–19 

test results is similar to requirements in 

the aforementioned OSHA standards, 

and OSHA therefore concludes that 

compliance is feasible. Employers 

subject to the ETS will be able to 

comply with the provisions in the ETS 

using straightforward recordkeeping 

systems that are already widely used by 

large employers as part of their usual 

and customary business practices. 

OSHA concludes that it is feasible for 

such employers to comply with the 

requirements in the ETS for maintaining 

records related to COVID–19 

vaccination status and COVID–19 test 

results. 

VI. Other Provisions 

There are no technological feasibility 

barriers related to compliance with 

other requirements in the ETS (e.g., face 

coverings, employee notification). As 

explained above, many of the employer 

plans and best practice documents 

reviewed by OSHA indicate that 

employers have implemented the 

measures in these provisions across 

industry sectors. OSHA highlights two 

of the ETS’s other requirements below, 

which are explored in more depth in 

other sections of this preamble. 

• Face Coverings. Paragraph (i) of the 

ETS requires the employer to ensure 

that all employees who are not fully 

vaccinated wear a face covering when 

indoors and when occupying a vehicle 

with another person for work purposes, 

except: (i) When an employee is alone 

in a room with floor to ceiling walls and 

a closed door; (ii) for a limited time 

while the employee is eating or drinking 

at the workplace or for identification 

purposes in compliance with safety and 

security requirements; (iii) when 

employees are wearing respirators or 

face masks; or (iv) where the employer 

can show that the use of face coverings 

is infeasible or creates a greater hazard. 

The definition of face covering allows 

various different types of masks, 

including clear face coverings or cloth 

face coverings with a clear plastic panel 

which may be used to facilitate 

communication with people who are 

deaf or hard-of-hearing or others who 

need to see a speaker’s mouth or facial 

expressions to understand speech or 

sign language respectively. The types of 

face coverings permitted under this ETS 

are widely used and readily available. 

The results of the ASU WEF June 2021 

survey found that 30% of employers 

required face coverings for unvaccinated 

employees, which demonstrates that 

this provision of the ETS is currently 

being implemented by a substantial 

number of employers and is ‘‘capable of 

being done.’’ (ASU WEF, September 

2021). OSHA identifies no technological 


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feasibility issues with this provision of 

the ETS. 

• Notification. Paragraph (h) of the 

ETS contains COVID–19 notification 

requirements for both the employer and 

the employee. Under this provision, the 

employer must require each employee 

to promptly notify the employer if they 

receive a positive COVID–19 test or are 

diagnosed with COVID–19 by a licensed 

healthcare provider and must 

immediately remove any employee from 

the workplace who receives a positive 

COVID–19 test or is diagnosed with 

COVID–19 by a licensed healthcare 

provider. OSHA identifies no 

technological feasibility issues in 

connection with the ETS’s notification 

requirements. It is the employer’s 

responsibility to ensure that appropriate 

instructions and procedures are in place 

so that designated representatives of the 

employer (e.g., managers, supervisors) 

and employees conform to the rule’s 

requirements. 

VII. Conclusion 

OSHA has determined that complying 

with this ETS is technologically feasible 

for typical firms covered by this 

standard, at least most of the time (see 

Public Citizen v. OSHA, 557 F.3d 165 

(3d Cir. 2009); Lead I, 647 F.2d at 1272; 

Lead II, 939 F.2d at 990). OSHA 

reviewed extensive evidence across 

industries and did not identify any 

industry-specific compliance barriers. 

Evidence in the record that shows that 

the written workplace COVID–19 

vaccination policy requiring each 

employee to be fully vaccinated against 

COVID–19 unless they establish and 

implement a written policy that permits 

an employee to choose to be tested for 

COVID–19 at least every seven days and 

wear a face covering is feasible. In fact, 

such policies have already been 

implemented by hundreds of large 

companies across industry sectors. 

OSHA has also determined that there 

are sufficient COVID–19 tests available 

and adequate laboratory capacity to 

meet the anticipated increased testing 

demand related to compliance with the 

ETS testing option. 

Additionally, the ETS’s requirements 

to determine employee vaccination 

status, support employee vaccination by 

providing time off for vaccination and 

time off for recovery, and maintain 

records of employee COVID–19 

vaccination status and COVID–19 test 

results are also technologically feasible. 

As discussed above, that many 

employers and organizations have 

already implemented such requirements 

demonstrates that they are ‘‘capable of 

being done.’’ Moreover, the 

recordkeeping requirements in this ETS 

largely mirror the requirements for the 

collection and maintenance of similar 

employee medical records in OSHA’s 

Bloodborne Pathogens standard (29 CFR 

1910.1030) and the Respiratory 

Protection standard (29 CFR 1910.134). 

The ETS provides a flexible compliance 

option for employers to tailor their 

procedures and practices to the needs of 

their workplace. OSHA finds that 

employers in typical firms in all 

industry sectors can comply with the 

requirements of the ETS, and 

compliance with the ETS is therefore 

technologically feasible. 

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2021) 

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October 4). Coronavirus (COVID–19) 

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(FDA, October 4, 2021) 

Food and Drug Administration (FDA). 

(2021a, October 14). In Vitro Diagnostics 

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2021a) 

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(2021b, October 14). In Vitro Diagnostics 

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2021b) 

Fulton County, Georgia. (2021, September 3). 

Fulton Commissioners Approve 

Employee Vaccine Protocols. https://

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03/fulton-commissioners-approveemployee-vaccine-protocols. (Fulton 

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September 29, 2021) 

Health Action Alliance (HAA). (2021, 

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vaccines/covid-19-vaccines-employerrequirements-health-action-alliance. 

(HAA, October 10, 2021) 

Health Action Alliance (HAA) and the 

National Safety Council (NSC). (2021, 

September 17). COVID–19 Employer 

Policies: A Decision Tool for Business 

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September 17, 2021) 

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RADxSM Tech: A New Paradigm for 

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(IEEE, April 28, 2021) 

International Union of Painters and Allied 

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Johns Hopkins University. (2021, October 8). 

Coronavirus Resource Center: Testing 

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individual-states. (JHU, October 8, 2021) 

Kaiser Permanente. (2021, August 2). 

Protecting health and safety through 

vaccination. https://

about.kaiserpermanente.org/our-story/ 

news/announcements/protecting-healthand-safety-through-vaccination. (Kaiser 

Permanente, August 2, 2021) 

MaineHealth. (2021, September 20). 

MaineHealth awarded nearly $1M by 

National Institutes of Health to study 

COVID–19 testing in higher risk 

communities. https://

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MaineHealth-awarded-nearly-1M-byNIH-to-study-COVID19-testing. (Maine 

Health, September 20, 2021) 

Mayo Clinic Laboratories. (2020, June 30). 

Mayo Clinic experts to help guide Delta 

Air Lines COVID–19 safety measures. 

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discussion/delta-engages-mayo-clinicexperts-to-advise-on-making-travel-evensafer/. (Mayo Clinic Laboratories, June 

30, 2020) 

Microbrush. (2020, July 1). Microbrush 

Introduces New Nasopharyngeal Test 

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news-releases/microbrush-introducesnew-nasopharyngeal-test-swabs301087276.html. (Microbrush, July 1, 

2020) 

Millipore Sigma. (2021, October). 

Coronavirus COVID–19 (SARS-CoV–2) 

Detection, Characterization, Vaccine and 

Therapy Production. https://

www.sigmaaldrich.com/US/en/lifescience/covid. (Millipore Sigma, October 

2021) 

National Academy for State Health Policy 

(NASHP). (2021, October 1). State 

Efforts to Ban or Enforce COVID–19 

Vaccine Mandates and Passports. 

https://www.nashp.org/state-lawmakerssubmit-bills-to-ban-employer-vaccinemandates/. (NASHP, October 1, 2021) 

National Institutes of Health (NIH) National 

Institute of Biomedical Imaging and 

Bioengineering (NIBIB). (2021, 

September 28). RADx Tech/ATP 

Dashboard. https://www.nibib.nih.gov/ 

covid-19/radx-tech-program/radx-techdashboard. (NIBIB, September 28, 2021) 

National Institutes of Health (NIH) National 

Institute of Biomedical Imaging and 

Bioengineering (NIBIB). (2021, October 

14). RADxSM Tech and ATP Programs: 

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(NBIB, October14, 2021) 

National Institutes of Health (NIH). (2020, 

October 6). NIH RADx initiative 

advances six new COVID–19 testing 

technologies. https://www.nih.gov/newsevents/news-releases/nih-radx-initiativeadvances-six-new-covid-19-testingtechnologies. (NIH, October 6, 2020) 

National Institutes of Health (NIH). (2020, 

September 30). NIH to assess and expand 

COVID–19 testing for underserved 

communities. https://www.nih.gov/newsevents/news-releases/nih-assess-expandcovid-19-testing-underservedcommunities. (NIH, September 30, 2020) 

National Institutes of Health (NIH). (2020, 

April 29). NIH mobilizes national 

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diagnostics. https://www.nih.gov/newsevents/news-releases/nih-mobilizesnational-innovation-initiative-covid-19- 

diagnostics. (NIH, April 29, 2020) 

National Safety Council (NSC). (2021, May 

17). SAFER: Safe Actions For Employee 

Returns. https://www.nsc.org/getmedia/ 

f5dfd05d-83bf-4753-8903- 

538a24157725/safer-frameworksummary.pdf. (NSC, May 17, 2021) 

National Safety Council (NSC). (2021, 

September). SAFER Report: A Year in 

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safer/state-of-the-response-state-actionsto-address-the. (NSC, September 2021) 

Puritan Products. (2020, April 20). Puritan 

Blog: Puritan at the Epicenter of COVID– 

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Products, April 20, 2020) 

Qiagen. (2021, October 2). COVID–19 Latest 

News. https://www.qiagen.com/us/ 

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October 2, 2021) 

Quest Diagnostics. (2021, September 28). 

Quest Diagnostics Media Statement 

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newsroom.questdiagnostics.com/ 

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Quidel Corporation. (2020, July 31). Press 

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2020/Quidel-Receives-PreliminaryContract-Leading-to-DefinitiveAgreement-for-71-Million-Under-NIHsRADx-ATP-Program-to-Accelerate-theExpansion-of-Its-ManufacturingCapacity-for-Sofia-SARS-CoV-2-AntigenDetection-Test-for-Rapid-Diagnosis-ofCOVID-19/default.aspx. (Quidel Corp., 

July 31, 2020) 

RiteAid. (2021, October). Free* COVID–19 

Testing. https://www.riteaid.com/ 

pharmacy/services/covid-19-testing. 

(RiteAid, October 2021) 

Sanford Health. (2021, July 22). Sanford 

Health to require COVID–19 vaccine for 

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sanford-to-require-covid-19-vaccine-foremployees/. (Sanford Health, July 22, 

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requirement-for-all-colleagues. (Trinity 

Health, July 8, 2021) 

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to Require COVID–19 Vaccinations for 

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(Tyson Foods, August 3, 2021) 

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(ASU CRH). (2021, September 30). 

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September 30, 2021) 

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March 29) DOD Awards $146.77 Million 

Contract to Puritan Medical Products to 

Increase Domestic Production Capacity 

of Foam Tip Swabs. https://

www.defense.gov/News/Releases/ 

Release/Article/2554073/dod-awards14677-million-contract-to-puritanmedical-products-to-increase-domes/. 

(DOD, March 29, 2021) 

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July 31). DOD Awards $51.15 Million 

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(DOD, July 31, 2021) 

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August 23). DOD Awards $0.6 Million 

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News/Releases/Release/Article/2742967/ 

dod-awards-06-million-contract-toqiagen-to-increase-domestic-productioncapaci/. (DOD, August 23, 2021) 

U.S. Department of Defense (DOD). (2021, 

December 21). DOD Awards $4.8 Million 

Indefinite Delivery/Indefinite Quantity 

to a Calibre Scientific Subsidiary, 

Anatrace, to Increase Domestic 

Production Capacity of COVID–19 

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December 21, 2020) 

U.S. Department of Health and Human 

Services. (HHS). (2021, June 11). HHS 

Provides $424.7 Million to Rural Health 

Clinics for COVID–19 Testing and 

Mitigation in Rural Communities. 

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06/11/hhs-provides-424-million-to-ruralhealth-clinics-for-covid-19-testing.html. 

(HHS, June 11, 2021) 

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testing?ban=covid_hp_cause2. 

(Walgreens, October 2021) 

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faq.htm#testinghome. (Walgreens, 

October 8, 2021) 

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19 Testing. https://

corporate.walmart.com/covid19testing. 

(Walmart, July 9, 2021) 

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10/06/biden-rapid-at-home-covid-tests/. 

(Washington Post, October 6, 2021) 

Willis Towers Watson. (2021, June 23) 

COVID–19 Vaccination and Reopening 

the Workplace Survey press release. 

https://www.willistowerswatson.com/enUS/News/2021/09/workplace-vaccinemandates-expected-to-accelerate-wtwsurvey-finds. (Willis Towers Watson, 

June 23, 2021) 

Willis Towers Watson. (2021, September 1) 

Workplace vaccine mandates expected to 

accelerate, Willis Towers Watson survey 

finds. https://

www.willistowerswatson.com/en-US/ 

News/2021/09/workplace-vaccinemandates-expected-to-accelerate-wtwsurvey-finds. (Willis Towers Watson, 

September 1, 2021) 

B. Economic Analysis 

I. Introduction 

This section presents OSHA’s 

estimates of the costs and impacts, 

anticipated to result from the COVID–19 

Vaccination and Testing ETS, 29 CFR 

1910.501. The purpose of this ETS is to 

address the grave danger of COVID–19 

in the workplace by promoting 

vaccination, while allowing an 

alternative for face covering and testing 

requirements, and also to remove 

COVID–19 positive workers from the 

workplace regardless of vaccination 

status. The estimated costs are based on 

employers achieving full compliance 

with the requirements of the ETS. They 

do not include prior costs associated 

with firms whose current practices are 

already in compliance with the ETS 

requirements. The purpose of this 

analysis is to: 

• Identify the entities/establishments 

and industries affected by the ETS; 

• Estimate and evaluate the costs and 

economic impacts that regulated 

entities/establishments will incur to 

achieve compliance with the ETS; and 

• Evaluate the economic feasibility of 

the rule for affected industries. 

In this analysis, OSHA is fulfilling the 

requirement under the OSH Act to show 

the economic feasibility of this ETS. 

This analysis is different from the cost 

portion of a regulatory impact analysis 

prepared in accordance with Executive 

Order 12866 in that the agency is 

focused only on costs to employers 

when evaluating economic feasibility. In 

a regulatory impact analysis, the costs to 

all parties (e.g., employers, employees, 

and governments) are included. While 

this is not the case for an economic 

feasibility analysis, it does not 

necessarily mean that the ETS imposes 

no costs or burdens on parties other 

than employers. For example, the rule 

imposes certain costs on employees who 

choose not to become vaccinated (e.g., 

for face coverings and testing. While 

these costs are not relevant for the 

purpose of establishing economic 

feasibility, these costs would be 

attributable to the ETS in a regulatory 

impact analysis. In addition, these costs 

are not mandatory because any 

employee who does not wish to pay 

them may choose to become vaccinated 

or leave employment (see discussion 

below on turnover), after which the 

costs would not be incurred. Some 

employees may also be entitled to a 

reasonable accommodation that may 

avoid additional cost (e.g., telework). 

‘‘[T]he Supreme Court has 

conclusively ruled that economic 

feasibility [under the OSH Act] does not 

involve a cost-benefit analysis.’’ Pub. 

Citizen Health Research Grp. v. U.S. 

Dept. of Labor, 557 F.3d 165, 177 (3d 

Cir. 2009); see also Asbestos Info. Ass’n, 

727 F.2d at 424 n.18 (noting that formal 

cost benefit is not required for an ETS, 

and indeed may be impossible in an 

emergency). The OSH Act ‘‘place[s] the 

‘benefit’ of worker health above all other 

considerations save those making 

attainment of this ‘benefit’ 

unachievable.’’ Cotton Dust, 452 U.S. at 

509. Therefore, ‘‘[a]ny standard based 

on a balancing of costs and benefits by 

the Secretary that strikes a different 

balance than that struck by Congress 

would be inconsistent with the 

command set forth in’’ the statute. Id. 

While this case law arose with respect 

to health standards issued under section 

6(b)(5) of the Act, which specifically 

require feasibility, OSHA finds the same 

concerns applicable to emergency 

temporary standards issued under 

section 6(c) of the Act. An ETS ‘‘serve[s] 

as a proposed rule’’ for a section 6(b)(5) 

standard, and therefore the same limits 

on any requirement for cost-benefit 

analysis should apply. Indeed, OSHA 

has also rejected the use of formal cost 

benefit analysis for safety standards, 

which are not governed by section 

6(b)(5). See 58 FR 16,612, 16,622–23 

(Mar. 30, 1993) (‘‘in OSHA’s judgment, 

its statutory mandate to achieve safe and 

healthful workplaces for the nation’s 

employees limits the role monetization 

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22To support its Asbestos ETS, OSHA conducted 

an economic feasibility analysis on these terms. 48 

FR 51086, 51136–38 (Nov. 4, 1983). In upholding 

that analysis, the Fifth Circuit said that OSHA was 

required to show that the balance of costs to 

benefits was not unreasonable. Asbestos Info. Ass’n, 

727 F.2d at 423. As explained above, OSHA does 

not believe that is a correct statement of the 

economic feasibility test. However, even under that 

approach this ETS easily passes muster. 

workplace effects can play in setting 

safety standards.’’).22 A standard must 

be economically feasible in order to be 

‘‘reasonably necessary and appropriate’’ 

under section 3(8) and, by inference, 

‘‘necessary’’ under section 6(c)(1)(B) of 

the OSH Act. Cf. Am. Textile Mfrs. Inst., 

Inc. v. Donovan, 452 U.S. 490, 513 n.31 

(1981) (noting ‘‘any standard that was 

not economically . . . feasible would a 

fortiori not be ‘reasonably necessary or 

appropriate’ ’’ as required by the OSH 

Act’s definition of ‘‘occupational safety 

and health standard’’ in section 3(8)); 

see also Florida Peach Growers, 489 

F.2d at 130 (recognizing that the 

promulgation of any standard, including 

an ETS, must account for its economic 

effect). A standard is economically 

feasible when industries can absorb or 

pass on the costs of compliance without 

threatening industry’s long-term 

profitability or competitive structure, 

Cotton Dust, 452 U.S. at 530 n.55, or 

‘‘threaten[ing] massive dislocation to, or 

imperil[ing] the existence of, the 

industry.’’ United Steelworkers of Am. 

v. Marshall, 647 F.2d 1189, 1272 (D.C. 

Cir. 1981) (Lead I). Given that section 

6(c) is aimed at enabling OSHA to 

protect workers in emergency situations, 

the agency is not required to make the 

showing with the same rigor as in 

ordinary section 6(b) rulemaking. 

Asbestos Info. Ass’n/N. Am. v. OSHA, 

727 F.2d 415, 424 n.18 (5th Cir. 1984). 

In Asbestos Information Association, the 

Fifth Circuit concluded that the costs of 

compliance were not unreasonable to 

address a grave danger where the costs 

of the ETS did not exceed 7.2% of 

revenues in any affected industry. Id. at 

424. 

The scope of judicial review of 

OSHA’s determinations regarding 

feasibility (both technological and 

economic) ‘‘is narrowly circumscribed.’’ 

N. Am.’s Bldg. Trades Unions v. OSHA, 

878 F.3d 271, 296 (D.C. Cir. 2017) 

(Silica). ‘‘OSHA is not required to prove 

economic feasibility with certainty, but 

is required to use the best available 

evidence and to support its conclusions 

with substantial evidence.’’ Amer. Iron 

& Steel Inst. v. OSHA, 939 F.2d 975, 

980–81 (D.C. Cir. 1991) (Lead II); 29 

U.S.C. 655(b)(5), (f). ‘‘Courts, 

[moreover], ‘cannot expect hard and 

precise estimates of costs.’ ’’ Silica, 878 

F.3d at 296 (quoting Lead II, 939 F.2d 

at 1006). Rather, OSHA’s estimates must 

represent ‘‘a reasonable assessment of 

the likely range of costs of its standard, 

and the likely effects of those costs on 

the industry.’’ Lead I, 647 F.2d at 1266. 

The ‘‘mere ‘possibility of drawing two 

inconsistent conclusions from the 

evidence,’ or deriving two divergent 

cost models from the data ‘does not 

prevent [the] agency’s finding from 

being supported by substantial 

evidence.’ ’’ Silica, 878 F.3d at 296 

(quoting Cotton Dust, 452 U.S. at 523). 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of the intended regulation and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, and public 

health and safety effects; distributive 

impacts; and equity). Executive Order 

13563 emphasized the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. Because of 

the continued impact of the pandemic 

on occupational safety and health, 

OSHA has prepared this ETS and the 

accompanying economic analysis on an 

extremely condensed timeline. Thus, in 

light of the Secretary’s conclusion that 

the COVID–19 pandemic constitutes an 

emergency situation, the Secretary has 

notified OIRA that it is necessary for 

OSHA to promulgate this regulation 

more quickly than normal review 

procedures allow, pursuant to E.O. 

12866 Sec. 6 (a)(3)(D). OIRA has waived 

compliance with Sec. 6(a)(3)(B) and (C) 

for this economically significant rule. 

II. COVID–19 ETS Industry Profile 

a. Introduction 

In this section, OSHA provides 

estimates of the number of affected 

entities, establishments, and employees 

for the industries that have settings 

covered by this ETS. The term ‘‘entity’’ 

describes a legal for-profit business, a 

non-profit organization, or a local 

governmental unit, whereas the term 

‘‘establishment’’ describes a particular 

physical site of economic activity. Some 

entities own and operate more than one 

establishment. 

Throughout this analysis, where 

estimates were derived from available 

data those sources have been noted in 

the text. Estimates without sources 

noted in the text are based on agency 

expertise. 

b. Scope of the COVID–19 ETS 

This ETS applies to all employers 

with a total of 100 or more employees 

at any time this ETS is in effect. 

However, the requirements of this ETS 

do not apply to: (1) Workplaces covered 

under the Safer Federal Workforce Task 

Force COVID–19 Workplace Safety: 

Guidance for Federal Contractors and 

Subcontractors (Contractor Guidance); 

or (2) settings where any employee 

provides healthcare services or 

healthcare support services when 

subject to the requirements of 29 CFR 

1910.502 (i.e., the Healthcare ETS). 

Furthermore, the requirements of this 

ETS do not apply to the employees of 

covered employers: (1) Who do not 

report to a workplace where other 

individuals, such as coworkers or 

customers, are present; or (2) while 

working from home; or (3) who work 

exclusively outdoors. Based on this 

scope, employers in nearly every sector 

are expected to be covered by this ETS. 

OSHA’s assumptions may result in an 

overestimate of the number of 

employees affected by the ETS. First, 

OSHA is not estimating the number and 

type of workplaces covered by the Safer 

Federal Workforce Task Force COVID– 

19 Workplace Safety: Guidance for 

Federal Contractors and Subcontractors 

or removing them from the profile of 

employers affected by this ETS. OSHA 

assumes for the purpose of this analysis 

that employers covered under the 

Contractor Guidance will also have 

contracts to perform work in workplaces 

where they are not covered under that 

Guidance (i.e., where the employer 

contracts with an entity other than the 

federal government), and so those 

employers are included in the scope 

here. 

Second, OSHA estimates that all 

employers in all private sector 

industries are affected by this ETS to 

some extent. Although this ETS imposes 

no compliance burden on employers 

whose employees work remotely 100 

percent of the time, in OSHA’s analysis, 

no employers with 100 or more 

employees have all of their employees 

working remotely 100 percent of the 

time (i.e., at least some employees in 

each affected firm do not work 

remotely). Moreover, OSHA’s analysis 

does not take into account that some 

employees may engage in part-time 

telework (i.e., it assumes that employees 

either work remotely full-time or do not 

work remotely at all). Finally, OSHA’s 

analysis does not fully take into account 

the exemption for employees who do 

not report to a workplace where other 

individuals are present, meaning that 

this analysis may overestimate the 

number of employees affected by the 

rule. 

As stated, the requirements of this 

ETS do not apply to the employees of 

covered employers who work 


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exclusively outdoors. To determine the 

percentage of employees in occupations 

for which the exception is relevant, the 

agency uses data from the BLS’s 2020 

Occupational Requirements Survey 

(ORS) (BLS, 2020). This survey looks at 

various aspects of job requirements. In 

particular, the survey lists occupations 

where workers are outdoors 

‘‘constantly,’’ which OSHA interprets as 

being nearly continuously outdoors. 

Because the majority of workers who 

work outdoors ‘‘constantly’’ likely work 

indoors at least some of the time, the 

agency judges that no more than 10 

percent of the workers who are 

primarily outdoors are actually there 

exclusively. See Table IV.B.1 for the 

occupations, the ORS percentages, and 

final percentages for workers OSHA 

estimates are exempt from the scope of 

this ETS based on the outdoor work 

exemption. 

OSHA’s estimate of employees who 

work exclusively outdoors does not 

account for employers who only need to 

make slight adjustments to their current 

work practices to ensure that their 

employees qualify for the outdoor 

exemption, such as by holding tool box 

talks outdoors instead of in a traditional 

indoor location. This may result in more 

employees falling within the exemption 

than estimated by OSHA; therefore, 

OSHA’s cost analysis likely 

overestimates costs. 

The requirements of the ETS also do 

not apply to settings where any 

employee provides healthcare services 

or healthcare support services when 

subject to the requirements of 29 CFR 

1910.502 (the Healthcare ETS). The 

Healthcare ETS is a temporary standard 

that may not remain in effect for the 

entire period that 29 CFR 1910.501 

remains in effect. This means that some 

employers or employees covered by the 

Healthcare ETS, those in firms that have 

100 or more employees, may ultimately 

be covered by 29 CFR 1910.501 (because 

the exception in 29 CFR 1910.501 is 

limited to when employers are subject 

to the requirements of the Healthcare 

ETS). This potentially impacts two 

types of costs: Employer-based costs 

(e.g., employer policy on vaccination) 

and employee-based (periodic) costs 

(e.g., recordkeeping). 

Employer-Based Costs: For the 

purpose of the economic analysis only, 

OSHA treats the Healthcare ETS as 

though it will no longer be in effect after 

December, 2021, because at that point 

the Healthcare ETS will have been in 

effect for the six months that OSHA had 

calculated costs for that ETS. Therefore, 

OSHA estimates that some employers 

including those with 100 or more 

employees subject to the 29 CFR 

1910.502 exemption, will need to take 

employer-based costs because all these 

employers will ultimately be subject to 

29 CFR 1910.501 under this assumption. 

Employee-Based Costs: OSHA’s 

estimates incorporate two assumptions 

for the purposes of this analysis only. 

First, for the purposes of assumptions 

for this analysis only, § 1910.501 will 

remain in effect for 6 months. Second, 

many employers and employees 

currently covered only by the 

Healthcare ETS will be subject to the 

requirements of 29 CFR 1910.501 for 

approximately 4 months (4 months of 

the 6 month estimated lifespan of 29 

CFR 1910.501). OSHA’s estimate of 

those employees exempted by the 

Healthcare ETS was based on the 

Industry Profile of employees in firms 

with 100 employees or more covered by 

the Healthcare ETS, as estimated in 

Table VI.B.3 in the economic analysis 

for that rulemaking (see 86 FR 32488). 

OSHA notes that some employees 

currently covered by the Healthcare ETS 

might also be currently covered by 29 

CFR 1910.501 (albeit at different times 

or in different locations) because the 

Healthcare ETS is settings-based. For 

example, a pharmacist would normally 

not need to comply with the 

requirements of § 1910.502 when just 

filling prescriptions in a retail pharmacy 

store (see 29 CFR 1910.502(a)(2)(ii)), but 

would need to comply when 

administering vaccinations within an 

embedded clinic inside that retail 

pharmacy. Thus, there are a number of 

variables that could impact the extent to 

which the pharmacist’s employer might 


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23The CMS rule published elsewhere in this issue 

of the Federal Register mandates vaccination for 

employees in facilities that receive Medicare or 

Medicaid. OSHA is ignoring this for the purpose of 

its cost analysis and taking costs into account as if 

the CMS rule were not promulgated. This creates 

a substantial overestimate. 

incur any costs. However, even to the 

extent that such costs might occur (e.g., 

recordkeeping for testing if the 

pharmacist works for an employer 

covered by 29 CFR 1910.501 and is 

unvaccinated), OSHA judges that they 

would be de minimis for several 

reasons. First, this pool of workers is 

likely to be very small, especially when 

compared to the population of workers 

covered by the Healthcare ETS. Second, 

most employees subject to both 

standards will have been fully 

vaccinated before OSHA takes costs for 

these employees under 29 CFR 1910.501 

by operation of the CMS rule mandating 

vaccination or as a result of the 

voluntary vaccination incentives 

promoted by OSHA’s Healthcare ETS 

(therefore negating most of the costs 

associated with vaccination and testing 

under 29 CFR 1910.501). Third, any 

underestimate of periodic costs will 

only apply during the first two months 

after 29 CFR 1910.501 goes into effect 

and the standard has a delayed 

compliance date of 30 days after the 

effective date for most provisions, 

except for testing, which has a delayed 

compliance date of 60 days. This will 

further lessen the periodic costs 

associated with any potential 

underestimate. 

In all respects (other than the 4⁄6 share 

of employee-based costs), OSHA is 

taking the same approach in the 

Industry Profile and Cost Estimates for 

employers and employees currently 

covered by the Healthcare ETS as it does 

for all other industries. These employers 

and employees are fully integrated into 

Table IV.B.5, below, which contains a 

summary of covered entities and 

employees. Moreover, the same 

assumptions on outdoor work and other 

scope exemptions that OSHA explains 

earlier holds for these employers and 

employees. In addition, OSHA makes 

the same downward adjustment in 

telework for these employers and 

employees in accordance with the 

methodology it sets out below. Thus, the 

Healthcare ETS profile used in this ETS 

to account for employees exempted by 

the Healthcare ETS into the Profile in 

the event the Healthcare ETS expires 

(i.e., in Table IV.B.5, below) is an 

updated version of Table VI.B.3 in the 

Healthcare ETS (see 86 FR 32488).23

OSHA notes that some firms may decide 

to proactively comply with certain 29 

CFR 1910.501 requirements (such as 

mandating vaccination for all employees 

that were removed from the Industry 

Profile) before the end date of the 

Healthcare ETS based on the conclusion 

that 29 CFR 1910.501 will ultimately 

apply in full to them. Since these costs 

still occur due to 29 CFR 1910.501, 

OSHA is appropriately including them 

in this cost analysis. 

There are 9.9 million employees who 

will newly be covered by 29 CFR 

1910.501 starting in December whose 

employers will incur an additional $318 

million in costs. These costs are 

integrated into the agency’s main cost 

analysis, which is described later in this 

economic analysis. 

Only some state- and localgovernment entities are included in this 

analysis. State- and local-government 

entities are specifically excluded from 

coverage under the OSH Act (29 U.S.C. 

652(5)). Workers employed by these 

entities only have OSH Act protections 

if they work in states that have an 

OSHA-approved State Plan. (29 U.S.C. 

667). Consequently, this analysis 

excludes public entities in states that do 

not have OSHA-approved State Plans. 

Table IV.B.2 presents the states that 

have OSHA-approved State Plans and 

their public entities are included in the 

analysis. 

OSHA notes, finally, that the 

percentage of employers mandating 

vaccination, and hence the employee 

vaccination rate, would likely rise to 

some degree absent this ETS due to 

other federal actions, such as the 

vaccination mandate for federal 

contractors, the CMS rule published 

elsewhere in this issue of the Federal 

Register, and as a result of vaccination 

mandates that have been adopted at 

state and local levels. This analysis does 

not account for increases in vaccination 

that would occur absent the standard, 

resulting in a likely overestimate of the 

costs. 

c. Teleworking 

Dingel-Neiman Approach for Estimating 

Who Can Work Remotely 

OSHA uses the estimates in a paper 

by J.I. Dingel and B. Neiman, ‘‘How 

Many Jobs Can be Done at Home?,’’ 

published in July 2020, as a starting 

point to determine the percentage of 

employees, by occupation, who are not 

expected to work remotely (i.e., the 

percentage of workers for whom 

employers have employee-based costs 

under this ETS) (Dingel and Neiman, 

July 2020). 

In Dingel and Neiman’s paper, the 

authors estimate the number of jobs in 

the U.S. economy that workers can 

feasibly perform remotely. The authors 

use two different surveys from the 


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24 24 The O*Net Program is a major source of 

occupational information for the U.S. The O*NET 

database surveys ask both specific occupational 

experts and workers in those occupations questions 

covering multiple aspects of almost 1,000 

occupations covering the entire U.S. economy. See 

https://www.onetonline.org/ for more information. 

The occupation definitions in the O*NET data are 

Standard Occupation Codes—the same definitions 

that are used in the BLS OEWS data. Dingel and 

Neiman use the responses to two surveys included 

in release 24.2 of the database administered by 

O*NET, the Worker Context Questionnaire and the 

Generalized Work Activities Questionnaire. The 

occupation with the median number of respondents 

had 26 respondents for each work context question 

and 25 respondents for each generalized work 

activities question per detailed-level SOC 

occupation code. 

In the O*Net Questionnaires, survey respondents 

responded to statements about the nature and 

requirements of the daily tasks associated with their 

job on a 1–5 ordinal scale, where 5 represents the 

strongest agreement and 1 represents the strongest 

disagreement (see Table IV.B.3). The O*Net data 

contain the average response to each question for 

each occupation code. For instance, for occupation 

‘‘Chief Executives’’ (SOC 11–1011), the average 

response to the prompt ‘‘Performing General 

Physical Activities is very important’’ was 1.39, 

indicating that performing general physical activity 

is not, on average, critical to the work of chief 

executives. The average responses by occupation for 

other prompts in the relevant surveys utilized by 

Dingel and Neiman are contained in those surveys. 

Occupational Information Network 

(O*Net) 24 to evaluate which 

occupations can be performed remotely 

and combine the O*Net estimates with 

the Bureau of Labor Statistics’ (BLS) 

Occupational Employment and Wage 

Statistics (OEWS) data on employment 

by occupation to estimate the total 

number of workers nationally who can 

work remotely. 

To evaluate the survey responses, 

Dingel and Neiman first determined the 

occupations for which the average 

response to a given prompt met a preset 

threshold. Table IV.B.3 presents the 

Dingel and Neiman response threshold 

for each survey question as well as the 

percent of occupations that meet each 

respective predetermined threshold. For 

example, in 10.8 percent of occupations, 

the average response to the ‘‘Performing 

general physical activities’’ (4.A.3.a.1) 

question met the threshold, falling in 

the range of 4 to 5. 

Dingel and Neiman determined that 

employees in a given occupation can 

telework full time if they did not meet 

the predetermined threshold for any of 

the questions highlighted in grey and 

denoted with a ‘‘Yes’’ in the column 

that reports whether that activity is used 

in determining whether a job can be 

done remotely in Table IV.B.3. 


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Source: (Dingel and Neiman, July 2020). 


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25Except for the adjustments to Dingel and 

Neiman discussed above, OSHA used the Dingel 

and Neiman estimates for telework by occupation 

without change. The agency recognizes that the 

authors’ methodology (i.e., the use of 0–1 

thresholds) led to a small number of results that 

may appear not to reflect real-world experiences 

within an occupation. However, Dingel and Neiman 

represents the best available evidence for 

determining the percentage of employees, by 

occupation, who are expected to work remotely. 

OSHA is aware of no other source for this 

information that contains the level of detail 

necessary to conduct this analysis. Moreover, as 

explained above, OSHA modified the results for 

individual occupations when it had a reasoned 

basis for doing so. In any event, every NAICS 

industry is comprised of many occupations, so for 

every occupation where OSHA suspects remote 

work is overestimated in Dingel and Neiman’s 

results, there may be another where remote work is 

underestimated. 

26The CPS data were available only at the 2-digit 

NAICS level as shown in Table IV.B.4. 

Adjusting Dingel and Neiman To Reflect 

Current Conditions 

While many employees can and are 

working remotely, many have returned 

to their places of employment. This 

conclusion is borne out by BLS’s 

Current Population Survey (CPS) (BLS, 

2021c). To address the tendency toward 

employees returning to work on site and 

more accurately reflect current remote 

work conditions, OSHA made two 

adjustments to Dingel and Neiman’s 

estimates. In the COVID–19 Healthcare 

ETS, OSHA also used Dingel and 

Neiman’s paper to estimate the number 

of workers who teleworked in response 

to the pandemic and the ETS under the 

assumption that anyone who could 

work remotely would do so in response 

to the pandemic and the Healthcare 

ETS. Dingel and Neiman’s estimates are 

therefore framed as the upper-bound of 

potential teleworking. 

The adjustments OSHA made reflect 

changing circumstances. First, based on 

agency expertise, OSHA changed the 

status of certain occupations in its 

occupational list from working remotely 

to not working remotely. For example, 

when Dingel and Neiman published 

their study, many schools were 

operating virtually so the Dingel and 

Neiman finding that teachers were able 

to work remotely lined up with the 

situation where teachers were working 

remotely. At this point in the pandemic, 

on the other hand, in-person learning 

has mostly recommenced. To this end, 

OSHA changed the status of teachers 

and other employees in the education 

sector from working remotely to not 

working remotely in this analysis. As 

another example, many activities that 

ceased or were reduced significantly 

have now resumed and many locations 

that were closed to the public have 

reopened (e.g., athletic events, shows, 

gyms, casinos and places of worship), 

and, since more people have returned to 

the office, there is more need for 

childcare. Therefore, OSHA also 

changed the status of these employees 

and others from telework to nontelework. This has the ultimate effect of 

increasing costs estimates for the rule. 

Appendix A (Table A–1), in the 

accompanying document in the docket, 

‘‘Vaccination, and Testing ETS: 

Economic Profile and Cost Chapter 

Appendices’’ (OSHA, October 2021b), 

presents Dingel and Neiman’s (July 

2020) unmodified percentages of 

workers that can work remotely in each 

detailed occupation (based on BLS’s 

Standard Occupation Code (SOC)).25

Appendix A also presents, in separate 

columns, percentages reflecting the 

modifications OSHA made in those 

occupations where OSHA changed the 

results from telework to non-telework 

for the reasons stated, as well as 

percentages reflecting the modifications 

made in occupations where employees 

work exclusively outdoors. 

According to the OSHA-adjusted 

Dingel and Neiman estimates, 14 

percent of the jobs in the United States 

are performed entirely at home, with 

significant variation across cities and 

industries. It should be noted that the 

Dingel and Neiman analysis does not 

specify a proportion of jobs that can be 

performed at home part of the time; 

under the analysis, employees are either 

working remotely full-time or are 

working on site full time. 

The second adjustment OSHA made 

used monthly COVID-specific 

teleworking data from telework 

questions added during the pandemic to 

the CPS to estimate the reduction in 

teleworking since its peak and applied 

those estimates to further adjust 

downward the number of workers 

currently teleworking (BLS, 2021c). 

Specifically, the CPS questions asked 

respondents whether they were 

teleworking due to COVID–19 (as 

opposed to teleworking for other 

reasons) and OSHA estimated the 

difference in teleworking from the peak 

of COVID-related teleworking in all 

industries, which occurred in May 2020, 

through August 2021 (see Table 

IV.B.4).26 The reduction in teleworking 

was then applied as the change in 

percentage points to the estimated 

overall level of employees covered by 

the ETS in each NAICS code estimated 

based on data from Dingel and Neiman 

(July 2020). OSHA’s final teleworking 

estimates are provided in Appendix B in 

the accompanying document in the 

docket, ‘‘Vaccination, and Testing ETS: 

Economic Profile and Cost Chapter 

Appendices’’ (OSHA, October 2021b). 

Reductions due to employees working 

exclusively outdoors were applied to 

reduce the percentage of covered 

employees in Appendix B as well. 


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Other Teleworking Literature 

A number of companies have 

announced plans to allow employees to 

work from home at least through the 

end of 2021—suggesting that the levels 

of remote work will not be returning to 

pre pandemic levels in the near future. 

Many technology and internet based 

companies, such as Dropbox, Coinbase, 

VMWare, and Slack, have announced a 

complete, permanent move to fully 

remote work (Courtney, September 27, 

2021). Large employers such as 

Facebook, Amazon, and Siemens plan to 

maintain some physical workspace but 

now offer their employees who are 

telework eligible the option to work 

from home at least part of the time on 

a permanent basis (Id.). Google, Ford, 

Amazon, Apple and other large 

employers are expecting their telework 

eligible workers to return to on-site 

work (in some capacity) no earlier than 

January 2022 with Lyft anticipating a 

February 2022 return (Cerullo, August 

31, 2021). As a final example, a survey 

of businesses in Massachusetts found 

that about 40 percent of teleworkers 

anticipate they will not be returning to 

the office in January 2022 or earlier 

(Chesto, June 22, 2021). 

Additional studies provide qualitative 

support for the conclusion that a range 

of employees will ‘‘predictably’’ work 

from home both during the pandemic 

and beyond. In Bick, Blandin, and 

Martens’s paper, ‘‘Work from Home 

Before and After the COVID–19 

Outbreak’’ the authors use the following 

information to establish the physical 

location of employment (home or 

workplace) of workers: Data from the 

Real-Time Population Survey (RPS), a 


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27SUSB with revenue data is only collected every 

5 years. While OSHA could attempt to extrapolate 

these data to more recent years, the results would 

be imprecise because they would change the 

revenue-employee size distributions. Those 

distributions are crucial for measuring impacts so 

the agency has opted to use the data as is. The total 

number of employees in OSHA’s estimate is fairly 

close to that of SUSB. The 2017 SUSB data includes 

a total of 128.6 million employees, while the more 

recent 2018 SUSB data includes a total of 130.9 

million. 

28This includes public entities only in states with 

an approved OSHA State Plan. See Table IV.B.2 

above for further discussion of state plans. 

29OSHA’s estimate of covered employees is based 

on the discussion in the text. For example, as OSHA 

writes above: OSHA assumes for the purpose of its 

analysis that employers covered under the 

Contractor Guidance will conduct work at least 

some of the time in workplaces not covered under 

that Guidance and so are fully integrated into the 

scope of the ETS; and the employers and employees 

covered by the Healthcare ETS are also fully 

integrated into the scope of the ETS. 

30Conditions are changing rapidly, and though 

many firms are planning to keep expanded telework 

to some extent, as the rate of vaccinated workers 

increases, there may be increased movement back 

to the workplace beyond what OSHA has estimated 

here. 

national labor market survey of adults 

between ages 18–64 that mirrors the 

Current Population Survey (CPS) and 

collects information used in pandemic 

analysis, such as commuting behavior 

before and after the World Health 

Organization declared a global 

pandemic; mobility data on commuting; 

and information from the CPS since 

May 2020 on ‘pandemic-related’ 

telework (Bick et al., February 2021). 

Based on these data, Bick et al., found 

that there was a sudden decline in 

commuting trips in the U.S. after the 

initial COVID–19 outbreak, and that 

even when these trips subsequently 

began increasing back toward the 

original number of commuting trips, the 

overall number of trips did not return to 

normal at the end of 2020 because many 

teleworking employees continued 

working from home. The authors found 

that the surge in work from home came 

almost entirely from employees working 

from home every workday in the 

reference week. The authors also suggest 

that, for some occupations, especially 

those occupations with more educated 

workers, the change to increased work 

from home appears to be a long-term 

change; the data showed that, as of 

December 2020, 12.5 percent of these 

workers reported they expect to be 

working from home full-time in the 

future, and 24.5 percent reported they 

expect to be working from home parttime. 

In ‘‘COVID–19 and Remote Work: An 

Early Look At U.S. Data,’’ Brynjolfsson 

et al., noted that some of the shift to 

working from home seems to be a longterm phenomenon (Brynjolfsson et al., 

June 2020). The authors found, using an 

online survey, that 35.2 percent of 

workers had switched to working from 

home. Additionally, 15 percent of 

workers reported they were already 

working from home before COVID–19. 

Therefore, this study finds that about 

half of workers are now working from 

home—an even greater percentage than 

estimated by Dingel and Neiman. 

Finally, in ‘‘Why Working from Home 

Will Stick,’’ Barrero et al. predict that 22 

percent of all full workdays will be 

performed from home after the 

pandemic ends, compared to 5 percent 

before (Barrero et al., April 2021). The 

authors highlight five factors 

contributing towards the more 

permanent shift to telework: Diminished 

stigma, better-than-expected 

experiences working from home, 

investments in physical and human 

capital enabling work from home, 

reluctance to return to pre-pandemic 

activities, and innovation supporting 

work from home. 

d. Affected Entities and Employees 

OSHA used data from the U.S. 

Census’ 2017 Statistics of U.S. 

Businesses (SUSB) to identify private 

sector entities and employees affected 

by this section of the ETS (U.S. Census 

Bureau, 2019), and used the BLS 2017 

Quarterly Census of Employment and 

Wages (QCEW) to characterize state and 

local government entities (BLS, 2017). 

SUSB provides estimates of entities and 

employees by employer size range, 

which OSHA used to exclude employers 

with fewer than 100 employees.27

For rail transportation (NAICS 482), 

which is not included in SUSB or 

QCEW data, OSHA relied on Federal 

Railroad Administration and 

Association of American Railroads 

statistics reported in OSHA’s 2020 final 

rule, Cranes and Derricks in 

Construction: Railroad Roadway Work. 

See 85 FR 57109 (September 15, 2020). 

OSHA used these data sources to 

identify public and private railroad 

employers with more than 100 

employees. For agricultural NAICS (111 

and 112), OSHA relies on the National 

Agricultural Statistics Service, 2017 

Census of Agriculture (NASS, 2017) to 

obtain estimates of total entities, 

employees, and revenues. Since these 

data do not indicate the number of 

entities with more than 100 employees, 

OSHA assumes it is the same as the 

average proportion as the support 

activity sectors for crop and animal 

production (NAICS 114 and 115). OSHA 

similarly specifies teleworking 

conditions for NAICS 111 and 112 using 

the average result for support activities 

for agriculture (NAICS 114 and 115). For 

the postal service industry, NAICS 

491110, which is not included in SUSB, 

OSHA obtains total entity and 

employment data for private postal 

services from the QCEW. Since these 

data do not indicate the number of 

entities with more than 100 employees, 

OSHA assumes it is the same as the 

average proportion as the related 

industries, couriers and express delivery 

(NAICS 492110), and local delivery 

(NAICS 492120). 

OSHA used the BLS 2020 

Occupational Employment and Wage 

Statistics (OEWS), which provides 

NAICS-specific estimates of 

employment and wages by occupation, 

along with the data in Appendix B 

(discussed earlier), to determine the 

subset of non-teleworking employees 

affected by the ETS. 

Table IV.B.5 summarizes the set of 

entities covered by the ETS. OSHA 

estimates a total of approximately 

263,879 entities and approximately 1.9 

million establishments incur costs 

under the ETS.28 OSHA estimates these 

entities employ approximately 102.7 

million employees, and of these, OSHA 

estimates approximately 84.2 million 

employees are covered by the ETS and 

are not excluded from coverage by 

working remotely 100 percent of the 

time or exclusively outside.29 For the 

purpose of this analysis, OSHA 

estimates that all employees that OSHA 

estimated will work remotely will 

continue to do so for the duration of this 

ETS.30


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31The data from the CDC website was retrieved 

on October 4, 2021. 

32Age groups included: 18–24, 25–39, 40–49, 50– 

64, and 65–74. OSHA had not included the group 

65–74 in the economic analysis of the Healthcare 

ETS this past spring because for the healthcare 

sector, using the population wide average of 

workers in this age bracket was felt would 

overcount the number of such workers in this 

sector. OSHA is including this group now that more 

of the other age populations have been vaccinated 

and those concerns are no longer as relevant. This 

ETS will therefore indicate that a slightly higher 

percentage of universe of covered employees is 

vaccinated than if that age group of 65–74 was 

excluded altogether, but it also increases the 

number of employees for which additional 

compliance costs are factored in. OSHA interprets 

the ultimate result as a more accurate reflection of 

the workplace and notes that more costs are 

included than if the age group had been excluded 

from the analysis. 

33The agency takes a recent survey (Lazer et al., 

August 16, 2021) which breaks out rates for 

healthcare vaccination and non-healthcare, and 

rather than replacing the CDC base vaccination rate 

uses the CDC rate to make an adjustment upwards 

to the healthcare rate of 70 percent. 

III. Baseline Vaccine Status for Covered 

Employees 

To estimate the cost of the ETS, 

OSHA must first estimate the baseline 

vaccination status for the 84.2m covered 

employees (those who work for 

employers with 100 or more employees 

and are not otherwise excluded from 

coverage). OSHA recognizes that 

employees’ current vaccination status 

continues to change on a daily basis. 

When specifying baseline vaccination 

rates, OSHA used the most recently 

available vaccination data from CDC, 

reflecting current conditions. For the 

remaining set of unvaccinated 

employees covered by the ETS, after 

accounting for baseline vaccinations, 

OSHA estimates the number of these 

employees who will be vaccinated and 

the number who will test under the 

ETS. OSHA’s methodology for this 

analysis is detailed below. 

a. Estimate the Current Vaccination Rate 

for Covered Employees 

To estimate the current vaccinate rate 

for covered employees, OSHA obtained 

recent vaccination data by age group 

from the CDC COVID Data Tracker 

(CDC, October 4, 2021a).31 For age 

groups covering 18–74 years old, these 

data include the number of people who 

are fully-vaccinated as well as the 

number of people of who have initiated 

their first shot in the past two weeks 

(relative to the October 4, 2021 data).32

OSHA estimates the vaccination rate for 

each group (percent of total population 

in the age group who are vaccinated) 

based on the total number of people 

who are fully-vaccinated and had their 

first shot in the past two weeks, as a 

fraction of the population in each age 

group, obtained from the BLS Current 

Population Survey (CPS) (BLS, 2021d). 

Then, to estimate the overall average 

vaccination rate across age groups 18–74 

years old, OSHA weighted each group 

based on the distribution of the labor 

force by age, also obtained from the BLS 

CPS (BLS, 2021d). As shown in Table 

IV.B.6, OSHA estimates an overall 

vaccination rate of 61.3 percent for 

covered employees (and 38.7 percent 

unvaccinated). The healthcare sector 

had an earlier push to get healthcare 

workers vaccinated and has a higher 

current rate, estimated to be 70 

percent.33


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34Table 6a presents that 3,884,902 of the 

population will not take the vaccine because the 

‘‘doctor has not recommended it’’ out of a total of 

38,936,606 who will not get the vaccine for any 

reason. Medical reasons are then about 10% of the 

general population that will not get the vaccine, and 

the ones who won’t get the vaccine are about 10% 

of the whole population, giving 1% (.10 * .10). 

Based on the above, OSHA estimates 

that the 84.2m covered employees 

includes 52.5 million (62 percent) 

vaccinated employees and 31.7 million 

unvaccinated employees (38 percent). 

b. Adjust Baseline Vaccination for 

Continuing Trends 

OSHA adjusts the current vaccination 

rate to account for continuing trends in 

vaccinations among covered employees 

due to employers’ continued 

implementation of vaccine mandates 

and other policies (described below), 

under the ETS. To make this 

adjustment, OSHA requires 1) further 

characterization of the set of 

unvaccinated employees in terms of 

their likelihood to receive the vaccine, 

and 2) specification of the extent of 

employer-mandated and other employer 

vaccination policies. 

Based on vaccine confidence data 

from CDC (CDC, October 2021a), 13.8 

percent of the population ‘‘probably or 

definitely will not’’ get the vaccine; 

hereafter referred to as ‘‘vaccinehesitant’’. Since this group is by 

definition part of the currently 

unvaccinated, OSHA characterizes the 

currently unvaccinated (37.6 percent) as 

being comprised of those who are 

vaccine—hesitant (13.8 percent) and the 

remainder, who while unvaccinated, are 

not hesitant because they are not in the 

‘‘probably or definitely will not’’ group 

(23.8 percent). 

Among those who are vaccinehesitant, OSHA estimates that 5 percent 

of covered employees (or about 36 

percent of the vaccine-hesitant), are 

hesitant due to a religious (4 percent) or 

medical (1 percent) exemption. The 

remaining 8.8 percent include those 

who are vaccine-hesitant for other 

reasons. For the 4 percent estimate for 

religious exemptions, OSHA relies on 

data from Vermont, which removed its 

vaccine exemption for nonreligious 

personal beliefs in 2016 and saw the 

proportion of kindergarten students 

with a religious exemption rise to about 

4 percent (Graham, September 15, 

2021). In analyzing this issue, the 

agency also reviewed other religious 

exemption data concerning state 

workers in Oregon and Washington; the 

agency decided not to rely on these data 

because the Vermont data is a more 

accurate measure of the correct religious 

exemption rate, although the data does 

represent parents deciding on whether 

to claim an exemption for their child, 

not for themselves. This is because, 

unlike the Vermont data, the Oregon 

and Washington data contain workers 

that have applied, but not yet been 

accepted, for a religious exemption 

(O’Sullivan, September 18, 2021; KEZI 

News, September 25, 2021). In Oregon, 

5 percent and in Washington 8 percent 

of the employees have requested 

accommodations though only a fraction 

so far have been accepted. However, the 

data are not inconsistent with the 

Vermont data even though the process 

in both Oregon and Washington are not 

yet complete. For the 1 percent estimate 

for medical exemptions, OSHA relied 

on the Household Pulse Survey (HPS) 

conducted by the U.S. Census (U.S. 

Census Bureau, 2021). In Table 6a of the 

Health Tables for Week 31, September 1, 

2021 through September 13, 2021, about 

1% of the US population said they 

would not get the vaccine because 

‘‘Doctor has not recommended it,’’ and 

OSHA uses this response as a proxy for 

all medical conditions.34

Table IV.B.7 presents the number of 

employees in each vaccination category, 

which informs OSHA’s subsequent 

estimates of which currently 

unvaccinated employees may be 

vaccinated by employer-mandates, 

vaccinated under the ETS, or tested 

under the ETS. 


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35OSHA notes that these estimates differ for 

employees covered by the Healthcare ETS. OSHA 

calculated these estimates separately because, as 

stated above, OSHA is only taking costs for these 

employees in the last four months of the assumed 

6-month period while the ETS remains in effect. 

While OSHA does not describe in detail how it 

derived estimates for employees covered by the 

Healthcare ETS in this analysis, the derivation of 

those estimates run parallel to those described 

above. For more information, please see the 

spreadsheets supporting this analysis. (OSHA, 

October 2021a). 

Next, OSHA estimates the number of 

currently unvaccinated employees that 

are likely to become vaccinated while 

the ETS is in effect, based on their 

employers’ policies. Based on limited 

data on current vaccine mandate 

implementation and forecasts for future 

implementation (Mishra and Hartstein, 

August 23, 2021; ASU COVID–19 

Diagnostic Commons, October 6, 2021), 

OSHA estimates that 25 percent of firms 

in scope currently have a mandate, and 

assumes that this will rise to 60 percent 

of employers after the ETS is in place. 

The baseline of 25 percent is based on 

recent surveys showing a range of 

approximately 13–45 percent of 

employers currently requiring or 

planning to require vaccination among 

employees (see Willis Towers Watson, 

June 23, 2021; Mishra and Hartstein, 

August 23, 2021; ASU COVID–19 

Diagnostic Commons, October 6, 2021). 

Absent the ETS, OSHA assumes that the 

percentage of firms would remain 25 

percent (with some measure of upward 

adjustment due to other federal vaccine 

mandates affecting select populations, 

as discussed above). To the extent more 

firms than OSHA estimates would 

mandate vaccination independent of the 

ETS and thereby increase the 

vaccination rate (again because of 

factors such as other federal vaccine 

mandates), then the agency’s costs are 

overestimated because the agency’s 

baseline vaccination rate is too low. The 

assumption of an increase from 25 to 60 

percent is based on the same set of 

surveys that indicate that the share of 

employers who will mandate 

vaccinations after the ETS (including 

those that already mandate 

vaccinations) range from 25–75 percent, 

see above references. The agency also 

assumes that employees are distributed 

in the same proportion across employers 

with and without a vaccine mandate 

(e.g., if 60 percent of firms mandate 

vaccination, 60 percent of employees 

will be vaccinated due to the mandate 

(less those who remain unvaccinated 

due to religious or medical exemptions). 

OSHA assumes that all unvaccinated 

employees subject to an employer 

mandate will be vaccinated under that 

employer mandate, except for those 

seeking a medical or religious 

exemption. For unvaccinated employees 

not subject to an employer mandate, 

OSHA assumes that they will also be 

vaccinated at their employer’s request, 

except for employees who are vaccinehesitant, which includes not only those 

who remain unvaccinated for medical 

and religious reasons, but also those 

who are hesitant for any other reason. 

OSHA carries through its assumptions 

and estimates into its total cost 

estimates. For example, OSHA estimates 

that the 25 percent of firms in scope that 

currently have a vaccination mandate 

will not need to implement a new 

written policy on vaccination in 

response to the ETS since they will 

already have implemented a policy that 

meets the requirements of the ETS. 

In total, OSHA estimates that 27 

percent of covered employees (22.7 

million) will be vaccinated based on 

employer policies under the ETS; or 72 

percent of covered employees who are 

currently unvaccinated. The resulting 

vaccination rate, adjusted for the ETS, is 

estimated based on the total of those 

who are currently vaccinated and those 

who will be vaccinated under employer 

policies, 89.4 percent as shown in Table 

IV.B.8. Calculations of this nature, while 

not discussed in more detail in this 

analysis, are contained fully in the 

spreadsheets supporting this analysis 

(OSHA, October 2021a).35


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From Table IV.B.8, OSHA estimates 

that approximately 75.3 million (89.4 

percent) of covered employees will be 

vaccinated when the ETS is in full 

effect, and that approximately 8.9 

million employees (10.6 percent, made 

up of approximately 6.3 million covered 

employees who will be tested for COVID 

under the ETS and approximately 2.6 

million employees who return to 

telework (see next paragraph)) will 

remain unvaccinated. This final set of 

unvaccinated employees includes all 

employees not vaccinated because of 

religious or medical accommodations or 

medical contraindication, plus the 

portion of those who are vaccinehesitant for any other reason, who were 

not vaccinated because their employer 

has opted for a voluntary vaccination 

policy. 

From the above, OSHA estimates that 

about 5 percent of all covered 

employees will seek and receive 

religious or medical accommodations or 

exemption for medical contraindication. 

While the agency encourages employers 

to consider the most protective 

accommodations such as telework, 

which would prevent the employee 

from being exposed at work or from 

transmitting the virus at work, for cost 

analysis purposes the agency assumes 

these workers will largely be tested in 

order for their employers to comply 

with the ETS. Consistent with the 

overall average 22 percent of those who 

returned to work after teleworking 

earlier in the pandemic (see teleworking 

discussion above), OSHA assumes for 

this cost analysis that only 22 percent of 

workers needing a reasonable 

accommodation will return to full time 

telework as a reasonable 

accommodation. OSHA also assumes 

that the 78 percent remainder will 

follow the testing/masking protocols in 

the ETS as a reasonable accommodation. 

For hesitant employees who will not 

seek a religious or medical 

accommodation, and who work in a 

firm with a testing option, the agency 

assumes as above that those who were 

teleworking before (again on average 22 

percent) will return to telework rather 

than being tested. 

c. Cost of Absenteeism to Employers 

Even mild cases of Covid-19 can be 

costly to employers as they can induce 

productivity losses due to work 

absences, both among those infected 

and their close contacts who may be 

subject to quarantine requirements. 

While many workers were able to 

engage in telework in March-April 2020, 

several occupational groups deemed 

essential, including childcare workers, 

personal care aids, healthcare support 

occupations, and food processing 

workers, exhibited significantly higher 

rates of absenteeism during that period, 

which the authors attributed to some 

workers contracting COVID–19 

(Groenewold et al., July 10, 2020). 

Absenteeism can also affect the 

productivity of workers who are 

present, similar to how turnover can 

impose costs on incumbent workers 

(Kuhn and Yu, April 2021). 

In aggregate, productivity losses from 

absences can be costly, as evidenced by 

the economic losses from seasonal 

influenza. One estimate found that the 

United States loses 20.1 million days of 

economic productivity every year due to 

influenza, an ongoing loss equivalent to 

80,400 full-time worker-years (Putri et 

al., June 22, 2018). Another recent study 

found that higher influenza vaccination 

rates result in both fewer deaths and 

significantly reduced illness-related 

work absences (White, 2021). 

OSHA recognizes that absenteeism 

has been a problem. However, as 

explained in other sections of the 

preamble, the ETS vaccination and 

testing and face covering requirements 

are necessary to reduce the spread of 

COVID–19 in the workplace, which may 

in part reduce absenteeism. The ETS 

might in a limited sense also increase 

absenteeism because the rule requires 

employers to temporarily remove from 

the workplace any employee who 

receives a positive COVID–19 test or is 

diagnosed with COVID–19 by a licensed 

healthcare provider. However, this 

provision will also help to further 

reduce absenteeism because, when an 


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36This survey done in August, 2021, has 1,630 

responses, reported by HR staff, attorneys, and 

executives. Described as being ‘‘from a variety of 

industries,’’ 83 percent of respondents were from 

companies with more than 100 employees. 

37This August 2021 global survey (all results 

presented here are for the US only) has 1,143 

responses. It covers 28 industries, including: 

Technology and Software, Business and 

Professional Services, Manufacturing, Construction, 

and Healthcare. Ninety percent of respondents were 

from companies with more than 100 employees. 

38BLS (March 11, 2021). 

39 Id. 

40Umland, October 13, 2021. This October 2021 

survey has 1,059 total respondents, though only 365 

have implemented a vaccination mandate and 

answered this turnover question. 

infected employee is promptly removed 

from the workplace, that can prevent 

one employee from infecting other 

employees in the workplace and 

potentially causing an outbreak or a 

super-spreader event. Thus, OSHA 

concludes that the ETS may, on net, 

help ameliorate absenteeism by 

reducing illnesses, but in any event will 

not increase absenteeism (see OSHA, 

October 2021c). 

d. The Effect of Employee Turnover 

One of the primary concerns among 

employers in imposing vaccination 

mandates is loss of staff, with 60 percent 

of employers selecting it as a concern 

with regard to mandating COVID–19 

vaccination, according to one survey 

(Mishra and Hartstein, August 23, 

2021).36 To this end, employer 

vaccination mandates could lead to 

employee turnover; employees could 

either leave on their own volition or 

employers who have instituted strict 

vaccination policies may fire workers 

who are not vaccinated, or place them 

on unpaid leave. 

On the other hand, there is 

countervailing evidence to suggest that 

employers who implement a vaccine 

mandate will be met with an influx of 

potential workers. Many employees 

would prefer a mandate in place, and 

would be more likely to stay with, or 

apply to, a firm that had a vaccine 

mandate in place. For example, 

although Inova health system in 

Northern Virginia, lost 89 workers for 

noncompliance with the system’s 

vaccination mandate, that loss 

amounted to less than 0.5 percent of its 

workforce, (Portnoy, October 3, 2021), 

and, in any event, Inova’s CEO stated 

that the vaccine mandate has helped 

with recruitment, and that its workers 

are concerned for their own safety and 

want to know they are working with 

vaccinated colleagues. This same article 

listed some other Virginia healthcare 

systems with higher rates of loss in 

connection with vaccine mandates. 

Valley Health terminated 1 percent of its 

employees, while Luminis Health had 

about 2 percent of its workers still 

unvaccinated at the time of its mandate 

deadline. As another example, although 

United Airlines had 593 employees (out 

of the company’s 67,000 U.S. 

employees) who had not complied with 

the company’s vaccination mandate at 

the end of September (a number that 

dropped below 240 employees by 

October 1), the company reported it has 

received 20,000 applications for 2,000 

flight attendant positions, a much 

higher ratio than before the pandemic 

(Chokshi and Scheiber, October 2, 

2021). In addition, one survey reports 

that among employee resignations due 

to COVID–19 workplace policies, 42 

percent reported lack of workplace 

safety policies, 17 percent reported that 

existing workplace policies were not 

stringent enough, and only 39 percent 

reported overly restrictive workplace 

policies, suggesting that many 

employees will welcome vaccine 

mandates (ASU COVID–19 Diagnostic 

Commons, October 6, 2021).37

While employee turnover is a natural 

part of business in any industry, higher 

employee turnover rate than normal can 

have a direct impact on profit and 

revenue. The normal range of employee 

turnover differs widely by industry, 

with an average turnover rate of about 

50 percent per year overall for the 

private sector.38 For example, between 

2016 and 2020, employee turnover 

ranged from 55 percent to 70 percent in 

the retail industry and from 40 percent 

to 60 percent in the transportation 

industry (the industry sectors with the 

highest employment).39

OSHA acknowledges that a vaccine 

mandate may result in increased 

employee turnover, but one recent 

survey 40 suggests it is very unlikely that 

this potential increase in employee 

turnover will exceed the ranges that 

industries have experienced over time. 

The survey, though limited because 

many respondents did not have 

mandates in place at that time, shows 

that there was no impact on turnover for 

71 percent of those with mandates in 

place. Only 25 percent saw a slight 

increase in turnover (1 percent to 5 

percent above normal) and only 4 

percent saw a significant increase (more 

than 5 percent above normal). As such, 

OSHA does not anticipate that the 

potentially increased employee turnover 

attributable to vaccine mandates will be 

substantial enough to negate normal 

profit and revenue. 

To this end, an important factor to 

consider in examining turnover in 

connection with vaccine mandates is 

the unquantified cost savings and other 

positive economic impacts accruing to 

employers that institute vaccine 

mandates. These include reduced 

absenteeism due to fewer COVID–19 

illnesses and quarantines, as discussed 

above. Other positive economic impacts 

of a vaccine mandate are increased retail 

trade from customers that feel less at 

risk and better relations with suppliers 

and other business partners. These all 

would contribute to improved business 

and increased profits. 

The existence of these cost savings 

and other positive economic impacts 

accruing to employers that comply with 

the ETS suggests that the actual net 

costs of the ETS could be much lower 

than the costs reported in this section of 

the economic analysis. As OSHA 

discusses above, OSHA has provided 

evidence to support its estimate that 25 

percent of covered employers already 

voluntarily require that their employees 

be vaccinated and a much larger 

percentage are considering a vaccine 

mandate. This supports the conclusion 

that these businesses agree that doing so 

will ultimately save costs. 

In addition, under the ETS, employers 

may implement a policy that allows for 

testing and face covering instead. Firms 

will have a tendency to self-select: If a 

large proportion of its work force has 

indicated concern about a vaccine 

mandate, the firm is more likely to 

choose the testing option to retain their 

workers. This is one factor that led the 

agency to estimate that approximately 

40 percent of employers will allow 

employees to choose testing and face 

coverings in lieu of vaccination. To the 

extent employers are concerned about 

employee testing costs, employers can 

generally absorb testing costs or help 

employees reduce those costs through 

low-cost assistance such as employer 

proctoring of tests (even though that is 

not required by this ETS). Departure of 

personnel because of vaccine mandates 

is also likely to be less common when 

vaccine mandates are more prevalent 

across employers in a region or 

industry. One survey reports that 65 

percent of employers state that actions 

of other companies in their industry are 

very, or at least moderately, important 

in deciding to mandate vaccination 

(Mishra and Hartstein, August 23, 2021). 

Mandatory vaccinations for COVID– 

19 are still relatively new because 

vaccines only became available in 

quantities sufficient to support such 

mandates only about 6 months ago, and 

the FDA has only recently moved past 

emergency clearance to final clearance. 

While there is not an abundance of 

evidence about whether employees have 

actually left or joined an employer 

based on a vaccine mandate, 


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41Two polls from June 2021, when the number 

of COVID–19 cases had dropped dramatically just 

before the Delta Variant led to a surge in cases, 

indicated that 50% of unvaccinated employees 

surveyed said that they would leave their job rather 

than accept a vaccination mandate from their 

employer. (KFF et al., June 30, 2021) (the same 

percentage also responded that ‘‘The number of 

cases is so low that there is no need for more people 

to get the vaccine.’’). A separate poll from the same 

time also stated that 48% of ‘‘vaccine hesitant’’ 

employees claimed they would quit their jobs rather 

than be vaccinated. (Barry et al., September 24, 

2021—citing yet unpublished June 2021 poll). In a 

more recent poll, about 44% of workers said that 

they would consider leaving their jobs if they were 

forced to get vaccinated, while around 38% of 

workers would consider leaving their current 

employer if the organization did not enact a vaccine 

mandate. (Kelly August 12, 2021). Interestingly, in 

that survey there was a direct correlation between 

the age of the worker and the desire to have a 

vaccinated workplace: Younger workers, usually 

the most mobile portion of the workforce, had a 

much higher desire for a vaccinated workforce 

(50% of Generation Z employees, as compared to 

33% of Baby Boomers). 

42An article titled ‘‘Unvaccinated Workers Say 

They’d Rather Quit Than Get a Shot, but Data 

Suggest Otherwise’’ noted the 48%–50% threat to 

leave, but included hard data showing nothing 

close to those levels actually occurred: Houston 

Methodist Hospital required its 25,000 workers 

(including its 3,580 unvaccinated employees) to get 

a vaccine by June 7, and only 153 resigned or were 

fired (4% of the 3,580 unvaccinated employees; 

0.6% of the total number of employees); other 

examples of the numbers of employees who left in 

response to their employers’ mandatory vaccine 

policy involved 5 out of 527 (0.9%), 2 out of 250 

(0.8%), 6 out of 260 (3%), and 125 out of 35,800 

(0.3%). (Barry et al., September 24, 2021). 

43Note to paragraph (d): Under federal law, 

including the Americans with Disabilities Act 

(ADA) and Title VII of the Civil Rights Act of 1964, 

some workers may be entitled to a reasonable 

accommodation from their employer, absent undue 

hardship. If the worker requesting a reasonable 

accommodation cannot be vaccinated against 

COVID–19 and/or wear a face covering because of 

a disability, as defined by the ADA, or if the 

vaccination, testing, and/or wearing a face covering 

conflicts with the worker’s sincerely held religious 

belief, practice or observance, the worker may be 

entitled to a reasonable accommodation. For more 

information about evaluating requests for these 

types of reasonable accommodations for disability 

or sincerely held religious belief, employers should 

consult the Equal Employment Opportunity 

Commission’s regulations, guidance, and technical 

assistance including at: https://www.eeoc.gov/wysk/ 

what-you-should-know-about-covid-19-and-adarehabilitation-act-and-other-eeo-laws. 

particularly one with an alternative 

allowing for testing in lieu of 

vaccination, OSHA has examined the 

best available evidence it could locate in 

the timeline necessary to respond with 

urgency to the grave danger addressed 

in this ETS. Based on that, OSHA is 

persuaded that the net effect of the 

OSHA ETS on employee turnover will 

be relatively small, given the option for 

employers to implement a testing and 

face covering policy and the 

countervailing forces surrounding 

turnover that will limit those effects, as 

discussed above. 

Finally, OSHA finds one line of 

evidence particularly persuasive 

because it involves data instead of polls: 

While different surveys may suggest 

different levels of worker intentions 

(joining or remaining with a safer 

employer versus leaving an employer to 

avoid vaccination),41 the data suggests 

that the number of employees who 

actually leave an employer is much 

lower than the number who claimed 

they might: 1% to 3% or less actually 

leave, compared to the 48–50% who 

claimed they would.42 As discussed 

earlier, this turnover number is well 

below the average turnover rate in most 

industries. Thus, OSHA concludes that 

whether or not the ETS proves helpful 

to recruitment efforts for some 

employers, it will not, on balance, add 

significant new costs to covered 

employers or threaten the economic 

feasibility of any industry during a six 

month period. 

OSHA seeks comments on these 

estimates and conclusions, as well as 

further data that it could use to refine 

its estimates. 

IV. Cost Analysis for COVID–19 

Vaccination and Testing ETS, 

§ 1910.501 

In this section, OSHA provides 

estimates of the per-entity and total 

costs for the requirements of this ETS. 

Section 6(c)(3) of the OSH Act states 

that the Secretary will publish a final 

standard ‘‘no later than six months after 

publication of the emergency standard.’’ 

Costs are therefore estimated over a sixmonth time period. Note that the 

estimates are presented in this section at 

the 3-digit NAICS level, but the analysis 

was conducted at the 6-digit NAICS 

level and aggregated to the 3-digit level 

for presentation purposes. The 6-digit 

NAICS level data is accessible in the 

supporting spreadsheet. It should be 

noted that this analysis deals strictly 

with averages. For any given entity, 

actual costs may be higher or lower than 

the point estimate shown here, but 

using an average allows OSHA to 

evaluate feasibility by industry as 

required by the OSH Act. In addition, 

OSHA has limited data on many of the 

parameters needed in this analysis and 

has estimated them based on the 

available data, estimates for similar 

requirements for other OSHA standards, 

consultation with experts in other 

government agencies, and internal 

agency judgment where necessary. 

OSHA’s estimates are therefore based on 

the best evidence available to the agency 

at the time this analysis of costs and 

feasibility was performed. 

As mentioned above, OSHA estimates 

that approximately 264,000 entities 

have employees who will be subject to 

the requirements of the ETS, including 

approximately 84.2 million employees. 

Many ETS requirements result in labor 

burdens that are monetized using the 

labor rates described next. 

a. Wage Rates 

OSHA used occupation-specific wage 

rates from BLS 2020 OEWS data (BLS, 

2021a). Within each affected 6-digit 

NAICS industry, OSHA calculated the 

employee-weighted average wage to be 

used in the analysis. OSHA estimated 

loaded wages using the BLS’ Employer 

Cost for Employee Compensation data 

(BLS, 2021b), as well as OSHA’s 

standard estimate for overhead of 17 

percent times the base wage. 

Costs are estimated using three labor 

rates for each NAICS industry: The 

average labor rate for all employees, the 

labor rate for General and Operations 

Managers (SOC code 11–1021), and the 

labor rate for Office Clerks, General 

(SOC 43–9060). Industry-specific wage 

rates are presented in Appendix C in the 

accompanying document in the docket, 

‘‘Vaccination and Testing ETS: 

Economic Profile and Cost Chapter 

Appendices (OSHA, October, 2021b).’’ 

b. Rule Familiarization, Employer 

Policy on Vaccination, and Information 

Provided to Employees 

ETS Requirements 

Section 1910.501(d)(1) of the ETS 

specifies that the employer must 

establish and implement a written 

mandatory vaccination policy. The 

employer is exempted from the 

requirement in paragraph (d)(1) only if 

the employer establishes and 

implements a written policy allowing 

any employee not subject to a 

mandatory vaccination policy to either 

choose to be fully vaccinated against 

COVID–19 or to provide proof of regular 

testing for COVID–19 in accordance 

with paragraph (g) of the ETS and to 

wear a face covering in accordance with 

paragraph (i) of the ETS.43

In addition, under § 1910.501(j), 

information provided to employees, the 

ETS requires the employer to inform 

each employee, in a language and at a 

literacy level the employee understand 

about: (1) The requirements of the ETS 

as well as any employer policies and 

procedures established to implement 

the ETS; (2) COVID–19 vaccine efficacy, 

safety, and the benefits of being 

vaccinated; (3) the requirements of 29 

CFR 1904.35(b)(1)(iv) and Section 11(c) 

of the OSH Act; and (4) the prohibitions 

of 18 U.S.C. 1001 and Section 17(g) of 

the OSH Act. 

As stated, the ETS face covering 

requirements are contained in paragraph 


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44The estimates for the time to create the written 

vaccine policy plan under this ETS may differ from 

the time to create the various processes under the 

CMS rule published elsewhere in this issue of the 

Federal Register since the requirements of what is 

needed to be included in the plans differ. For 

example, the CMS plan requires a process for 

ensuring the implementation of additional 

precautions to mitigate the transmission and spread 

of COVID–19 while OSHA’s vaccination policy 

requirements do not include this requirement. 

(i) of the ETS. Under that paragraph, the 

employer, with certain exceptions 

specified in the ETS, must ensure that 

each employee who is not fully 

vaccinated wears a face covering when 

indoors and when occupying a vehicle 

with another person for work purposes. 

The ETS does not require, nor does it 

prohibit, the employer to pay for any 

costs associated with face coverings 

(although employer payment for face 

coverings may be required by other 

laws, regulations, or collective 

bargaining agreements or other 

collectively negotiated agreements). 

However, the employer must permit the 

employee to wear a respirator instead of 

a face covering whether required or not. 

In addition, the employer may provide 

respirators or face coverings to the 

employee, even if not required. In such 

circumstances, where the employer 

provides respirators, the employer must 

also comply with § 1910.504, Mini 

respiratory protection program. 

OSHA estimates no costs associated 

with an employee voluntarily bringing 

in their own respirator to use instead of 

a face covering other than those costs 

that OSHA is estimating below in 

connection with 29 CFR 1910.501(j), 

information provided to employees. 

That section provides, again, that the 

employer must inform each employee, 

in a language and at a literacy level the 

employee understands about the 

requirements of the ETS as well as any 

employer policies and procedures 

established to implement the ETS. One 

policy the employer would need to 

establish to implement the ETS is a 

policy to comply with the requirements 

of 29 CFR 1910.504 when an employee 

voluntarily brings in their own 

respirator. Those requirements require 

only that the employer provide certain 

information to the employee (see 29 

CFR 1910.504(c)). 

OSHA is also estimating no costs in 

connection with the employer providing 

respirators to the employee. The ETS 

does not require the employer to 

provide respirators to employees. 

Therefore, any such provision is 

voluntary and not relevant to economic 

feasibility of this rule. 

The face covering provisions in 

paragraph (i) contain several other 

requirements, none of which have costs 

associated with them. 

Cost Analysis Assumptions 

In this section, OSHA estimates the 

cost for establishing the employer policy 

on vaccination, providing required 

information to employees, and rule 

familiarization. OSHA assumes each 

entity will require an average one-time 

labor burden of 1 hour of management 

labor for rule familiarization. OSHA 

based this unit cost on that taken for 

rule familiarization in the Healthcare 

ETS (86 FR at 32496), but adjusted the 

time downward by a half-hour because 

this ETS is a simpler standard than the 

Healthcare ETS. 

To establish a written policy in 

accordance with paragraph (d) of the 

ETS, OSHA assumes a one-time average 

labor burden of 5 hours of manager time 

per firm. OSHA bases this estimate on 

its cost estimates in the Healthcare ETS, 

where OSHA estimated that 

development of the COVID–19 Plan 

required by that standard would take 

between 5 and 40 hours (see 86 FR at 

32496–32497). OSHA concludes that 5 

hours is a reasonable estimate because 

the development of a written policy on 

vaccination will be much simpler than 

the development of the written COVID– 

19 Plan required by the Healthcare ETS 

(see 29 CFR 1910.502(c)).44 OSHA 

notes, that like the Healthcare ETS (id.), 

the cost of implementing the plan for 

this ETS are included in the costs of 

implementing the corresponding 

requirements in the ETS, which are 

discussed below. 

To provide information to employees 

in accordance with paragraph (j) of the 

ETS, OSHA assumes a one-time average 

labor burden per firm of 10 minutes of 

manager time. The agency expects 

activities like posting the information 

on a community board, mass emailing, 

etc., will satisfy this requirement. 

The total cost for rule familiarization, 

establishing an employer policy on 

vaccination and providing required 

information to employees is calculated 

as the product of: 

• One-time labor burden for rule 

familiarization and establishing a policy 

(a total of 6 hours of manager time per 

entity) plus a one-time labor burden for 

providing information to employees (10 

minutes of manager time per entity); 

• The labor rate for General and 

Operations Managers (SOC code 11– 

1021, NAICS-specific wages); and, 

• The total number of covered 

entities. 

Cost for Employer Policy on Vaccination 

and Information Provided to Employees 

Costs per entity and total costs for 

employer policy on vaccination and 

information provided to employees are 

shown below in Table IV.B.9. 

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BILLING CODE 4120–01–C 

c. Determining Employee Vaccination 

Status 

ETS Requirements 

Under § 1910.501(e): 

Paragraph (e)(1). The employer must 

determine the vaccination status of each 

employee. This determination must 

include whether the employee is fully 

vaccinated, which is 2 weeks after the 

full required vaccine course is 

completed. 

Paragraph (e)(2). The employer must 

require each vaccinated employee to 

provide acceptable proof of vaccination 

status, including whether they are fully 

or partially vaccinated. Acceptable 

proof of vaccination status is: 

• The record of immunization from a 

health care provider or pharmacy; 

• A copy of the COVID–19 

Vaccination Record Card; 

• A copy of medical records 

documenting the vaccination; 

• A copy of immunization records 

from a public health, state, or tribal 

immunization information system; or 


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45While there may be some administrative costs 

borne by the government, such costs are not 

germane to this analysis of whether the ETS is 

economically feasible for covered employers. 

46Prior to the effective date of this rule, some 

companies offered on-site vaccination according to 

a limited survey. (Willis Towers Watson, June 23, 

2021). See also CDC on creating an on-site program 

(CDC, March 25, 2021; CDC, October 4, 2021b). 

• A copy of any other official 

documentation that contains the type of 

vaccine administered, date(s) of 

administration, and the name of the 

health care professional(s) or clinic 

site(s) administering the vaccine(s). 

In instances where an employee is 

unable to produce acceptable proof of 

vaccination, per above, a signed and 

dated statement by the employee, 

subject to criminal penalties for 

knowingly providing false information: 

• Attesting to their vaccination status 

(fully vaccinated or partially 

vaccinated); and 

• Attesting that they have lost and are 

otherwise unable to produce proof 

required by the ETS. 

Paragraph (e)(3). Any employee who 

does not provide one of the acceptable 

forms of proof of vaccination status in 

paragraph (e)(2) of the ETS to the 

employer must be treated as not fully 

vaccinated for the purpose of the ETS. 

Paragraph (e)(4). The employer must 

maintain a record of each employee’s 

vaccination status and must preserve 

acceptable proof of vaccination for each 

employee who is fully or partially 

vaccinated. The employer must 

maintain a roster of each employee’s 

vaccination status. These records and 

roster are considered to be employee 

medical records and must be 

maintained as such records in 

accordance with 29 CFR 1910.1020 and 

must not be disclosed except as required 

or authorized by the ETS or other 

federal law. These records and roster are 

not subject to the retention requirements 

of 29 CFR 1910.1020(d)(1)(i) but must be 

maintained and preserved while the 

ETS remains in effect. 

Paragraph (e)(5). Finally, when an 

employer has ascertained employee 

vaccination status prior to the effective 

date of this section through another 

form of attestation or proof, and retained 

records of that ascertainment, the 

employer is exempt from the 

requirements in paragraphs (e)(1)–(e)(3) 

only for each employee whose fully 

vaccinated status has been documented 

prior to the effective date of this section. 

For purposes of paragraph (e)(4), the 

employer’s records of ascertainment of 

vaccination status for each such person 

constitute acceptable proof of 

vaccination. 

The full costs for these provisions are 

taken under the costs for recordkeeping, 

discussed below, because determining 

vaccination status, providing acceptable 

proof of vaccination status, and creating 

and maintaining a roster of each 

employee’s vaccination status will be 

part and parcel of the recordkeeping 

process. 

d. Employer Support for Employee 

Vaccination 

ETS Requirements 

Under 29 CFR 1910.501(f): 

The employer must support COVID– 

19 vaccination by providing: 

• Time for vaccination. The employer 

must: (i) Provide a reasonable amount of 

time to each employee for each of their 

primary vaccination series dose(s); and 

(ii) provide up to 4 hours paid time, 

including travel time, at the employee’s 

regular rate of pay for this purpose. 

• Time for recovery. The employer 

must provide reasonable time and paid 

sick leave to recover from side effects 

experienced following any primary 

vaccination series dose to each 

employee for each dose. 

Under the ETS, fully vaccinated 

means (i) a person’s status 2 weeks after 

completing primary vaccination with a 

COVID–19 vaccine with, if applicable, 

at least the minimum recommended 

interval between doses in accordance 

with the approval, authorization, or 

listing that is: (A) Approved or 

authorized for emergency use by the 

FDA; (B) listed for emergency use by the 

World Health Organization (WHO); or 

(C) administered as part of a clinical 

trial at a U.S. site, if the recipient is 

documented to have primary 

vaccination with the ‘‘active’’ (not 

placebo) COVID–19 vaccine candidate, 

for which vaccine efficacy has been 

independently confirmed (e.g., by a data 

and safety monitoring board), or if the 

clinical trial participant from the U.S. 

site had received a COVID–19 vaccine 

that is neither approved nor authorized 

for use by FDA but is listed for 

emergency use by WHO; or (ii) a 

person’s status 2 weeks after receiving 

the second dose of any combination of 

two doses of a COVID–19 vaccine that 

is approved or authorized by the FDA, 

or listed as a two-dose series by the 

WHO (i.e., heterologous primary series 

of such vaccines, receiving doses of 

different COVID–19 vaccines as part of 

one primary series). The second dose of 

the series must not be received earlier 

than 17 days (21 days with a 4-day grace 

period) after the first dose. 

Cost Analysis Assumptions 

OSHA assumes there will be no costs 

to employers or employees associated 

with the vaccine itself.45 However, to 

provide support for vaccination of 

employees, OSHA estimates that it will 

take an average of 15 minutes of travel 

time, each way, per employee to travel 

to a vaccination site (for a total of 30 

minutes). OSHA then estimates 5 

minutes to wait, fill out any necessary 

paperwork, and receive the shot, and a 

post-shot wait time of 20 minutes, per 

employee. Some firms, particularly 

larger ones, will find it cheaper to have 

vaccines administered on site. They 

may have an on-site health clinic or may 

hire a 3rd party purveyor to come to the 

facility.46 This will minimize travel and 

also allow the companies to mitigate 

some of the logistical issues that may be 

preventing employees from receiving a 

vaccine (finding a convenient 

appointment time, etc.). OSHA 

estimates that 10 percent of firms with 

employees between 100 to 500 

employees will select this option, while, 

given decreased average costs associated 

with economies of scale, 25 percent of 

firms with over 500 employees will 

select this option. OSHA was unable to 

obtain an estimate of the cost savings 

associated with on-site vaccination in 

the time allotted to issue this emergency 

standard, so it is assuming that the costs 

for off-site vaccination are the same as 

the costs for on-site vaccination. This 

results in a likely over-estimate of costs 

given that the entities that choose the 

on-site option will do so as a cost-saving 

measure. 

In OSHA’s cost analysis, OSHA 

assumes that all employees will be 

vaccinated during working hours and 

employers would adjust the employee 

work schedule to ensure that the 

employee would not become eligible for 

overtime pay as a result of the 

vaccination time. However, it should be 

noted that, if an employee chooses to 

receive the vaccine outside of work 

hours, OSHA does not require 

employers to grant paid time to the 

employee for the time spent receiving 

the vaccine during non-work hours 

(although other laws may include 

additional requirements for employers, 

such as those addressing reasonable 

accommodations or exemptions). 

OSHA’s analysis may be an 

overestimate as it reflects an assumption 

that all vaccinations are received during 

work hours. 

CDC data indicated that 5 percent of 

employees vaccinated have received the 

Johnson & Johnson vaccine, and 95 

percent have received either Pfizer or 

Moderna (CDC, October 2021b). OSHA 

applies the same allocation to 

employees being vaccinated under the 

ETS. For those receiving Pfizer or 

Moderna, the labor burden outlined 


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47According to the CDC, people with allergies 

require a wait time of 30 minutes, but they are a 

small group, and, in any event, the CDC 

recommends that routine wait time is 15 minutes, 

so the agency considers that its average of 20 

minutes is probably an overestimate. (See CDC, 

October 4, 2021a; CDC, March 3,2021.) 

above occurs twice, since vaccination 

requires two shots. 

The employer must provide 

reasonable time and paid sick leave to 

recover from side effects experienced 

following any vaccination dose to each 

employee for each vaccination dose. 

Employers may require employees to 

use paid sick leave benefits otherwise 

provided by the employer to offset these 

costs, if available. The average amount 

of time off an employee may need for 

side effects while receiving the vaccine 

doses necessary to achieve full 

vaccination (one or two doses, 

depending on the vaccine) depends on 

several factors. First, the percentage of 

people who will have side effects that 

are severe enough to require time. 

Second, the average time duration for 

those who have such a severe reaction. 

For estimates of these parameters OSHA 

is using a recent study (Levi et al., 

September 29, 2021) which surveyed 

workers at a state-wide health care 

system who had been vaccinated. The 

study found that, for the first dose, 4.9% 

needed administrative leave, with an 

average length of absence of 1.66 days. 

For the second dose, 19.79% needed 

leave and their average length of 

absence was 1.39 days. Together, the 

average time on leave is .36 days (.049 

* 1.66 + .1979 * 1.39) for a person 

receiving two doses, which reflects the 

fact that many people who receive the 

vaccine do not have any side effects for 

either dose while others have more 

severe side effects. 

In order to determine the amount of 

paid sick leave that would be available 

to employees, OSHA relied on data from 

BLS (BLS, 2021e). BLS estimates that for 

civilian workers in establishments with 

100+ employees, 88% have access to 

paid sick leave (Table 33). BLS states 

that the average number of paid sick 

leave available is 9 days (Table 36). 

Because there is the same number of 

days across all levels of employee 

tenure (1 year, 5 years, 10 years, and 20 

years), OSHA used 9 days for all 

covered employees. The agency assumes 

that 75% of the available paid sick leave 

has been used by the current 4th quarter 

of the calendar year. So the average 

number of days available is 1.98 days: 

9 (days) * 88% (employees with 

available paid sick leave) * 25% 

(amount of leave remaining in the year) 

= 1.98 days available. Given that the 

average overall time out due to side 

effects is 0.36 days (see above), OSHA 

concludes that, on average, employees 

should have sufficient existing paid sick 

leave available to cover the time needed 

as a result of vaccine-related side 

effects. As a result, OSHA is taking no 

costs to employers in connection with 

the ETS’s requirement to provide time 

for recovery from vaccination (except as 

provided below), as these costs will 

have been incurred by the employer 

independent of the ETS. 

While this analysis is entirely 

consistent with OSHA’s standard 

procedure of strictly using averages in 

cost analysis, it nonetheless masks some 

significant effects resulting from the 

time for recovery requirements. From 

the BLS data, OSHA knows there are 

12% of establishments that have 100+ 

employees and do not provide paid sick 

leave. Correspondingly, there is a group 

of entities with no paid sick leave that 

will obviously incur costs that result 

directly from these requirements. In 

addition, some employees may not 

have, or some other entities may not 

offer, sufficient paid sick leave to cover 

these costs. 

To account for the 12 percent of firms 

that do not offer paid sick leave, the 

agency uses the above estimate of 

average days for two doses, 0.36 days, 

and multiplies the average employee 

wage by NAICS to calculate the cost per 

employee. Since OSHA does not know 

which firms make up the 12 percent, the 

agency spreads this total cost across all 

firms by employee. Since firms without 

any sick leave are likely to be lowerwage firms, this will likely lead to a cost 

overestimate. 

Therefore, the total cost for paid time 

off for vaccination is based on the costs 

for providing paid sick leave for the 12 

percent of firms that do not offer paid 

sick leave and: 

• Travel time per employee of 

covered firms of 15 minutes each way 

per vaccination dose (total of 30 

minutes). 

• Pre-shot wait time per employee of 

covered firms of 5 minutes per 

vaccination dose. 

• Post-shot wait time per employee of 

covered firms of 20 minutes per 

vaccination dose.47

• The average labor rate for 

employees (NAICS-specific wages). 

• Total number of employees at 

covered firms getting vaccinated due to 

the ETS with the Johnson & Johnson 

vaccine. 

• Total number of employees at 

covered firms getting vaccinated due to 

the ETS with the Pfizer and Moderna 

vaccines, multiplied by two to account 

for two shots. 

Cost for Support for Employee 

Vaccination 

Costs per firm and total costs for 

vaccination are shown below in Table 

IV.B.10. 

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48OSHA notes that while the testing required 

under this standard might be an option for 

employees who request a reasonable 

accommodation to avoid vaccination, other 

alternatives such as telework would be more 

protective to the employee by preventing COVID– 

19 exposure. These alternatives may also be 

available at no additional cost to the employer or 

employee. 

BILLING CODE 4120–01–C 

e. COVID–19 Testing for Employees 

Who Are Not Fully Vaccinated 

ETS Requirements 

Section 1910.501(g)(1) of the ETS 

requires the employer to ensure that 

each employee who is not fully 

vaccinated do the following: 

An employee who reports at least 

once every 7 days to a workplace where 

other individuals, such as coworkers or 

customers, are present: 

• Must be tested for COVID–19 at 

least once every 7 days; and 

• Must provide documentation of the 

most recent COVID–19 test result to the 

employer no later than the 7th day 

following the date on which the 

employee last provided a test result. 

An employee who does not report 

during a period of 7 or more days to a 

workplace where other individuals, 

such as coworkers or customers, are 

present (e.g., teleworking for two weeks 

prior to reporting to a workplace with 

others): 

• Must be tested for COVID–19 

within 7 days prior to returning to the 

workplace; and 

• Must provide documentation of that 

test result to the employer upon return 

to the workplace. 

Furthermore, if an employee does not 

provide documentation of a COVID–19 

test result as required by paragraph 

(g)(1) of the ETS, the employer must 

keep that employee removed from the 

workplace until they provide a test 

result. In addition, when an employee 

has received a positive COVID–19 test, 

or has been diagnosed with COVID–19 

by a licensed healthcare provider, the 

employer must not require that 

employee to undergo COVID–19 testing 

as required under paragraph (g) of this 

section for 90 days following the date of 

their positive test or diagnosis. Finally, 

the employer must maintain a record of 

each test result provided by each 

employee under paragraph (g)(1) of this 

section or obtained during tests 

conducted by the employer. These 

records are considered to be employee 

medical records and must be 

maintained as such records in 

accordance with 29 CFR 1910.1020 and 

must not be disclosed except as required 

or authorized by this section or other 

federal law. These records are not 

subject to the retention requirements of 

29 CFR 1910.1020(d)(1)(i) but must be 

maintained and preserved while this 

section remains in effect. 

OSHA addresses the costs associated 

with testing in the next section. The 

remaining costs required by paragraph 

(g) are taken under the costs for 

recordkeeping, discussed below, 

because providing documentation of test 

results to the employer will be part and 

parcel of the recordkeeping process. 

Employees who are partially 

vaccinated are also required to be tested 

weekly until they are fully vaccinated. 

Those receiving the J&J vaccine will 

require two weeks of testing after the 

single shot, employees who received the 

Pfizer-BioNTech Vaccine will require 5 

weeks of testing (3 weeks between shots 

and 2 weeks following the second shot), 

and Moderna recipients require 6 weeks 

of testing (4 weeks between shots and 2 

weeks following the second shot) (CDC, 

October 4, 2021b). Notwithstanding this, 

in the agency’s total cost estimate OSHA 

accounts for the fact that employers 

need not comply with the requirements 

of this section in paragraph (g) by 60 

days after the rule’s effective date, and 

that employees who have completed the 

entire primary vaccination series by that 

date do not have to be tested, even if 

they have not yet completed the 2 week 

waiting period. 

There is no requirement in the rule 

that the employer pay for this testing so 

these testing-related costs are not 

included in the main analysis (although, 

as discussed below OSHA takes into 

account costs for testing in connection 

with the ETS’s recordkeeping 

requirements). The agency estimates 

that 6.3 million weekly tests will need 

to be given due to this ETS (see Table 

IV.B.8). This 6.3 million is likely an 

overestimate of new costs because it 

encompasses tests for employees who 

were already required to conduct testing 

by their employers prior to this ETS. 

OSHA also notes that its cost 

estimates for testing do not take into 

account the 90-day break in testing that 

occurs following the date of a positive 

test or diagnosis. OSHA’s cost estimates 

are also potentially overcounting costs 

in that OSHA does not take into account 

that not all employees for whom testing 

is required will report at least once 

every 7 days to a workplace where other 

individuals, such as coworkers or 

customers, are present. Thus, OSHA’s 

estimate assumes that employees for 

whom testing is required will need to be 

tested at least once every 7 days and not 

less frequently as will often be the case. 

OSHA notes, in addition, that there 

are no costs associated with paragraph 

(g)’s removal provision. The ETS does 

not require the employer to provide 

paid time off to any employee for 

removal as a result of the employee’s 

refusal/failure to provide 

documentation of a COVID–19 test 

result as required by paragraph (g)(1) of 

the ETS. 

Finally, OSHA notes that a COVID–19 

test under the ETS is a test for SARS– 

CoV–2 that is: (i) Cleared, approved, or 

authorized, including in an Emergency 

Use Authorization (EUA), by the FDA to 

detect current infection with the SARS– 

CoV–2 virus (e.g., a viral test); (ii) 

Administered in accordance with the 

authorized instructions; and (iii) Not 

both self-administered and self-read 

unless observed by the employer or an 

authorized telehealth proctor. Examples 

of tests that satisfy this requirement 

include tests with specimens that are 

processed by a laboratory (including 

home or on-site collected specimens 

which are processed either individually 

or as pooled specimens), proctored overthe-counter tests, point of care tests, and 

tests where specimen collection and 

processing is either done or observed by 

an employer. Employers may have costs 

associated with doing, observing or 

proctoring employee testing, if 

employers choose to do so. However, for 

economic feasibility purposes, OSHA 

does not account for these costs in its 

estimates because they are not required 

for compliance with the ETS. 

Costs Associated with Reasonable 

Accommodation: Testing, Face 

Coverings, and Determinations 

The ETS does not require the 

employer to pay for any costs associated 

with testing; however employer 

payment for testing may be required by 

other laws, regulations, or collective 

bargaining agreements. Thus, while 

OSHA does not include any costs for 

reasonable accommodation requests in 

its main cost analysis in recognition that 

such costs would result from the 

application of other laws, OSHA notes 

that even if employers were to agree to 

pay for COVID–19 testing as part of a 

reasonable accommodation or some 

other reason required by law, such costs 

would not alter OSHA’s findings 

regarding the economic feasibility of the 

rule.48 OSHA reached this conclusion 

after conducting a separate analysis of 

reasonable accommodation costs that an 

employer might assume if they do not 

represent an undue hardship for the 

employer. This analysis is available in 

the docket at OSHA, October 2021d. 

OSHA notes that this separate 

analysis is limited to employees who 

request accommodation, and accounts 

for costs of reviewing medical and/or 

religious accommodation requests, as 


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49These counts represent hospitalizations and 

fatalities that would occur to the in-scope labor 

force despite the ETS. The numbers are derived 

using methodology similar to that used in Health 

Impacts to generate hospitalizations and fatalities 

prevented. An infection rate and case fatality rate 

are multiplied by the number of unvaccinated 

workers to derive a total number of fatalities. That 

number is used to derive hospitalizations. The 

number of hospitalizations and fatalities to 

vaccinated employees is calculated in a similar 

fashion, but with a lower infection rate because 

vaccination makes it considerably less likely that an 

individual will be tested and found to be infected. 

See (OSHA, October 2021a and OSHA, October 

2021c). One difference in methodology between 

these counts and the Health Impacts analysis is that 

these counts use a baseline of the last 19 months 

of CDC data to estimate the case fatality rate (similar 

to Alternative C in the Health Impacts analysis), 

rather than a baseline of the last 6 months (which 

OSHA used for the main Health Impacts analysis). 

This results in an estimate toward the upper bound 

for these counts (i.e., an overestimate of costs). 

well as costs for COVID–19 testing and 

face coverings that would satisfy the 

requirements of this ETS. OSHA expects 

a reasonable accommodation request 

could lead to a review of the employee’s 

request by a manager and then a 

conference between the manager and 

the employee. OSHA concludes that the 

combination of these costs would not 

alter OSHA’s findings regarding the 

economic feasibility of the ETS. 

f. Employee Notification to Employer of 

a Positive COVID–19 Test and Removal 

ETS Requirements 

Under § 1910.501(h): 

Regardless of COVID–19 vaccination 

status or any COVID–19 testing required 

under paragraph (g) of the ETS, the 

employer must: 

• Require each employee to promptly 

notify the employer when they receive 

a positive COVID–19 test or are 

diagnosed with COVID–19 by a licensed 

healthcare provider; and 

• Immediately remove from the 

workplace any employee who receives a 

positive COVID–19 test or is diagnosed 

with COVID–19 by a licensed healthcare 

provider and keep the employee 

removed until the employee: (i) 

Receives a negative result on a COVID– 

19 nucleic acid amplification test 

(NAAT) following a positive result on a 

COVID–19 antigen test if the employee 

chooses to seek a NAAT test for 

confirmatory testing; (ii) meets the 

return to work criteria in CDC’s 

‘‘Isolation Guidance’’ (incorporated by 

reference, § 1910.509); or (iii) receives a 

recommendation to return to work from 

a licensed healthcare provider. 

Costs Analysis Assumptions 

The ETS does not require employers 

to provide paid time off to any 

employee for removal from the 

workplace as a result of a positive 

COVID–19 test or diagnosis of COVID– 

19; however paid time off may be 

required by other laws, regulations, or 

collective bargaining agreements or 

other collectively negotiated 

agreements. Therefore, there are no 

costs associated with paragraph (h)’s 

removal provision. 

With respect to notification, to the 

extent employee notification is 

connected to the ETS’s testing and 

documentation requirements in 

paragraph (g), those costs to the 

employer are taken under the costs for 

recordkeeping, discussed below, 

because, as explained above, receiving 

documentation of test results under 

paragraph (g) will be part and parcel of 

the recordkeeping process. 

OSHA notes also that the costs 

associated with employee notification 

by vaccinated employees (not required 

by this ETS to undergo testing) should 

also be negligible because it will not 

occur with any real frequency. The very 

low breakthrough rates of infection 

among vaccinated persons suggests that 

the overwhelming majority of COVID– 

19 cases reported to a covered employer 

will be in the pool of unvaccinated 

employees. 

g. Reporting COVID–19 Fatalities and 

Hospitalizations to OSHA 

ETS Requirements 

Under § 1910.501(j): 

The employer must report to OSHA: 

• Each work-related COVID–19 

fatality within 8 hours of the employer 

learning about the fatality. 

• Each work-related COVID–19 inpatient hospitalization within 24 hours 

of the employer learning about the inpatient hospitalization. 

When reporting COVID–19 fatalities 

and in-patient hospitalizations to OSHA 

in accordance with paragraph (j)(1) of 

the ETS, the employer must follow the 

requirements in 29 CFR part 1904.39, 

except for 29 CFR part 1904.39(a)(1) and 

(2) and (b)(6). 

Cost Analysis Assumptions 

OSHA estimates a total of 1,464 

fatalities and 59,570 hospitalizations for 

employees of covered firms.49 This 

analysis is broadly consistent, using 

updated data, with OSHA’s analysis of 

a nearly identical provision in 29 CFR 

1910.502, the Healthcare ETS. OSHA 

also estimates, based on the Healthcare 

ETS, that reporting of each fatality and 

hospitalization will require 45 minutes 

of an employer’s time (86 FR at 32516). 

This includes hospitalizations and 

fatalities for employees that remain 

unvaccinated, as well as a small 

percentage of hospitalizations and 

fatalities of vaccinated employees due to 

breakthrough cases. Because of the 

timing requirements in the rule, the 

agency assumes that a hospitalization 

followed by a death will need two 

reports from the employer (i.e., the 

agency assumes that reporting for 

hospitalizations will occur within 8 

hours, before reporting for fatalities 

occurs, within 24 hours). This will 

result in a slight over-estimate. 

The total cost for reporting COVID–19 

fatalities and hospitalizations to OSHA 

is calculated as the product of: 

• One-time labor burden of 45 

minutes per report of hospitalization or 

fatality. 

• Wage range for General and 

Operations Managers (SOC code 11– 

1021, NAICS-specific wages). 

• Total number of fatalities for 

employees at covered firms. 

• Total number of hospitalizations for 

employees at covered firms. 

Cost for Reporting COVID–19 Fatalities 

and Hospitalizations to OSHA 

Costs per entity and total costs for 

vaccination are shown below in Table 

IV.B.11. 


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h. Recordkeeping 

ETS Requirements 

As discussed above, the full costs for 

the requirements in paragraph (e) of the 

ETS are taken under the costs for 

recordkeeping because determining 

vaccination status, providing acceptable 

proof of vaccination status, and creating 

and maintaining a roster of each 

employee’s vaccination status will be 

part and parcel of the recordkeeping 

process. Under paragraph (e)(4) of the 

ETS, the employer must maintain a 

record of each employee’s vaccination 

status and must preserve acceptable 

proof of vaccination for each employee 

who is fully or partially vaccinated. The 

employer must also maintain a roster of 

each employee’s vaccination status. 

These records and roster are considered 

to be employee medical records and 

must be maintained in accordance with 

29 CFR 1910.1020 as such records and 

must not be disclosed except as required 

or authorized by the ETS or other 

federal law. These records and roster are 

not subject to the retention requirements 

of 29 CFR 1910.1020(d)(1)(i) but must be 

maintained and preserved while the 

ETS remains in effect. 

With respect to vaccination, it should 

be noted that, under paragraph (e)(5) of 

the ETS, when an employer has 

ascertained employee vaccination status 

prior to the effective date of this section 

through another form of attestation or 

proof, and retained records of that 

ascertainment, the employer is exempt 

from the determination of vaccination 

requirements in paragraphs (e)(1)–(e)(3) 


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50The cost of providing to the Assistant Secretary 

for examination and copying the employer’s written 

policy required by paragraph (d) of the ETS will be 

de minimis. 

only for each employee whose fully 

vaccinated status has been documented 

prior to the effective date of this section. 

For purposes of the recordkeeping 

requirements in paragraph (e)(4), the 

employer’s records of ascertainment of 

vaccination status for each such person 

constitute acceptable proof of 

vaccination. OSHA estimates, based on 

this provision, that 60% of employees 

who were vaccinated prior to the 

promulgation of the ETS will not need 

to document vaccination status in 

connection with paragraph (e) (ASU 

COVID–19 Diagnostic Commons, 

October 6, 2021). 

As also discussed above, the costs for 

the requirements for documenting test 

results in paragraph (g), including the 

timing for when recordkeeping costs for 

testing accrue under the ETS, are taken 

under the costs for recordkeeping 

because providing documentation of test 

results to the employer will be part and 

parcel of the recordkeeping process. 

Under paragraph (g)(4) of the ETS, the 

employer must maintain a record of 

each test result provided by each 

employee under paragraph (g)(1) of the 

ETS or obtained during tests conducted 

by the employer. These records must be 

maintained in accordance with 29 CFR 

1910.1020 and must not be disclosed 

except as required or authorized by this 

section or other federal law. These 

records are not subject to the retention 

requirements of 29 CFR 

1910.1020(d)(1)(i) but must be 

maintained and preserved while this 

section remains in effect. 

With respect to testing, it should be 

noted that, under paragraph (m) of the 

ETS, employers are not required to 

comply with the requirements in 

paragraph (g) of the ETS until 60 days 

after the effective date of the ETS, 

meaning that for cost analysis purposes 

OSHA assumes that employers would 

not receive any testing records until the 

end of that 60-day period. 

Finally, under paragraph 

1910.501(l)(1) of the ETS, availability of 

records, by the end of the next business 

day after a request, the employer must 

make available, for examination and 

copying, the individual COVID–19 

vaccine documentation and any 

COVID–19 test results for a particular 

employee to that employee and to 

anyone having written authorized 

consent of that employee. In addition, 

under paragraph 1910.501(l)(2) of the 

ETS, by the end of the next business day 

after a request by an employee or an 

employee representative, the employer 

must make available to the requester the 

aggregate number of fully vaccinated 

employees at a workplace along with 

the total number of employees at that 

workplace. Under paragraph 

1910.501(l)(3) of the ETS, the employer 

must also provide to the Assistant 

Secretary for examination and copying: 

(i) Within 4 business hours of a request, 

the employer’s written policy required 

by paragraph (d) of the ETS, and the 

aggregate numbers described in 

paragraph (l)(2) of the ETS; and (ii) By 

the end of the next business day after a 

request, all other records and other 

documents required to be maintained by 

the ETS. 

Cost Analysis Assumptions 

To fulfill the recordkeeping 

requirements in the ETS, OSHA 

estimates that it will take an average of 

5 minutes of clerical time per employee 

record. OSHA bases this cost estimate 

on the estimate for recordkeeping in the 

Healthcare ETS (86 FR at 32515). While 

OSHA estimated an average of 10 

minutes of clerical time per employee 

record in the Healthcare ETS, that 

standard includes more extensive 

recordkeeping requirements than what 

is being required under this ETS. See 29 

CFR 1910.502(q)(2)(ii) (Healthcare ETS 

record must contain, for each instance, 

the employee’s name, one form of 

contact information, occupation, 

location where the employee worked, 

the date of the employee’s last day at the 

workplace, the date of the positive test 

for, or diagnosis of, COVID–19, and the 

date the employee first had one or more 

COVID–19 symptoms, if any were 

experienced). 

In addition, OSHA includes in this 

estimate 5 minutes of employee time to 

provide documentation of vaccination 

status or testing, as applicable, to the 

employer. OSHA notes that, for an 

employee who is vaccinated, the 

employer will determine the 

vaccination status of that employees and 

obtain acceptable proof of vaccination 

status at the same time, thus negating 

the need to create two separate records 

for these requirements. 

OSHA notes that there will be a cost 

associated with setting up the 

recordkeeping system (e.g., a 

spreadsheet) used to comply with the 

ETS. OSHA takes these costs in 

connection with the costs for the 

employer policy on vaccination, which 

are described above. 

Given the relative complexity of 

recordkeeping in the Healthcare ETS, 

OSHA has simplified its assumptions to 

reflect a variety of small costs in a 

combined estimate. As in the Healthcare 

ETS, the cost estimate of 5 minutes per 

event is likely much higher than 

necessary to account for just the actions 

of receiving and maintaining copies of 

records, so retaining this time will yield 

a tendency toward overestimation. 

However, this cost also reflects a margin 

to encompass additional outlier costs 

such as a second documentation of 

vaccination status for all employees 

who need to submit documentation 

twice (first for partial vaccination and 

then for full vaccination) under the ETS. 

This 5 minutes for recordkeeping also 

encompasses the marginal time for 

creating and maintaining a roster of 

each employee’s vaccination status 

(paragraph (e)) and making aggregate 

employee data available (paragraph (l)). 

Since normally the system used for 

recordkeeping will be electronic in 

businesses with more than 100 

employees, the time to create an 

aggregate report and a roster should be 

de minimis. Finally, this inflated 

recordkeeping cost encompasses time 

for employee notification to the 

employer of a positive COVID–19 test 

connected to the ETS’s testing and 

documentation requirements in 

paragraph (g),which is a notification 

under paragraph (h). Finally, the burden 

of making available, for examination 

and copying, the individual COVID–19 

vaccine documentation and any 

COVID–19 test results for a particular 

employee are included in this estimate 

because this documentation will 

normally be pulled from the electronic 

recordkeeping system described 

above.50


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The total cost for these requirements 

is calculated based on: 

• One-time labor burden of 5 minutes 

of employee labor to provide 

documentation and 5 minutes of clerk 

labor per employee record (one record 

per test administered and one record per 

documentation of vaccination status). 

• The average labor rate for Office 

Clerks, General (SOC 43–9060, NAICSspecific wages) and employees 

providing documentation (average wage 

over all employees, NAICS-specific 

wages) 

• Total number of employees at 

covered firms getting vaccinated due to 

the ETS with the Johnson & Johnson 

vaccine, who receive one shot. 

• Total number of employees at 

covered firms getting vaccinated due to 

the ETS with the Pfizer-BioNTech and 

Moderna vaccines, multiplied by two to 

account for two shots. 

• Total number of tests for employees 

at covered firms who are unvaccinated 

and will get vaccinated by receiving the 

Johnson and Johnson vaccine. 

• Total number of tests for employees 

at covered firms who are unvaccinated 

and will get vaccinated by receiving the 

Pfizer and Moderna vaccines. 

• Total number of employees at 

covered firms who are unvaccinated and 

will be tested weekly. 

Cost for Recordkeeping 

Costs per entity and total costs for 

recordkeeping are shown below in Table 

IV.B.12. 


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i. Summary of Total Cost 

Total Cost and Total Cost per Entity 


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j. Sensitivity Analysis 

As stated above, based on limited data 

on current vaccine mandate 

implementation and forecasts for future 

implementation (Mishra and Hartstein, 

August 23, 2021; ASU COVID–19 

Diagnostic Commons, October 6, 2021), 

OSHA estimates that 25 percent of firms 

in scope currently have a vaccination 

mandate, and assumes that this will rise 

to 60 percent of covered employers after 

the ETS is in place. Because the agency 

has no historic reference on which to 

base its assumptions regarding vaccine 

mandates, the agency adjusted the 

percentage of firms that will institute a 

vaccine mandate because of the ETS as 

part of a sensitivity analysis. Along with 


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the baseline estimate of 60 percent of 

firms having a mandate, the agency 

looked at a vaccine mandate rate of 40 

percent and 80 percent for covered 

firms, which OSHA judged to be a 

reasonable range based on the data 

available. The total costs associated 

with a 40 percent vaccine mandate are 

$2.998 billion, and the total costs 

associated with an 80 percent vaccine 

mandate are $2.964 billion. This 

compares to the baseline costs 

associated with a 60 percent vaccine 

mandate of $2.981 billion. A higher 

vaccine mandate increases the share of 

employees who get vaccinated while 

reducing the share that must get weekly 

testing. It is this shift in shares that 

causes the costs to change because the 

total costs associated with weekly 

testing (recordkeeping) are more 

expensive than the total costs associated 

with vaccination under the ETS 

(employer support for vaccination, 

recordkeeping). 

References 

ASU COVID–19 Diagnostic Commons. (2021, 

October 6). https://chs.asu.edu/ 

diagnostics-commons/workplacecommons. (ASU COVID–19 Diagnostic 

Commons, October 6, 2021) 

Barrero J et al. (2021, April). Why Working 

From Home Will Stick. Becker Friedman 

Institute Working Paper No. 2020–174. 

https://bfi.uchicago.edu/wp-content/ 

uploads/2020/12/BFI_WP_2020174.pdf. 

(Barrero et al., April 2021) 

Barry J et al. (2021, September 24). 

Unvaccinated Workers Say They’d 

Rather Quit Than Get a Shot, but Data 

Suggest Otherwise. Scientific American. 

https://www.scientificamerican.com/ 

article/unvaccinated-workers-say-theydrather-quit-than-get-a-shot-but-datasuggest-otherwise/. (Barry et al., 

September 24, 2021) 

Bick A et al. (2021, February). Work from 

Home Before and After the COVID–19 

Outbreak. Federal Reserve Bank of Dallas 

No. 2017, Revised February 2021. 

https://doi.org/10.24149/wp2017r2. 

(Bick et al., February 2021) 

Brynjolfsson E et al. (2020, June). COVID–19 

and Remote Work: An Early Look At US 

Data. National Bureau of Economic 

Research. https://www.nber.org/system/ 

files/working_papers/w27344/ 

w27344.pdf. (Brynjolfsson et al., June 

2020) 

Bureau of Labor Statistics (BLS). (2017). 

Quarterly Census of Employment and 

Wages (QCEW). https://www.bls.gov/ 

cew/. (BLS, 2017) 

Bureau of Labor Statistics (BLS). (2020). 

Occupational Requirements Survey 

(ORS). https://www.bls.gov/ors/. (BLS, 

2020) 

Bureau of Labor Statistics (BLS). (2021a). 

Occupational Employment and Wage 

Statistics (OEWS) Survey, May 2020. 

https://www.bls.gov/oes/. (BLS, 2021a) 

Bureau of Labor Statistics (BLS). (2021b). 

Employer Costs for Employee 

Compensation by Ownership, All 2018 

Civilian Wages and Salaries, March 

2021. https://www.bls.gov/news.release/ 

archives/ecec_06172021.pdf. (BLS, 

2021b) 

Bureau of Labor Statistics (BLS). (2021c). 

Current Population Survey, Table 2. 

Employed persons who teleworked or 

worked at home for pay at any time in 

the last 4 weeks because of the 

coronavirus pandemic by usual full- or 

part-time status, occupation, industry, 

and class of worker; Persons who 

teleworked because of the coronavirus 

pandemic. https://www.bls.gov/cps/ 

effects-of-the-coronavirus-covid-19- 

pandemic.htm#data. (BLS, 2021c) 

Bureau of Labor Statistics (BLS). (2021d). 

Current Population Survey, Household 

Data, Annual Averages, Employment 

status of the civilian noninstitutional 

population by age, sex, and race, Civilian 

noninstitutional population. https://

www.bls.gov/cps/cpsaat03.htm. (BLS, 

2021d) 

Bureau of Labor Statistics (BLS). (2021e). 

National Compensation Survey: 

Employee Benefits in the United States, 

March 2021. https://www.bls.gov/ncs/ 

ebs/benefits/2021/employee-benefits-inthe-united-states-march-2021.pdf. (BLS, 

2021e) 

Centers for Disease Control and Prevention 

(CDC). (2021, March 3). Interim 

Considerations: Preparing for the 

Potential Management of Anaphylaxis 

after COVID–19 Vaccination. https://

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Centers for Disease Control and Prevention 

(CDC). (2021, March 25). Workplace 

Vaccination Program. https://

www.cdc.gov/coronavirus/2019-ncov/ 

vaccines/recommendations/ 

essentialworker/workplace-vaccinationprogram.html. (CDC, March 25, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021a, October). Trends in 

COVID–19 Vaccine Confidence in the 

US. https://covid.cdc.gov/covid-datatracker/#vaccine-confidence. (CDC, 

October 2021a) 

Centers for Disease Control and Prevention 

(CDC). (2021b, October). COVID–19 

Vaccinations in the United States. 

https://covid.cdc.gov/covid-data-tracker/ 

#vaccinations_vacc-total-admin-ratetotal. (CDC, October 2021b) 

Centers for Disease Control and Prevention 

(CDC). (2021a, October 4). Demographic 

Characteristics of People Receiving 

COVID–19 Vaccinations in the United 

States. https://covid.cdc.gov/covid-datatracker/#vaccination-demographic. 

(CDC, October 4, 2021a) 

Center for Disease Control and Prevention 

(CDC). (2021b, October 4). COVID–19 

Vaccines That Require 2 Shots. https:// 

www.cdc.gov/coronavirus/2019-ncov/ 

vaccines/second-shot.html. (CDC, 

October 4, 2021b) 

Cerullo M. (2021, August 31). The New 

Return Office Date for Google? Try 2022. 

CBS News. https://www.cbsnews.com/ 

news/return-to-office-big-companiescorporations-covid-pandemic/. (Cerullo, 

August 31, 2021) 

Chesto J. (2021, June 22). Almost 40 percent 

of remote workers in Mass. won’t be back 

in the office until January, at the earliest. 

Boston Globe. https://

www.bostonglobe.com/2021/06/22/ 

business/back-office-not-so-fast/. 

(Chesto, June 22, 2021) 

Chokshi N and Scheiber N. (2021, October 2). 

Inside United Airlines’ Decision to 

Mandate Coronavirus Vaccines. The New 

York Times. https://www.nytimes.com/ 

2021/10/02/business/united-airlinescoronavirus-vaccine-mandate.html. 

(Chokshi and Scheiber, October 2, 2021) 

Courtney E. (2021, September 27). 30 

Companies Switching to Long-Term 

Remote Work. flexjobs. https://

www.flexjobs.com/blog/post/companiesswitching-remote-work-long-term/. 

Accessed September 27, 2021. (Courtney, 

September 27, 2021). 

Dingel J and Neiman B. (2020, July). How 

many jobs can be done at home? Journal 

of Public Economics. Volume 189, July 

2020, 104235. https://

www.sciencedirect.com/science/article/ 

pii/S0047272720300992. (Dingel and 

Neiman, July 2020) 

Graham R. (2021, September 15). Vaccine 

Resistors Seek Exemptions. But What 

Counts as Religious? The New York 

Times. https://www.nytimes.com/2021/ 

09/11/us/covid-vaccine-religionexemption.html. (Graham, September 15, 

2021) 

Groenewold M et al., (2020, July 10). 

Increases in Health-Related Workplace 

Absenteeism Among Workers in 

Essential Critical Infrastructure 

Occupations During the COVID–19 

Pandemic—United States, March–April 

2020. Centers for Disease Control and 

Prevention MMWR Vol. 69, No. 27. 

https://www.cdc.gov/mmwr/volumes/69/ 

wr/mm6927a1.htm. (Groenewold et al., 

July 10, 2020) 

Kaiser Family Foundation (KFF). (2021, June 

30). KFF COVID–19 Vaccine Monitor: 

June 2021. https://www.kff.org/ 

coronavirus-covid-19/poll-finding/kffcovid-19-vaccine-monitor-june-2021/. 

(KFF, June 30, 2021) 

Kelly J. (2021, August 12) Study Shows That 

44% Of Employees Would Quit If 

Ordered To Get Vaccinated. https://

www.forbes.com/sites/jackkelly/2021/08/ 

12/study-shows-that-44-of-employeeswould-quit-if-ordered-to-get-vaccinated/. 

(Kelly, August 12, 2021) 

KEZI News. (2021, September 25). Here’s 

How Many Oregon State Employees 

Have Requested a COVID Vaccine 

Exemption. https://www.kezi.com/ 

content/news/Heres-how-many-Oregonstate-employees-have-requested-aCOVID-vaccine-exemption575395141.html. (KEZI News, September 

25, 2021) 

Kuhn P and Yu L. (2021, April). How Costly 

is Turnover? Evidence from Retail. 

Journal of Labor Economics 39(2), 461– 

496. https://doi.org/10.1086/710359. 

(Kuhn and Yu, April, 2021) 

Lazer D et al. (2021, August 16). The COVID 

States Project: A 50-State Survey, Report 


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51These results are presented in the Excel ETS 

Revenue Threshold Test Tables available in the 

Docket for this ETS. The data used for six-digit 

NAICS were from the Bureau of the Census, 

available every five years (2002, 2007, 2012, 2107). 

#62: COVID–19 Vaccine Attitudes 

Among Healthcare Workers. The COVID 

States Project Report 62. https://

covidstates.org/reports. (Lazer et al., 

August 16, 2021) 

Levi M et al. (2021, September 29). COVID– 

19 mRNA vaccination, reactogenicity, 

work-related absences and the impact on 

operating room staffing: A crosssectional study. https://

www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC8479312/. (Levi et al., September 29, 

2021). 

Mishra D and Hartstein B. (2021, August 23). 

Littler COVID–19 Vaccine Employer 

Survey Report—Delta Variant Update. 

https://www.littler.com/publicationpress/press/littler-survey-employersincreasingly-consider-vaccine-mandatescovid-19. (Mishra and Hartstein, August 

23, 2021) 

National Agricultural Statistics Service 

(NASS). (2017). Census of Agriculture. 

https://www.nass.usda.gov/Quick_Stats/ 

CDQT/chapter/1/table/1. (NASS, 2017) 

O’Sullivan J. (2021, September 18). 

Washington state workers are getting 

exemptions to avoid the COVID–19 

vaccine—but will they keep their jobs? 

Seattle Times. https://

www.seattletimes.com/seattle-news/ 

politics/washington-state-workers-aregetting-exemptions-to-avoid-the-covid19-vaccine-but-will-they-keep-their-jobs/. 

(O’Sullivan, September 18, 2021). 

Occupational Safety and Health 

Administration (OSHA). (2021, 

September 25). State Plans. https://

www.osha.gov/stateplans/faqs. (OSHA, 

September 25, 2021) 

Occupational Safety and Health 

Administration (OSHA). (2021a, 

October). Analytical Spreadsheets in 

Support of the COVID–19 Vaccination 

and Testing ETS. (OSHA, October 2021a) 

Occupational Safety and Health 

Administration (OSHA). (2021b, 

October). COVID–19 Vaccination and 

Testing ETS: Economic Profile and Cost 

Chapter Appendices. (OSHA, October 

2021b) 

Occupational Safety and Health 

Administration (OSHA). (2021c, 

October). Health Impacts of the COVID– 

19 Vaccination and Testing ETS. (OSHA, 

October 2021c) 

Occupational Safety and Health 

Administration (OSHA). (2021d, 

October). Costs Associated with 

Reasonable Accommodation: Testing, 

Face Coverings, and Determinations. 

(OSHA, October 2021d) 

Portnoy J. (2021, October, 3). Several 

hundred Virginia health-care workers 

have been suspended or fired over 

coronavirus vaccine mandates. The 

Washington Post. https://

www.washingtonpost.com/local/covidvaccine-mandate-hospitals-virginia/ 

2021/10/01/b7976d16-21ff-11ec-8200- 

5e3fd4c49f5e_story.html. (Portnoy, 

October 3, 2021) 

Putri W et al. (2018, June, 22). Economic 

burden of seasonal influenza in the 

United States. Vaccine 36(27), 3960– 

3966. https://www.sciencedirect.com/ 

science/article/pii/S0264410X18306777?

via%3Dihub. (Putri et al., June 22, 2018) 

Umland B. (2021, October 13). Survey Looks 

at Vaccine Mandates and Employee 

Turnover. Mercer. https://

www.mercer.us/our-thinking/healthcare/ 

survey-looks-at-vaccine-mandates-andemployee-turnover.html. (Umland, 

October 13, 2021) 

U.S. Census Bureau. (2019). Statistics of U.S. 

Businesses (SUSB). https://

www.census.gov/programs-survey/ 

susb.html. (U.S. Census Bureau, 2019) 

U.S. Census Bureau. (2021). Household Pulse 

Survey (HPS), Week 37 Table 6A. 

https://www.census.gov/programssurveys/household-pulse-survey/ 

data.html. (U.S. Census Bureau, 2021) 

White C. (2021). Measuring Social and 

Externality Benefits of Influenza 

Vaccination. Journal of Human 

Resources Vol 56 Number 3, pp. 749– 

785. https://muse.jhu.edu/article/ 

798143. (White, 2021) 

Willis Towers Watson. (2021, June 23). 

COVID–19 Vaccination and Reopening 

the Workplace Survey. https://

www.willistowerswatson.com/en-US/ 

Insights/2021/06/covid-19-vaccinationand-reopening-the-workplace-survey. 

(Willis Towers Watson, June 23, 2021) 

V. ETS Economic Feasibility 

Determination 

a. OSHA’s Screening Tests for Economic 

Feasibility 

As noted in the introduction to the 

economic analysis, an OSHA standard is 

economically feasible when industries 

can absorb or pass on the costs of 

compliance without threatening 

industry’s long-term profitability or 

competitive structure, Cotton Dust, 452 

U.S. at 530 n.55, or ‘‘threaten[ing] 

massive dislocation to, or imperil[ing] 

the existence of, the industry.’’ United 

Steelworkers of Am. v. Marshall (Lead 

I), 647 F.2d 1189, 1272 (D.C. Cir. 1981). 

To determine whether a rule is 

economically feasible, OSHA typically 

begins by using two screening tests to 

determine whether the costs of the rule 

are beneath the threshold level at which 

the economic feasibility of an affected 

industry might be threatened. The first 

screening test is a revenue test. While 

there is no hard and fast rule on which 

to base the threshold, OSHA generally 

considers a standard to be economically 

feasible for an affected industry when 

the annualized costs of compliance are 

less than one percent of annual 

revenues. The one-percent revenue 

threshold is intentionally set at a low 

level so that OSHA can confidently 

assert that the rule is economically 

feasible for industries that are below the 

threshold (i.e., industries for which the 

costs of compliance are less than one 

percent of annual revenues). To put the 

one-percent threshold into perspective, 

OSHA calculated the average 

compounded annual rate of growth or 

decay in average revenues over the 15- 

year period from 2002 to 2017 (inflated 

to 2005 to 2020 dollars) for firms with 

100 or more employees in the 479 

NAICS (out of 546) industries covered 

by this ETS for which Census data were 

available and found that the average 

annual real rate of change in revenues 

in absolute terms for the average firm 

was 2.2 percentage points a year.51 In 

other words, revenues are generally 

observed to change by well more than 

one percent per year, on average, for 

firms with 100 or more employees in 

covered industries, indicating that 

changes of this magnitude are normal in 

these industries and that covered firms 

are typically able to withstand such 

changes over the course of a year, much 

less six months. As discussed below, the 

average percentage change due to this 

ETS for all covered NAICS is a fraction 

of this fluctuation in revenues. 

The second screening test that OSHA 

traditionally uses to consider whether a 

standard is economically feasible for an 

affected industry is if the costs of 

compliance are less than ten percent of 

annual profits (see, e.g., OSHA’s 

economic analysis of its Silica standard, 

81 FR 16286, 16533 (March 25, 2016); 

upheld in N. Am.’s Bldg. Trades Unions 

v. OSHA, 878 F.3d 271, 300 (D.C. Cir. 

2017)). The ten-percent profit test is also 

intended to be at a sufficiently low level 

so as to allow OSHA to identify 

industries that might require further 

examination. Specifically, the profit 

screen is primarily used to alert OSHA 

to potential impacts on industries where 

the price elasticity of demand does not 

allow for ready absorption of new costs 

in higher prices (e.g., industries with 

foreign competition where the American 

firms would incur costs that their 

foreign competitors would not because 

they are not subject to OSHA 

requirements). In addition, setting the 

threshold for the profit test low permits 

OSHA to reasonably conclude that the 

rule would be economically feasible for 

industries below the threshold. To put 

the ten-percent profit threshold test into 

perspective, evidence used by OSHA in 

its 2016 OSHA silica rule indicates that, 

for the combined affected 

manufacturing industries in general 

industry and maritime from 2000 

through 2012, the average year-to-year 

fluctuation in profit rates (both up and 


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52Profits are subject to the dynamics of the 

overall economy. Many factors, including a national 

or global recession, a downturn in a particular 

industry, foreign competition, or the increased 

competitiveness of producers of close domestic 

substitutes are all easily capable of causing a 

decline in profit rates in an industry of well in 

excess of ten percent in one year or for several years 

in succession (See OSHA, March 24, 2016). 

53For information regarding the standards and 

practices used by the Census Bureau to ensure the 

quality and integrity of its data, see (US Census 

Bureau, October 8, 2021a; US Census Bureau, 

October 8, 2021b). 

54See IRS, 2013. 

55OSHA also investigated Bizminer and RMA as 

potential sources of profit information and 

determined that they do not represent adequate and 

random samples of the affected industries. 

56There is one code reported per tax entity and 

it may not be representative to the six-digit level. 

See Corporation Sourcebook on limitations of the 

industry classification for details. (IRS, 2013). 

down) was 138.5 percent (81 FR 

16545).52

When an industry ‘‘passes’’ both the 

‘‘cost-to-revenue’’ and ‘‘cost-to-profit’’ 

screening tests, OSHA is assured that 

the costs of compliance with the rule are 

economically feasible for that industry. 

The vast majority of the industries 

covered by the ETS fall into this 

category. 

A rule is not necessarily economically 

infeasible, however, for the industries 

that do not pass the initial revenue 

screening test (i.e., those for which the 

costs of compliance with the rule are 

one percent or more of annual 

revenues), the initial profit screening 

test (i.e, those for which the costs of 

compliance are ten percent or more of 

annual profits), or both. Instead, OSHA 

normally views those industries as 

requiring additional examination as to 

whether the rule would be economically 

feasible (see N. Am.’s Bldg. Trades 

Unions v. OSHA, 878 F.3d at 291). 

OSHA therefore conducts further 

analysis of the industries that ‘‘fail’’ one 

or both of the screening tests in order to 

evaluate whether the rule would 

threaten the existence or competitive 

structure of those industries (see United 

Steelworkers of Am., AFL–CIO–CLC v. 

Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 

1980)). 

Time Parameters for Analysis 

OSHA’s economic analyses almost 

always measure the costs of a standard 

on an annual basis, conducting the 

screening tests by measuring the cost of 

the standard against the annual profits 

and annual revenues for a given 

industry. One year is typically the 

minimum period for evaluating the 

status of a business; for example, most 

business filings for tax or financial 

purposes are annual in nature. 

Some compliance costs are up-front 

costs and others are spread over the 

duration of the ETS; regardless, the 

costs of the rule overall will not 

typically be incurred or absorbed by 

businesses all at once. However, OSHA 

does not expect that the ETS will 

require employers to incur initial capital 

costs for equipment to be used over 

many years (which would typically be 

addressed through installments over a 

year or a longer period to leverage loans 

or payment options to allow more time 

to marshal revenue and minimize 

impacts on reserves). 

The compliance costs for this ETS are 

for a temporary rule for a period of six 

months (which, again, is the time period 

that OSHA assumes this ETS will last, 

solely for economic purposes). While 

OSHA believes the most appropriate 

screens would be based on annual 

profits and revenue, it has followed the 

more cautious route of basing the 

screens on 6 months of profits and 

revenues to avoid any potential 

uncertainty about whether the ETS is 

economically feasible for the industries 

covered by this ETS. Using one year of 

revenues and profits as the 

denominators in the cost-to-revenue and 

cost-to-profit ratios would have resulted 

in ratios that are half of the estimated 

ratios presented in this analysis. It is 

therefore unsurprising that businesses 

in some number of NAICs have edged 

above the profit-thresholds using a 6 

month screen (as will be discussed 

later), and OSHA believes that edging 

above the screening thresholds is less of 

an indicator of economic peril in this 

context than in the context of a 

permanent rulemaking analysis. 

Nevertheless, OSHA has examined each 

of the NAICS that did not clear either of 

these conservative screening tests and 

has concluded that the ETS is 

economically feasible for each one. 

Data Used for the Screening Tests 

The estimated costs of complying 

with the ETS, which OSHA relied upon 

to examine feasibility is based on the 

two tests described above (see OSHA, 

October 2021a). The revenue numbers 

used to determine cost-to-revenue ratios 

were obtained from the 2017 Economic 

Census for firms with 100 or more 

employees in covered industries. This is 

the most current information available 

from this source, which OSHA 

considers to be the best available source 

of revenue data for U.S. businesses.53

OSHA adjusted these figures to 2020 

dollars using the Bureau of Economic 

Analysis’s GDP deflator, which is 

OSHA’s standard source for inflation 

and deflation analysis. 

The profit screening test for feasibility 

(i.e., the cost-to-profit ratio) was 

calculated as ETS costs divided by 

profits. Profits were calculated as profit 

rates multiplied by revenues. The 

before-tax profit rates that OSHA used 

were estimated using corporate balance 

sheet data from the Internal Revenue 

Service (IRS), 2013 Corporation Source 

Book (IRS, 2013). The IRS discontinued 

the publication of these data after 2013, 

and therefore the most current years 

available are 2000–2013.54 The most 

recent version of the Source Book 

represents the best available evidence 

for these data on profit rates.55

For each of the years 2000 through 

2013, OSHA calculated profit rates by 

dividing the ‘‘net income’’ from all firms 

(both profitable and unprofitable) by 

total receipts from all firms (both 

profitable and unprofitable) for each 

NAICS.56 OSHA then averaged these 

rates across the 14-year (2000 through 

2013) period. Since some data provided 

by the IRS were not available at 

disaggregated levels for all industries 

and profit rates, data at more highly 

aggregated levels were used for some 

industries; that is, where data were not 

available for each six-digit NAICS code, 

data for the corresponding four- or fivedigit NAICS codes were used. Data were 

used for all firms in the NAICS (as 

opposed to just firms with 100 or more 

employees) since data disaggregated by 

employment size-class were not 

available. Profit rates are expressed as a 

percentage (see OSHA, October 2021a). 

Profits themselves were used to 

calculate the cost-to-profit estimates for 

all firms contained in a particular 

NAICS code (see OSHA, October 2021a). 

OSHA has estimated costs over a 6- 

month timeframe for this ETS. As 

discussed above, OSHA has therefore 

used six months of revenue to conduct 

the cost-to-revenue tests and six months 

of profit to conduct the cost-to-profit 

tests. 

General Use of Revenues and Profits To 

Measure Economic Feasibility 

As with other OSHA rulemaking 

efforts, the agency relies on the two 

screening tests (costs less than one 

percent of revenue and costs less than 

ten percent of profit) as an initial 

indicator of economic feasibility. OSHA 

has generally found that the cost-torevenue test is a more reliable indicator 

of feasibility simply because the 

revenue data are more accurate than the 

profit data. There are several reasons for 

this. 

First, OSHA has been using corporate 

balance sheet data from the IRS as the 

best available evidence for estimating 


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57OSHA funded and accepted a final report by 

Contractor Henry Beale (Beale Report, 2003) that 

reviewed alternative financial data sources and 

concluded that the IRS data were the best. Since 

then OSHA has been relying on IRS data to provide 

the financial data to support its rulemaking 

analyses. See, for example, Occupational Safety and 

Health Administration (OSHA) (2016), Final 

Economic and Regulatory Flexibility Analysis for 

OSHA’s Rule on Occupational Exposure to 

Respirable Crystalline Silica, Chapter VI, pp. VI–2 

to VI–3, Docket No. OSHA–2010–0034–4247 

(OSHA, March 24, 2016), which includes a more 

recent review of data sources for corporate financial 

profit data and further support for OSHA’s choice 

of IRS data. 

58 In fact, all other Department of Labor agencies 

rely solely on revenues to assess economic impacts, 

such as Regulatory Flexibility Act certifications, in 

their rulemakings (see, e.g., Employment and 

Training Administration, Final Rule on 

Strengthening Wage Protections for the Temporary 

and Permanent Employment of Certain Aliens in 

the United States, https://www.govinfo.gov/content/ 

pkg/FR-2021-01-14/pdf/2021-00218.pdf; Wage and 

Hour Division, Tip Regulations Under the Fair 

Labor Standards Act (FLSA), https://

www.govinfo.gov/content/pkg/FR-2020-12-30/pdf/ 

2020-28555.pdf). 

59While fixed cost can be more limiting in terms 

of options for businesses, most of the costs of this 

rule are not fixed. Instead, most of the compliance 

costs vary with the level of output or employment 

at a facility. 

corporate profits for years.57

Nevertheless, because firms typically 

have an incentive to minimize their tax 

burden, it is reasonable to expect that 

some of the reported accounting data 

may have been strategically adjusted to 

reduce reported profits and their 

associated tax implications. Business 

profits are much more likely to reflect 

such strategic accounting than business 

revenues; accordingly, revenues are a 

more accurate measure than profits for 

evaluating economic feasibility for a 

multitude of reasons.58

Second, because OSHA is using data 

from both profitable and unprofitable 

firms, the average profit rate for a small 

number of industries is negative (as 

described above, using 14 years of data 

that predate the pandemic). This result 

could have occurred because of the way 

profits are calculated, which 

unnaturally skews average profit rates 

downward by including firms that have 

large losses (negative profits) or 

subnormal profits and have already 

closed or are in the process of closing, 

irrespective of any action by OSHA. The 

negative rates could also be the result of 

macroeconomic fluctuations during the 

14-year period used to determine the 

average, a period in which some of these 

industries may have experienced 

unusually adverse financial impacts 

(see, e.g., the explanation in Chapter VI, 

pp. VI–20 of the Final Economic and 

Regulatory Flexibility Analysis for 

OSHA’s Rule on Occupational Exposure 

to Respirable Crystalline Silica, Docket 

No. OSHA–2010–0034–4247, which 

notes the skew from negative impacts 

during recession years (OSHA, March 

24, 2016)). Or they could result from 

tax-related incentives, as previously 

noted. 

Whatever the reason, the cost-to-profit 

calculations for NAICS with negative 

profit rates fail to provide reliable 

information about the long-term 

profitability of these industries, 

independent of the ETS. Companies and 

industries that consistently lose money 

do not typically stay in business, and 

would almost certainly not still be in 

business in 2021 if that loss continued 

at the same level for each of the 8 years 

since the profit data was published in 

2012. Revenue streams are a more 

dependable measure for those firms 

because those streams tend to be more 

stable and more indicative of the actual 

capabilities of sustainable firms than 

reported negative profit margins. As a 

result, for the purposes of this analysis, 

OSHA has relied more heavily on its 

cost-to-revenue estimates, in lieu of 

cost-to-profit estimates, as the more 

reliable indicator for economic 

feasibility for the industries with 

negative profit rates. 

Third, and similarly, profit rates that 

are only slightly positive (i.e., less than 

one percent) are inconclusive and not 

useful for the purpose of OSHA’s costto-profit test. In economics terms, profit 

entails a reasonable rate of return on 

investment, and long-term profits of less 

than one percent a year are not generally 

reasonable for firms that expect to 

remain in business. Thus data showing 

industry-wide profits in this range do 

not measure the true ability of 

companies to pay for the ETS costs. As 

previously stated, revenue streams tend 

to be more stable and more indicative of 

the actual capabilities of sustainable 

firms. Therefore, where possible, OSHA 

prefers to rely on the cost-to-revenue 

test to evaluate economic feasibility for 

industries that have a less than one 

percent profit rate. 

The qualification, and by far the most 

important reason for the general 

primacy of revenues versus profits as 

the appropriate metric for determining 

economic feasibility, for most OSHA 

rules, is that the regulated firms are able 

to pass on the costs of the rule in the 

form of higher prices. When they 

cannot, the profit test functions 

primarily as a screen for a limited 

purpose: Alerting OSHA to potential 

impacts where unregulated competitors 

can prevent firms from passing costs 

along to customers. 

To understand this point, some 

economic background is needed. The 

price elasticity of demand refers to the 

relationship between the price charged 

for a product or service and the quantity 

demanded for that product or service: 

The more elastic the relationship, the 

larger the decrease in the quantity 

demanded for a product when the price 

goes up. When demand is elastic, 

establishments have less ability to pass 

compliance costs on to customers in the 

form of a price increase and must absorb 

such costs in the form of reduced 

profits. In contrast, when demand is 

relatively inelastic, the quantity 

demanded for the product or service 

will be less affected by a change in 

price. In such cases, establishments can 

recover most of the variable costs of 

compliance (i.e., costs that are highly 

correlated with the amount of output) 

by raising the prices they charge; under 

this scenario, if costs are variable rather 

than fixed, business activity and profit 

rates are largely unchanged for small 

changes in costs. Ultimately, where 

demand is relatively inelastic, any 

impacts are primarily borne by those 

customers who purchase the relevant 

product or service for a slightly higher 

price. Most of the costs of this ETS are 

variable costs because they depend 

primarily on the level of production or 

the number of employees at an 

establishment. For example, under the 

ETS, a firm with 500 employees must 

determine and record the vaccination 

status of 500 employees, while a firm 

with 250 employees need determine and 

record the vaccination status of only 250 

employees.59

In general, ‘‘[w]hen an industry is 

subjected to a higher cost, it does not 

simply swallow it; it raises its price and 

reduces its output, and in this way 

shifts a part of the cost to its consumers 

and a part to its suppliers’’ (Am. Dental 

Ass’n v. Sec’y of Labor, 984 F.2d 823, 

829 (7th Cir. 1993)). A reduction in 

output could happen in a variety of 

ways: Individual establishments could 

reduce their levels of service (e.g., retail 

firms) or production (e.g., 

manufacturing), both of which could 

take the form of a reduction of worker 

hours; some marginal establishments 

could close; or, in the case of an 

industry with high turnover of 

establishments, new entry could be 

delayed until demand equals supply. In 

many cases, a decrease in overall output 

for an industry will be a combination of 

all three kinds of reductions. The 

primary means of achieving the 

reduction in output most likely depends 

on the rate of turnover in the industry 

and on the form that the costs of the 

regulation take. Further, the temporary 

nature of the ETS and its associated 


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60This cost advantage may be exaggerated or nonexistent in many cases (see the discussion directly 

below in the text in Caveat 2). 

61Several occupational groups less able to avoid 

exposure to SARS–CoV–2 infection exhibited 

significantly higher rates of absenteeism in March– 

April 2020 compared to earlier periods 

(Groenewold et al., July 10, 2020). 

62For a discussion of turnover (i.e. whether the 

ETS could affect the likelihood that an employee 

will remain with an employer, either because the 

imposition of a vaccine requirement will lead some 

employees to leave and find employment at an 

establishment not subject to the ETS, or, 

alternatively, to stay due to a preference for 

enhanced COVID–19 safety procedures), please see 

the cost section (Section III.d.) of this economic 

analysis. 

63By OSHA’s calculation, 524 out of the 546 sixdigit NAICS covered by the ETS. 

costs suggests that firms may have more 

flexibility to respond than when facing 

a permanent increase in costs. For 

example, firms may be able to 

temporarily increase prices or 

temporarily defer planned capital 

expenditures or other maintenance to 

cover compliance costs. 

There are two situations typically 

mentioned when an industry subject to 

regulatory costs might be unable to pass 

those costs on: (1) Foreign competition 

not subject to the regulation, or (2) 

domestic competitors in other 

industries, not subject to the regulation, 

that produce goods or services that are 

close substitutes. Otherwise, when all 

affected domestic industries are covered 

by a rule and foreign businesses must 

also comply with the rule or are unable 

to compete effectively, the ability of a 

competing industry to offer a substitute 

product or service at a lower price is 

greatly diminished. 

There is a third situation that is 

relevant to this ETS—when only some 

firms in a domestic industry (in this 

case, only employers with 100 or more 

employees) are subject to the ETS and 

its regulatory costs. In principle, 

competition from smaller employers in 

a NAICS could prevent the larger 

employers from passing on their costs in 

the form of higher prices and instead 

require them to absorb the costs in the 

form of lost profits. There are, however, 

several important caveats: 

1. As a practical matter, it is 

implausible to expect that covered 

employers (with 100 or more 

employees) would feel constrained by 

smaller competitors in their industry so 

as not to pass on costs for a rule lasting 

6 months that imposes costs equal to 

0.02 percent of revenues, on average 

across all NAICS, over that time period 

(see OSHA, October 2021a). This time 

period would likely be too short for 

small firms to expand to take business 

away from the larger firms or for new 

firms to form to take advantage of such 

minor and transitory business 

opportunities. Furthermore, smaller 

firms (particularly very small firms— 

those with fewer than 20 employees) 

typically can’t compete on price with 

large firms that have cost advantages 

due to various economies of scale; as a 

result, smaller firms often serve a 

specialized niche market rather than 

compete directly with larger firms. To 

the extent that this ETS creates new 

business opportunities for these smaller 

uncovered firms, they would also be 

covered by the ETS as soon as they 

reached 100 employees.60

2. An important factor to consider in 

calculating the costs and impacts and 

economic feasibility of this ETS is the 

unquantified and unmonetized cost 

savings and other positive economic 

impacts accruing to employers that 

comply with the ETS. These include 

reduced absenteeism due to COVID–19 

illnesses 61 and quarantine.62 Other 

positive economic impacts that 

compliant employers would enjoy from 

a safer business environment are 

increased retail trade from customers 

that feel less at risk and better relations 

with suppliers and other business 

partners. These all would contribute to 

improved business and increased 

profits. 

3. The existence of these cost savings 

and other positive economic impacts 

accruing to employers that comply with 

the ETS suggests that the actual net 

costs of the ETS will be much lower 

than the costs reported in the 

supporting economic analysis for this 

ETS used to estimate cost impacts and 

demonstrate economic feasibility. In 

fact, for some share of covered 

employers, the net costs of the ETS may 

well be negative. Indeed, this is being 

confirmed by revealed preference in the 

market. Elsewhere in the economic 

analysis for this ETS (Cost Analysis 

section 4.2), OSHA has provided 

evidence to support its estimate that 25 

percent of covered employers already 

voluntarily require that their employees 

be vaccinated and a much larger 

percentage are considering a vaccine 

mandate. This strongly supports the 

conclusion that these businesses agree 

that doing so will ultimately save costs. 

b. Economic Feasibility Analysis and 

Determination 

This section summarizes OSHA’s 

feasibility findings for industries 

covered by the ETS. As stated 

previously, the agency uses two 

screening tests (costs less than one 

percent of revenue and costs less than 

ten percent of profit) as an initial 

indicator of economic feasibility. In this 

section, OSHA discusses the industries 

that fall above the threshold level for 

either screening test. 

The overall effect of compliance with 

the general section of the ETS on 

covered industries is very small (see 

OSHA, October 2021a). The vast 

majority of the covered NAICS have 

very low cost-to-revenue and cost-toprofit ratios, with the overall averages 

being 0.02 percent of revenues and 0.49 

percent of profits. To put this into 

perspective, if the average firm decided 

to raise prices to cover the costs of the 

ETS, the price of a $100 product or 

service, for example, would have to be 

increased by 2 cents (during the sixmonth period). 

Based on the information presented 

here, the costs of the ETS are below both 

the threshold revenue test (1 percent of 

revenues) and the threshold profit test 

(10 percent of profits) for the vast 

majority of NAICS industries.63 This 

indicates that the average firm in these 

industries will be able either to raise 

prices to cover ETS costs or to absorb 

the costs of the ETS out of available 

profits. In either case, OSHA concludes 

that the ETS is economically feasible for 

all of these industries. 

Critically, there are no industries 

covered by the general section of the 

ETS that are above OSHA’s cost-torevenue threshold level of one percent 

and most are a small fraction of this 

level. Because OSHA is using data from 

both profitable and unprofitable firms, 

the average profit rate for a small 

number of industries is negative. There 

are 14 NAICS with negative cost-toprofit ratios, resulting from negative 

average profit rates. These industries 

with negative profit rates are domestic 

service industries that are not subject to 

international competition. 

There are eight six-digit NAICS 

industries, covering all establishments 

in those industries covered by the 

general section of the ETS, with cost-toprofit ratios above 10 percent: 

1. NAICS 221118—Other Electric 

Power Generation, 23.97 percent; 

2. NAICS 488119—Other Airport 

Operations, 18.41 percent; 

3. NAICS 488410—Motor Vehicle 

Towing, 15.75 percent; 

4. NAICS 488490—Other Support 

Activities for Road Transportation, 

14.32 percent; 

5. NAICS 713920—Skiing Facilities, 

13.16 percent; and 


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64 If not underpriced by smaller firms, covered 

firms in the 8 NAICS industries reporting ETS costs 

above 10 percent of profits could cover these costs 

by raising prices an average of 0.08 percent (highest, 

0.11 percent); covered firms in the 14 NAICS 

industries reporting negative profits could cover 

ETS costs with a price increase of 0.01 percent 

(highest, 0.02 percent). 

6. NAICS 713940—Fitness and 

Recreational Sports Centers, 12.33 

percent; 

7. NAICS 713120—Amusement 

Arcades, 11.18 percent; and 

8. NAICS 488320—Marine Cargo 

Handling, 10.03 percent. 

The average profit rate reported over 

the 14 years for which OSHA has profit 

data for all the NAICS affected by the 

ETS is 4.2 percent. All of the eight 

NAICS industries with a cost-to-profit 

ratio above the 10 percent threshold 

report an annual profit rate below one 

percent—75 percent or more below the 

overall average for all NAICS covered by 

the ETS. These eight industries all 

provide domestic services and are not 

subject to international competition. 

The fact that the covered firms in 

these 22 NAICS industries (the 14 with 

negative cost-to-profit ratios and the 8 

with more sustainable cost-to-profit 

ratios) exceeded the profit screen 

suggests that they might in theory have 

difficulty paying for the costs of the ETS 

out of profits gained over the six-month 

duration of the ETS if they had no 

savings or access to capital, but even if 

that were true it would be highly 

unlikely to place the firms in financial 

jeopardy. OSHA examines these 

industries more closely below, but 

before even considering the reasons in 

NAICs-specific analysis it is important 

to consider the larger context. For the 

ETS to threaten the economic solvency 

of these firms, the following 3 

conditions must apply: 

1. These firms must not enjoy certain 

cost savings and positive economic 

impacts from the ETS that would 

partially or totally offset their costs. 

This condition is questionable because 

of the estimated 25 percent of employers 

sampled that reported voluntarily 

imposing a vaccine mandate and the 

substantial number more contemplating 

the voluntary adoption of such a 

mandate. They can be expected to base 

their decisions, partly or entirely, on 

anticipated cost savings or positive 

economic impacts (which would reduce 

or eliminate their risk of insolvency due 

to the ETS). 

2. These firms (all with 100 or more 

employees) must not be able to raise 

prices to cover ETS costs because of the 

threat that smaller firms in their NAICS 

industry, not covered by the ETS, could 

underprice them and take away their 

business. This condition is unlikely or 

limited because of the economies of 

scale the larger firms enjoy and the fact 

that the smaller firms out of necessity 

tend to serve a market niche not in 

direct competition with the larger firms. 

Also, there is a severe limit to the extent 

that firms with fewer than 100 

employees can take away significant 

portions of business from the larger 

firms without becoming subject to the 

requirements of the rule themselves. If 

the larger firms do not feel threatened 

by being underpriced by smaller firms 

in these NAICS industries, then they 

could raise prices an average of less 

than 0.05 percent 64 to cover the cost of 

the ETS—a small fraction of the 1.0 

percent of revenues threshold (beneath 

which OSHA has determined that 

economic feasibility is not a concern). 

3. These firms must not generate 

sufficient profits or have adequate 

borrowing capacity during the six 

months the ETS is in force to cover the 

costs of the ETS. There are several 

reasons to doubt that this condition 

broadly applies. First, the estimates of 

business profits come from corporate 

balance sheet data that firms report to 

the IRS. But, as previously noted, it is 

generally the case that firms have an 

incentive to minimize their tax burden, 

and it is reasonable to expect that some 

of the reported accounting data may 

have been strategically adjusted to 

reduce reported profits and their 

associated tax implications. Another 

point concerning the IRS data is that 

they include the negative profits of 

firms that are going out of business or 

have since gone out of business. To the 

extent that these points are true, many 

or most of the covered firms in these 

NAICS industries (still in business) 

actually would generate sufficient profit 

to cover the cost of the ETS. A related 

point is that for this condition to apply, 

the firms must not be able to borrow the 

money to pay for the costs of the ETS. 

Recall, however, that these are all large 

firms with 100+ employees. It is 

reasonable to expect that many or most 

firms of this size in the 22 NAICS 

industries at issue either have available 

funds or could obtain a short-term loan 

to cover costs equal to the 0.01 to 0.11 

percent of revenues that these firms 

would incur over the six-month period 

that OSHA assumes the ETS will remain 

in effect. Firms of this size normally 

have banking relationships and some 

unencumbered assets. They also have 

access to national and international 

capital markets. If these firms can 

borrow funds to pay for the ETS, then 

the profit restriction doesn’t matter. 

Finally, OSHA anticipates concern 

that limiting the scope of the ETS to 

employers with 100 or more employees 

will somehow put these larger firms in 

economic jeopardy from the smaller 

firms to which the ETS does not 

currently apply. This is highly 

improbable for several reasons 

discussed earlier, including the fact that 

these are large employers with 

advantages of economies of scale and 

access to capital and the fact that this is 

a temporary standard that would result, 

at most, in marginal impacts over 6 

months (on average, equal to costs of 

0.02 percent of revenues, which, again, 

translates to a cost increase of a penny 

on a fifty dollar item). 

But even that misses the main point: 

Economic feasibility refers to the 

industry, not to the firm. OSHA must 

construct a reasonable estimate of 

compliance costs and demonstrate a 

reasonable likelihood that these costs 

will not threaten the existence or 

competitive structure of an industry, 

even if it does portend disaster for some 

marginal firms (Lead I, 647 F.2d at 

1272). In the (again) highly unlikely 

event that individual firms exit an 

industry and are replaced by other firms 

in the industry, then the ETS would 

preserve the economic feasibility of the 

covered industries. If an employer 

covered by this standard actually had to 

increase its prices slightly to account for 

the cost of this standard, there are two 

potential groups of smaller businesses 

that could seek to supplant the covered 

firms. The first group of businesses are 

much smaller than the covered firms. 

Those businesses, however, will 

typically have higher costs and prices to 

begin with due to their scale 

disadvantages to the larger firms. The 

larger firm’s small price increases 

attributable to this ETS would not be 

likely to create an actionable 

competitive advantage for this group of 

smaller businesses. The second group of 

businesses are those closer in size to the 

100-employee cutoff. If the marginal 

price increases did actually cause some 

of the larger firms to fail and the slightly 

smaller firms to take their place, the 

industry itself would not suffer a 

massive dislocation or be imperiled. 

And, of course, if all of the firms in an 

industry are large employers with 100 or 

more employees, no competitive 

disadvantage from within the industry 

would exist (even hypothetically), and 

there would be no question that they 

could cover the cost of ETS by raising 

prices to customers accordingly. 

Although the preceding discussion 

demonstrates that the ETS is 

economically feasible, OSHA has 

provided an additional examination of 

each of the NAICS that have crossed the 

profit screen (again noting that none of 


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65See Walker, January 22, 2013. 

66This U.S. industry comprises establishments 

primarily engaged in (1) operating international, 

national, or regional airports, or public flying fields 

or (2) supporting airport operations, such as rental 

of hangar space, and providing baggage handling 

and/or cargo handling services. 

67This industry comprises establishments 

primarily engaged in towing light or heavy motor 

vehicles, both local and long-distance. These 

establishments may provide incidental services, 

such as storage and emergency road repair services. 

68This industry comprises establishments 

primarily engaged in providing services (except 

motor vehicle towing) to road network users. 

69This industry comprises establishments 

engaged in (1) operating downhill, cross country, or 

related skiing areas and/or (2) operating equipment, 

such as ski lifts and tows. These establishments 

often provide food and beverage services, 

equipment rental services, and ski instruction 

services. Four season resorts without 

accommodations are included in this industry. 

70See Brown, January 19, 2017, ‘‘[o]f the 9.4 

million skiers in the U.S., more than half earn a 

salary higher than $100,000. For some context, only 

20 percent of American households have a 

combined income of $100K. . . .’’) 

71This industry comprises establishments 

primarily engaged in operating fitness and 

recreational sports facilities featuring exercise and 

other active physical fitness conditioning or 

recreational sports activities, such as swimming, 

skating, or racquet sports. 

these failed the revenue screen): The 

eight NAICS industries with positive 

profit ratios but profit rates below 1 

percent. 

1. NAICS 221118—Other Electric Power 

Generation, 23.97 Percent 

This U.S. industry comprises 

establishments primarily engaged in 

operating electric power generation 

facilities (except hydroelectric, fossil 

fuel, nuclear, solar, wind, geothermal, 

biomass). These facilities convert other 

forms of energy, such as tidal power, 

into electric energy. The electric energy 

produced in these establishments is 

provided to electric power transmission 

systems or to electric power distribution 

systems. 

Using tides to generate power is not 

yet economically viable, according to 

one source, because ‘‘[t]otal availability 

of tidal power is restricted by its 

relatively high cost and limited number 

of sites having high flow velocities and 

tidal ranges,’’ although ‘‘with [ ] recent 

advancements in tidal technologies, the 

total availability of tidal power in terms 

of turbine technology as well as design 

may be higher than before, and the 

economic costs may be reduced 

significantly to competitive levels.’’ In 

support, in the same article, ‘‘recent 

reports state that the UK, which has the 

largest tidal and wave resource in 

Europe, is capable of harnessing up to 

153GW of tidal power capacity with the 

help of three types of technologies and 

thus meeting 20% of current UK 

electricity demand and reducing carbon 

emissions. Hence it is evident that wave 

and tidal energy could contribute more 

to the increasing electricity demands 

across the globe.’’ 65

At the time OSHA obtained the most 

recent NAICS data, there were 7 affected 

entities in this NAICS industry. The 

entities in this NAICS industry include 

firms like Berkshire Hathaway Energy 

Company, (with annual sales of $19.8 

billion, whose ‘‘portfolio consists of 

locally managed business that share a 

vision for a secure and sustainable 

energy future’’); Dominion Energy (with 

annual sales of $13.4 billion); and other 

leading firms in this industry including 

some of the largest power generation 

companies in the US (See NAICS 

Association, 2018a; NAICS Association 

2018d; and NAICS Association 2018e). 

As this NAICS industry is not yet 

viable, (in the United States, at least), it 

is to be expected that revenues and 

profits would be low. In fact, OSHA 

believes the best way to view this 

industry is as a series of incredibly wellfunded start-up companies during the 

investment phase of the business, where 

short-term losses are expected and offset 

with the anticipation of enormous 

revenue growth potential (in an 

acknowledged very limited energy 

market.) Given these factors, OSHA’s 

typical revenue and profit screen are a 

poor predictor of future viability with 

respect to this NAICS industry 

(although, as pointed out, this NAICS 

industry, like all other NAICS 

industries, falls well below the revenue 

screen threshold). The estimated cost of 

this ETS per firm is $866 in this NAICS 

industry, which equals about 11 cents 

per hundred dollars of revenue over a 

limited six-month duration. OSHA 

concludes that this industry will be able 

to withstand this small cost in order to 

keep its workers protected during the 

pandemic. 

2. NAICS 488119—Other Airport 

Operations, 18.41 Percent 66

The services this industry offers are 

integrated into a particular geographic 

location and entail specific tasks, such 

as parking and baggage handling 

services, that must be done to ensure the 

proper functioning of airports, thus 

negating the potential for substitution 

during the 6 month period that OSHA 

is assuming the ETS will be in effect for 

economic purposes. In addition, 

because these are services that need to 

be done in particular domestic locations 

(i.e., airports), there is no risk of 

international competition. 

3. NAICS 488410—Motor Vehicle 

Towing, 15.75 Percent 67

The actual cost impacts on this 

industry are likely significantly 

overstated to the extent that most 

employees performing towing services 

ride alone in their trucks and their 

services do not typically require 

exposure to others. In the event that 

individual large towing firms are 

concerned about economic impacts, it 

would not be difficult to structure their 

employee interactions with the 

company and customers to take 

advantage of the scope restrictions. 

Moreover, the primary services this 

industry offers involve the use of 

specialized vehicles designed uniquely 

for towing, thus lowering the risk of 

substitution. In addition, because these 

services are geographically based, there 

is no risk of international competition. 

4. NAICS 488490—Other Support 

Activities for Road Transportation, 

14.32 Percent 68

This industry offers services that must 

be done to ensure proper operation of 

roadways (for example, bridge, tunnel, 

and highway operations, pilot car 

services (i.e., wide load warning 

services), driving services (e.g., 

automobile, truck delivery), and truck or 

weighing station operations), thus 

negating the potential for substitution. 

In addition, because these services need 

to be done in particular domestic 

locations (i.e., roadways), there is no 

risk of international competition. 

5. NAICS 713920—Skiing Facilities, 

13.16 Percent 69

This industry caters to a wealthy 

clientele who ensure an inelastic 

demand easily capable of absorbing any 

fractional increases attributable to this 

ETS.70 In addition, skiing is done 

outdoors, which will incentivize 

clientele to continue engaging in this 

particular activity in lieu of indoor 

substitutions, during the pandemic. 

Finally, there is little to no risk of 

international competition from foreign 

ski resorts because the added and 

substantial costs of international travel 

outweigh the costs associated with 

marginally higher prices resulting from 

the ETS. 

6. NAICS 713940—Fitness and 

Recreational Sports Centers, 12.33 

Percent 71

As these settings are generally located 

close to where clients live or work, there 

is no risk of international competition. 

Some of the largest employers in this 

industry have already responded to 

customer feedback by not only requiring 

employees to be vaccinated, but also 


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72See Jackson, August 2, 2021 ‘‘Equinox also 

noted in the press release that ‘an overwhelming 

majority of members’ have expressed support for a 

vaccination requirement for entry to Equinox 

clubs.’’ 

73This industry comprises establishments 

primarily engaged in operating amusement (except 

gambling, billiard, or pool) arcades and parlors. 

74This industry comprises establishments 

primarily engaged in providing stevedoring and 

other marine cargo handling services (except 

warehousing). 

75NAICS 481111 (Scheduled Passenger Air 

Transportation) provides air transportation of 

passengers or passengers and freight over regular 

routes and on regular schedules, including 

commuter and helicopter carriers (except scenic 

and sightseeing). NAICS 481112 (Scheduled Freight 

Air Transportation) provides air transportation of 

cargo without transporting passengers over regular 

routes and on regular schedules, including 

scheduled air transportation of mail on a contract 

basis. NAICS 481211 (Nonscheduled Chartered 

Passenger Air Transportation) provides air 

transportation of passengers or passengers and 

cargo with no regular routes and regular schedules. 

NAICS 481212 (Nonscheduled Chartered Freight 

Air Transportation) provides air transportation of 

cargo without transporting passengers with no 

regular routes and regular schedules. NAICS 481219 

(Other Nonscheduled Air Transportation) provides 

air transportation with no regular routes and regular 

schedules (except nonscheduled chartered 

passenger and/or cargo air transportation). These 

establishments provide a variety of specialty air 

transportation or flying services based on 

individual customer needs using general purpose 

aircraft. 

76NAICS 517311 (Wired Telecommunications 

Carriers) comprises establishments primarily 

engaged in operating and/or providing access to 

transmission facilities and infrastructure that they 

own and/or lease for the transmission of voice, data, 

text, sound, and video using wired 

telecommunications networks. Establishments in 

this industry use the wired telecommunications 

network facilities that they operate to provide a 

variety of services, such as wired telephony 

services, including VoIP services; wired (cable) 

audio and video programming distribution; wired 

broadband internet services; and, by exception, 

establishments providing satellite television 

distribution services using facilities and 

infrastructure that they operate are included in this 

industry. NAICS 517312 (Wireless 

Telecommunications Carriers (except Satellite)) 

comprises establishments primarily engaged in 

operating and maintaining switching and 

transmission facilities to provide communications 

via the airwaves. Establishments in this industry 

have spectrum licenses and provide services using 

that spectrum, such as cellular phone services, 

paging services, wireless internet access, and 

wireless video services. NAICS 517410 (Satellite 

Telecommunications) comprises establishments 

primarily engaged in providing telecommunications 

services to other establishments in the 

telecommunications and broadcasting industries by 

forwarding and receiving communications signals 

via a system of satellites or reselling satellite 

telecommunications. NAICS 517911 

(Telecommunications Resellers) comprises 

establishments engaged in purchasing access and 

network capacity from owners and operators of 

telecommunications networks and reselling wired 

and wireless telecommunications services (except 

satellite) to businesses and households. 

Establishments in this industry resell 

telecommunications; they do not operate 

transmission facilities and infrastructure. NAICS 

517919 (All Other Telecommunications) comprises 

establishments primarily engaged in providing 

specialized telecommunications services, such as 

satellite tracking, communications telemetry, and 

radar station operation, and also includes 

establishments primarily engaged in providing 

satellite terminal stations and associated facilities 

connected with one or more terrestrial systems and 

capable of transmitting telecommunications to, and 

receiving telecommunications from, satellite 

systems, as well as establishments providing 

internet services or Voice over internet protocol 

(VoIP) services via client-supplied 

telecommunications connections. 

members.72 This suggests both that the 

costs estimates attributed to the ETS are 

overstated for these employers because 

higher levels of compliance may have 

already occurred than projected in 

OSHA’s analysis, and that the ETS 

requirements reflect more of an industry 

trend than a threat to the existence of 

the industry. 

7. NAICS 713120—Amusement 

Arcades, 11.18 Percent 73

This industry caters to a select 

clientele who have chosen to engage in 

leisure activities in the unique settings 

offered by the industry, thus negating 

the likelihood for substitution. In 

addition, because these settings are 

localized, there is no risk of 

international competition. 

8. NAICS 488320—Marine Cargo 

Handling, 10.03 Percent 74

The services this industry offers are 

integrated into a particular location and 

entail specific tasks, such as loading and 

unloading services at ports and harbors, 

longshoremen services, marine cargo 

handling services, ship hold cleaning 

services, and stevedoring services, that 

must be done to ensure the proper 

movement of cargo off of and onto 

ships, thus negating the potential for 

substitution. In addition, because these 

are services that need to be done in 

particular domestic locations (e.g., 

docks), there is no risk of international 

competition. 

As with towing, the actual cost 

impacts on this industry are likely 

significantly overstated to the extent 

that some of the employees may be able 

to perform their work exclusively 

outdoors. 

The Fourteen NAICS Industries With 

Negative Profit Ratios 

1. Air Transportation 75

NAICS 481111 (Scheduled Passenger 

Air Transportation), NAICS 481112 

(Scheduled Freight Air Transportation), 

NAICS 481211 (Nonscheduled 

Chartered Passenger Air 

Transportation), NAICS 481212 

(Nonscheduled Chartered Freight Air 

Transportation), NAICS 481219 (Other 

Nonscheduled Air Transportation). 

This group of NAICS industries is 

comprised of U.S. industries that 

primarily engage in providing air 

transportation. There is little to no risk 

of substitution for this group of NAICS 

industries. Air transportation provides 

unique and important benefits that 

cannot be substituted via other forms of 

transportation (e.g., rail, freight, bus). 

(See ATAG, September 2005). To this 

end, air transportation is often the 

speediest means of transporting 

passengers and cargo, giving it a unique 

purpose that cannot be met by other 

forms of transport. It should be noted 

that the five NAICS in this group of 

industries are the only NAICS in NAICS 

4811 (Scheduled Air Transportation) 

and 4812 (Nonscheduled Air 

Transportation). The other industries in 

NAICS 48 (Transportation) do not 

provide air transportation (See NAICS 

Association, 2018b). This further 

reduces the risk of substitution, as all 

five NAICS at issue have a negative 

profit ratio and therefore face similar 

challenges that appear to be endemic to 

air transportation. Firms in this industry 

that have been able to weather the 

pandemic this long are typically highly 

capitalized or have access to loans, so it 

is highly likely that they could also 

weather the temporary marginal costs of 

OSHA’s ETS. 

There is also no risk of international 

competition with respect to this group 

of NAICS industries because any 

workers, whether they work for an 

international company or not, who are 

in the US, are subject to US laws, 

including the ETS, and foreign air 

carriers will need to follow the ETS for 

those workers. In addition, OSHA 

suspects that any smaller foreign air 

carriers will not have an incentive to 

expand their routes significantly or 

change their routes to domestic US 

routes to take advantage of the 100- 

employee cutoff in the ETS in the 6- 

months the ETS is assumed to be in 

effect. 

2. Telecommunications 76

NAICS 517311 (Wired 

Telecommunications Carriers), NAICS 

517312 (Wireless Telecommunications 

Carriers (except Satellite), NAICS 

517410 (Satellite Telecommunications), 

NAICS 517911 (Telecommunications 

Resellers), NAICS 517919 (All Other 

Telecommunications). 

This group of NAICS industries is 

entirely comprised of U.S. industries, 

except for NAICS 517410 (Satellite 

Telecommunications). All of these 

industries provide specialized unique 

services in the telecommunications 

industry that require specialized unique 

knowledge and are thus resistant to 

substitution. While it is perhaps 


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77NAICS 532111 (Passenger Car Rental) 

comprises establishments primarily engaged in 

renting passenger cars without drivers, generally for 

short periods of time. NAICS 532112 (Passenger Car 

Leasing) comprises establishments primarily 

engaged in leasing passenger cars without drivers, 

generally for long periods of time. NAICS 532120 

(Truck, Utility Trailer, and RV (Recreational 

Vehicle) Rental and Leasing comprises 

establishments primarily engaged in renting or 

leasing, without drivers, one or more of the 

following: Trucks, truck tractors, buses, semitrailers, utility trailers, or RVs (recreational 

vehicles). NAICS 532310 (General Rental Centers) 

comprises establishments primarily engaged in 

renting a range of consumer, commercial, and 

industrial equipment. Establishments in this 

industry typically operate from conveniently 

located facilities where they maintain inventories of 

goods and equipment that they rent for short 

periods of time. The type of equipment that 

establishments in this industry provide often 

includes, but is not limited to: Audio visual 

equipment, contractors’ and builders’ tools and 

equipment, home repair tools, lawn and garden 

equipment, moving equipment and supplies, and 

party and banquet equipment and supplies. 

78See Park, January 23, 2021. 

possible that different forms of 

telecommunications might be 

substituted for one another (e.g., the 

substitution of wired 

telecommunications carriers for wireless 

telecommunications carriers), the reality 

is that these different forms exist 

separately and feed different markets 

and customer needs that are 

independent of the ETS. Moreover, the 

five NAICS in this group of industries 

are the only NAICS in NAICS 5173 

(Wired and Wireless 

Telecommunications Carriers), NAICS 

5174 (Satellite Telecommunications), 

and NAICS 5179 (Other 

Telecommunications). The other 

industries in NAICS 51 (Information) 

are not engaged in telecommunications 

(NAICS Association, 2018c). This 

further reduces the risk of one industry 

substituting for the others, as all five 

NAICS at issue have a negative profit 

ratio and therefore face similar 

challenges that appear to be endemic to 

telecommunications. 

Moreover, three of the five NAICS 

industries in this group (NAICS 517311, 

517312, 517410) operate or control the 

infrastructure needed for engaging in 

the particular type of 

telecommunications in which those 

industries engage. This not only fully 

negates the risk of substitution, but also 

negates the risk of international 

competition for these industries. 

The other two industries in the group 

apparently do not operate or control the 

infrastructure needed for 

telecommunications. However, the 

telecommunications industry faces strict 

state and federal licensing requirements, 

which severely limit the risk of 

competition both internationally and 

from smaller firms seeking to take 

advantage of the ETS’s 100-employee 

cutoff. (See FCC, 2014; FCC, October 12, 

2021a; FCC, October 12, 2021b; 

Caltrans, October 12, 2021; and UTC, 

October 12, 2021). 

3. Car and Equipment Rental 77

NAICS 532111 (Passenger Car Rental), 

NAICS 532112 (Passenger Car Leasing), 

NAICS 532120 (Truck, Utility Trailer), 

and RV (Recreational Vehicle) Rental 

and Leasing) NAICS 532310 (General 

Rental Centers). 

This group of industries rent motor 

vehicles (NAICS 532111, 532112, 

532120) or equipment (NAICS 532310), 

for example, audio visual equipment, 

contractors’ and builders’ tools and 

equipment, home repair tools, lawn and 

garden equipment, moving equipment 

and supplies, and party and banquet 

equipment and supplies, to individuals 

and businesses, for personal and 

professional use. There is no risk of 

substitution with respect to these 

industries, as these industries rent 

specific items to those who want to use 

them. There is also no risk of foreign 

competition with respect to these 

industries, as consumers and businesses 

rent and pick up vehicles, as well as the 

type of equipment offered for rent by 

NAICS 532310, from specific locations, 

including car rental and other rental 

centers. 

These industries have not been hard 

hit by the pandemic, as many 

consumers have turned from group 

travel to individual transportation. For 

example, RV rentals and leasing has 

soared during the pandemic, which is 

not reflected in the pre-pandemic profit 

and revenue data available for this 

analysis.78

References 

Air Transport Action Group (ATAG). (2005, 

September). The economic & social 

benefits of air transport. https://

www.icao.int/meetings/wrdss2011/ 

documents/jointworkshop2005/atag_

socialbenefitsairtransport.pdf. (ATAG, 

September 2005) 

Beale HBR. (2003). Financial Data Sources. 

Microeconomic Applications Inc. (Beale 

Report, 2003) 

Brown J. (2017, January 19). Bring More 

Diversity to Skiing. https://

www.powder.com/stories/opinion/ 

extend-the-family/. (Brown, January 19, 

2017) 

Caltrans. (2021, October 12). Wireless 

Licensing Program, California 

Department of Transportation. https://

dot.ca.gov/programs/right-of-way/ 

wireless-licensing-program. (Caltrans, 

October 12, 2021) 

Federal Communications Commission (FCC). 

(2021, October 12a) Licensing. https://

www.fcc.gov/licensing-databases/ 

licensing. (FCC, October 12, 2021a) 

Federal Communications Commission (FCC). 

(2021, October 12b) Satellite. https://

www.fcc.gov/general/satellite. (FCC, 

October 12, 2021b) 

Groenewold M et al., (2020, July 10). 

Increases in Health-Related Workplace 

Absenteeism Among Workers in 

Essential Critical Infrastructure 

Occupations During the COVID–19 

Pandemic—United States, March–April 

2020. Centers for Disease Control and 

Prevention MMWR Vol. 69, No. 27. 

(Groenewold et al., July 10, 2020) 

Internal Revenue Service (IRS). (2013). 2013 

Corporation Source Book. https://

www.irs.gov/statistics/soi-tax-statscorporation-source-book-us-total-andsectors-listing. (IRS, 2013) 

Jackson S. (2021, August 2). Gyms like 

Equinox and SoulCycle will soon require 

members to show proof of vaccination to 

use their clubs and studios. https://

www.businessinsider.com/equinoxsoulcycle-will-require-covid-19-vaccinesfor-members-staff-2021–8. (Jackson, 

August 2, 2021) 

NAICS Association. (2018a). NAICS Codes 

Description, 2018: 221118—Other 

Electric Power Generation. https://

www.naics.com/naics-code-description/ 

?code=221118. Last accessed October 12, 

2021. (NAICS Association, 2018a) 

NAICS Association. (2018b). Six Digit NAICS 

Codes and Titles, 2018: Codes 48–49. 

https://www.naics.com/six-digit-naics/ 

?code=48-49. Last accessed October 12, 

2021. (NAICS Association, 2018b) 

NAICS Association. (2018c). Six Digit NAICS 

Codes and Titles, 2018: Code 51. https:// 

www.naics.com/six-digit-naics/ 

?code=51. Last accessed October 12, 

2021. (NAICS Association, 2018c) 

NAICS Association. (2018d). NAICS Profile 

Page, 2018: Berkshire Hathaway Energy 

Co. https://www.naics.com/companyprofile-page/?co=4973. Last accessed 

October 12, 2021. (NAICS Association, 

2018d) 

NAICS Association. (2018e). NAICS Profile 

Page, 2018: Dominion Energy Inc. 

https://www.naics.com/company-profilepage/?co=11715. Last accessed October 

12, 2021. (NAICS Association, 2018e) 

Occupational Safety and Health 

Administration (OSHA). (2016, March 

24). Final Economic and Regulatory 

Flexibility Analysis for OSHA’s Rule on 

Occupational Exposure to Respirable 

Crystalline Silica, Chapter VI, pp. VI–20. 

Docket No. OSHA–2010–0034–4247. 

(OSHA, March 24, 2016) 

Occupational Safety and Health 

Administration (OSHA). (2021a, 

October). Analytical Spreadsheets in 

Support of the COVID–19 Vaccination 

and Testing ETS. (OSHA, October 2021a) 

Park S. (2021, January 23). RV sales soar 

during coronavirus pandemic. https://

www.foxbusiness.com/lifestyle/rv-salessoar-during-pandemic-travel-road-trip. 

(Park, January 23, 2021) 

U.S. Census Bureau. (2021, October 8a). 

Scientific Integrity. https://

www.census.gov/about/policies/quality/ 


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scientific_integrity.html. (US Census 

Bureau, October 8, 2021a) 

U.S. Census Bureau. (2021, October 8b). 

Statement of Commitment to Scientific 

Integrity by Principal Statistical 

Agencies. https://www.census.gov/ 

content/dam/Census/about/about-thebureau/policies_and_notices/ 

scientificintegrity/Scientific_Integrity_

Statement_of_the_Principal_Statistical_

Agencies.pdf. (US Census Bureau, 

October 8, 2021b) 

Walker C. (2013, January 22). Is Tidal Power 

a Viable Source of Energy? https://

www.azocleantech.com/article.aspx?

ArticleID=350. (Walker, January 22, 

2013) 

Washington Utilities and Transportation 

Commission (UTC). (2021, October 12). 

Eligible Telecommunications Carriers. 

https://www.utc.wa.gov/regulatedindustries/utilities/telecommunications/ 

federal-universal-service-funds/eligibletelecommunications-carriers. (UTC, 

October 12, 2021) 

V. Additional Requirements 

A. Regulatory Flexibility Act 

Whenever an agency is required by 

the Administrative Procedure Act, 5 

U.S.C. 553, or another law, to publish a 

general notice of proposed rulemaking, 

the Regulatory Flexibility Act (RFA), 5 

U.S.C. 601 et seq., requires the agency 

to prepare an initial regulatory 

flexibility analysis (IRFA). 5 U.S.C. 

601(2), 603(a). Since this ETS ‘‘shall 

serve as a proposed rule’’ for a final 

standard under section 6(c)(3) of the 

OSH Act, it is treated as a general notice 

of proposed rulemaking under the RFA. 

An agency may waive or defer the IRFA 

in the event a rule is promulgated in 

response to an emergency that makes 

compliance with the requirements of 

section 603 impracticable. 5 U.S.C. 

608(a). The agency hereby certifies that 

compliance with the IRFA requirement 

is impracticable under the 

circumstances. OSHA prepared this ETS 

on an expedited basis in response to a 

national emergency affecting the lives 

and health of the nation’s workers; the 

IRFA is inherently a relatively lengthy 

process that would be impracticable to 

undertake for a standard of such broad 

applicability in the limited time 

available. Because OSHA is not 

preparing an IRFA for the ETS, the 

agency is also not required to convene 

a small entity panel under section 

609(b). 

B. Unfunded Mandates Reform Act 

(UMRA), 2 U.S.C. 1501 et seq. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

2 U.S.C. 1532, requires agencies to 

assess the anticipated costs and benefits 

of a rule before issuing ‘‘any general 

notice of proposed rulemaking’’ that 

includes a Federal mandate that may 

result in expenditures in any one year 

by state, local, or Tribal governments, or 

by the private sector, of at least $100 

million, adjusted annually for inflation. 

The assessment requirement also 

applies to ‘‘any final rule for which a 

general notice of proposed rulemaking 

was published.’’ Although no general 

notice of proposed rulemaking was 

published, the agency has analyzed the 

ETS’s economic feasibility and health 

impacts in Section IV.B. of this 

preamble (Economic Analysis) and 

Health Impacts Appendix (OSHA, 

October 2021c). 

C. Executive Order 13175 

Section 5 of E.O. 13175, on 

Consultation and Coordination with 

Indian Tribal Governments, requires 

agencies to consult with tribal officials 

early in the process of developing 

regulations that: (1) Have tribal 

implications, that impose substantial 

direct compliance costs on Indian 

governments, and that are not required 

by statute; or (2) have tribal implications 

and preempt tribal law. 65 FR 67249, 

67250 (Nov. 6, 2000). E.O. 13175 

requires that such consultation occur to 

the extent practicable. Given the 

expedited nature of issuing the ETS, it 

was not practicable for OSHA to consult 

and incorporate non-federal input prior 

to promulgation of the standard. OSHA 

commits to meaningful consultation 

with tribal representatives after 

publication of the ETS and during the 

comment period before finalizing any 

permanent standard. Such consultation 

will be consistent with the 

Administrative Procedure Act. 

D. National Environmental Policy Act 

OSHA has reviewed this ETS 

according to the National 

Environmental Policy Act (NEPA) of 

1969, 42 U.S.C. 4321 et seq., the 

regulations of the Council on 

Environmental Quality, 40 CFR chapter 

V, subchapter A, and the Department of 

Labor’s NEPA procedures, 29 CFR part 

11. As a result of this review, the agency 

has determined that the rule will have 

no significant impact on air, water, or 

soil quality; plant or animal life; the use 

of land; or other aspects of the external 

environment. Although the ETS 

contains testing requirements, and test 

kits and supplies can generate some 

additional materials that will enter the 

waste stream, the impact of this ETS 

will be minimal. As discussed in more 

detail in Technological Feasibility 

(Section IV.A. of this preamble), there is 

already a surplus of available tests, and 

projected production of COVID–19 tests 

will be more than sufficient to meet 

demands for testing created as a result 

of the rule. Therefore, tests used for 

purposes of or for compliance with this 

ETS are not being produced as a result 

of this standard, and the standard will 

not generate significant new streams of 

waste beyond what would be generated 

in the absence of the standard. 

E. Congressional Review Act 

This ETS is considered a major rule 

under the Congressional Review Act 

(CRA), 5 U.S.C. 801 et seq. Section 

801(a)(3) of the CRA normally requires 

a 60-day delay in the effective date of 

a major rule. 5 U.S.C. 801(a)(3), 804(2). 

However, section 808(2) of the CRA 

allows the issuing agency to make a rule 

effective sooner than otherwise 

provided by the CRA if the agency 

makes a good cause finding that notice 

and public procedure are impracticable, 

unnecessary, or contrary to the public 

interest. 5 U.S.C. 808(2). OSHA finds 

that there is good cause to make this 

rule effective upon publication because 

notice and public procedure with 

respect to this ETS are both 

impracticable and contrary to the public 

interest, given the expedited timeline on 

which this standard was developed and 

the grave danger threatening workers’ 

lives and health (see Grave Danger and 

Need for the ETS, both in Section III. of 

this preamble). Congress authorized 

OSHA to take swift action in 

promulgating an ETS to address this 

type of grave danger, and provided 

explicitly that an ETS is effective upon 

publication, 29 U.S.C. 655(c)(1); 

delaying the effective date of such an 

expedited process would thwart that 

purpose. It is specifically because of the 

emergency nature of this rulemaking 

that the OSH Act allows for OSHA to 

proceed without the extensive public 

input the agency normally solicits in 

issuing occupational safety and health 

standards. 29 U.S.C. 655(c)(1). For rules 

to which section 808(2) applies, the 

agency may set the effective date. In this 

case, consistent with the OSH Act 

requirement cited above, the ETS takes 

immediate effect upon publication in 

the Federal Register. 

F. Administrative Procedure Act 

The Administrative Procedure Act 

(APA) normally requires notice and 

comment, and a 30-day delay of the 

effective date of a final rule, for 

recordkeeping and reporting regulations 

promulgated under section 8(c) of the 

OSH Act. 29 U.S.C. 657(c); 5 U.S.C. 

553(b), (d). This ETS contains 

recordkeeping and reporting 

requirements tailored to address 

COVID–19 illness. To the extent that 

these requirements are not already 


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exempt from the APA’s requirements for 

notice and comment under section 6(c) 

of the Act (29 U.S.C. 655(c)), OSHA 

invokes the ‘‘good cause’’ exemption to 

the APA’s notice requirement because 

the agency finds that notice and public 

procedure are impracticable and 

contrary to the public interest under 5 

U.S.C. 553(b)(B). As explained in more 

detail in Grave Danger and Need for the 

ETS (both in Section III. of this 

preamble), this finding is based on the 

critical importance of implementing the 

requirements in this ETS, including the 

recordkeeping and reporting provisions, 

as soon as possible to address the grave 

danger that COVID–19 presents to 

workers. 

As noted above, the ETS is required 

by the OSH Act to take immediate effect 

upon publication. 29 U.S.C. 655(c)(1). 

For that reason, and the underlying 

public health emergency that prompted 

this ETS as discussed above, OSHA 

finds good cause to waive the normal 

30-day delay in the effective date of a 

final rule from the date of its 

publication in the Federal Register. See 

5 U.S.C. 553(d)(3). OSHA notes, 

however, that OSHA does not require 

compliance with any provision of the 

ETS within the first 30 days after it 

becomes effective. 

G. Consensus Standards 

OSHA must consider adopting an 

existing national consensus standard 

that differs substantially from OSHA’s 

standard if the consensus standard 

would better effectuate the purposes of 

the Act. See section 12(d)(1) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C.A. 

272 Note); see also 29 U.S.C. 655(b)(8). 

OSHA considered incorporation of 

ASTM F3502–21 in this ETS, as 

required. However, the agency has 

insufficient evidence to make a general 

finding of feasibility at this time. The 

agency notes that face coverings that 

meet ASTM F3502–21 criteria also meet 

the definition of ‘‘face coverings’’ in this 

ETS (see the discussion of this issue in 

Summary and Explanation, Section VI. 

of this preamble). The agency has asked 

questions about this topic to gather 

additional information. 

H. Executive Order 13045 

Executive Order 13045, on Protection 

of Children from Environmental Health 

Risks and Safety Risks, requires that 

Federal agencies submitting covered 

regulatory actions to OIRA for review 

pursuant to Executive Order 12866 must 

provide OIRA with (1) an evaluation of 

the environmental health or safety 

effects that the planned regulation may 

have on children, and (2) an explanation 

of why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the agency (62 FR 19885 

(April 23, 1997)). Executive Order 13045 

defines ‘‘covered regulatory actions’’ as 

rules that may (1) be economically 

significant under Executive Order 

12866, and (2) concern an 

environmental health risk or safety risk 

that an agency has reason to believe may 

disproportionately affect children. 

Because OSHA has no reason to believe 

that the risk from COVID–19 

disproportionately affects children, the 

ETS is not a covered regulatory action 

and OSHA is not required to provide 

OIRA with further analysis under 

section 5 of the executive order. 

However, to the extent children are 

exposed to COVID–19 either as 

employees or at home as a result of 

family members’ workplace exposures 

to COVID–19, the ETS should provide 

some protection for children. 

I. Federalism 

The agency reviewed this ETS 

according to Executive Order 13132, on 

Federalism, which requires that Federal 

agencies, to the extent possible, refrain 

from limiting State policy options, 

consult with States before taking actions 

that would restrict States’ policy 

options, and take such actions only 

when clear constitutional authority 

exists and the problem is of national 

scope. 64 FR 43255 (August 10, 1999). 

The Executive Order generally allows 

Federal agencies to preempt State law 

only as provided by Congress or where 

State law conflicts with Federal law. In 

such cases, Federal agencies must limit 

preemption of State law to the extent 

possible. 

The Occupational Safety and Health 

Act is an exercise of Congress’s 

Commerce Clause authority, and under 

Section 18 of the Act, 29 U.S.C. 667, 

Congress expressly provided that States 

may adopt, with Federal approval, a 

plan for the development and 

enforcement of occupational safety and 

health standards. OSHA refers to States 

that obtain Federal approval for such 

plans as ‘‘State Plans.’’ Occupational 

safety and health standards developed 

by State Plans must be at least as 

effective in providing safe and healthful 

employment and places of employment 

as the Federal standards. As discussed 

below, State Plans must submit to 

Federal OSHA for approval, standards 

that differ from Federal standards 

addressing the same issues, in order for 

such standards to become part of the 

OSHA-approved State Plan. Subject to 

these requirements, State Plans are free 

to develop and enforce their own 

occupational safety and health 

standards. 

This ETS complies with E.O. 13132. 

The problems addressed by this ETS for 

COVID–19 are national in scope. As 

explained in Grave Danger (Section 

III.A. of this preamble), employees face 

a grave danger from exposure to 

COVID–19 in the workplace. Employees 

across the country face the danger of 

exposure to COVID–19 at work, and as 

explained in Need for the ETS (Section 

III.B. of this preamble), a national 

standard is needed to protect workers 

from the grave danger of COVID–19 by 

strongly encouraging vaccination and 

limiting the presence of COVID–19 

positive workers in the workplace 

through testing and to ensure that a 

clear and consistent baseline approach 

is taken across the country to protect 

them. The SARS–CoV–2 virus is highly 

communicable and infects workers 

without regard to state borders, making 

a national approach necessary. 

Accordingly, the ETS establishes 

minimum requirements for employers 

in every State to protect employees from 

the risks of exposure to COVID–19. 

In States without OSHA-approved 

State Plans, Congress provides for 

OSHA standards to preempt State 

occupational safety and health 

standards for issues addressed by the 

Federal standards. In these States, this 

ETS limits State policy options in the 

same manner as every standard 

promulgated by the agency. 

Furthermore, as discussed in the 

Summary and Explanation for Purpose, 

nothing in the ETS is intended to limit 

generally applicable public health 

measures instituted by state or local 

governments that go beyond, and are not 

inconsistent with, the requirements of 

the ETS. (See Summary and 

Explanation for Purpose, Section VI.A. 

of this preamble); Gade v. National 

Solid Wastes Management Ass’n, 505 

U.S. 88, 107 (1992). In States with 

OSHA-approved State Plans, this ETS 

does not significantly limit State policy 

options. Any special workplace 

problems or conditions in a State with 

an OSHA-approved State Plan may be 

dealt with by that State’s standard, 

provided the standard is at least as 

effective as this ETS. 

As discussed in the Summary and 

Explanation for Purpose in this 

preamble, OSHA has included a 

provision that states the purpose of this 

ETS, as well as OSHA’s intent to 

preempt all inconsistent State and local 

requirements that relate to the issues 

addressed by this ETS. (See section 

1910.501(a); Summary and Explanation 

for Purpose, Section VI.A. of this 

preamble). This includes State and local 


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79The ETS applies to agricultural establishments 

with 11 or more employees engaged on any day in 

hand-labor occupations in the field and agricultural 

establishments that maintain a temporary labor 

camp, regardless of how many employees are 

engaged on any day in hand-labor occupations in 

the field). 

requirements banning or limiting the 

authority of employers to require 

vaccination, face covering, or testing. As 

discussed in that section, such State and 

local bans would be preempted by this 

ETS, even in States with OSHAapproved State Plans, because such bans 

are not approved by federal OSHA as 

part of the State Plan and could not be 

approved, because such bans are clearly 

not as effective—and, indeed, are 

contrary to—the federal ETS. See 

Indust. Truck Ass’n v. Henry, 125 F.3d 

1305, 1311 (9th Cir. 1997). 

J. State Plans 

When Federal OSHA promulgates an 

emergency temporary standard, States 

and U.S. Territories with their own 

OSHA-approved occupational safety 

and health plans (‘‘State Plans’’) must 

either amend their standards to be 

identical or ‘‘at least as effective as’’ the 

new standard, or show that an existing 

State Plan standard covering this area is 

‘‘at least as effective’’ as the new Federal 

standard. 29 CFR 1953.5(b). This ETS 

imposes new requirements to protect 

workers across the nation from COVID– 

19. Adoption of this ETS, or an ETS that 

is at least as effective as this ETS, by 

State Plans must be completed within 

30 days of the promulgation date of the 

final Federal rule, and State Plans must 

notify Federal OSHA of the action they 

will take within 15 days. The State Plan 

standard must remain in effect for the 

duration of the Federal ETS. As noted 

above in Federalism (Section V.I. of this 

preamble), this ETS preempts all State 

and local requirements, including in 

States with State Plans, that ban or limit 

the authority of employers to require 

vaccination, face covering, or testing. 

(See also the Summary and Explanation 

for Purpose, Section VI.A. of this 

preamble). As with all non-identical 

State Plan standards, OSHA will review 

any comparable State standards to 

determine whether they are at least as 

effective as this ETS. A State Plan 

standard that prohibits employers from 

requiring vaccination would not be at 

least as effective as this ETS because 

OSHA has recognized in this ETS that 

vaccination is the most protective policy 

choice for employers to adopt to protect 

their workplaces. 

Of the 28 States and Territories with 

OSHA-approved State Plans, 22 cover 

both public and private-sector 

employees: Alaska, Arizona, California, 

Hawaii, Indiana, Iowa, Kentucky, 

Maryland, Michigan, Minnesota, 

Nevada, New Mexico, North Carolina, 

Oregon, Puerto Rico, South Carolina, 

Tennessee, Utah, Vermont, Virginia, 

Washington, and Wyoming. The 

remaining six States and Territories 

cover only state and local government 

employees: Connecticut, Illinois, Maine, 

New Jersey, New York, and the Virgin 

Islands. 

K. Paperwork Reduction Act 

I. Overview 

The Emergency Temporary Standard 

(ETS) for COVID–19 Vaccination and 

Testing contains collection of 

information requirements that are 

subject to review by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501, et seq., and 

OMB’s regulations at 5 CFR part 1320. 

The PRA defines a collection of 

information to mean the obtaining, 

causing to be obtained, soliciting, or 

requiring the disclosure to third parties 

or the public, of facts or opinions by or 

for an agency, regardless of form or 

format (44 U.S.C. 3502(3)(A)). OSHA 

has determined an ETS is necessary to 

protect workers from the grave danger 

posed by COVID–19 and is issuing an 

ETS that amends 29 CFR 1910 subpart 

U to provide COVID–19 protections to 

workers of employers with 100 or more 

employees. Section 1910.501 contains 

collections of information necessary to 

effectuate the purpose of the ETS. The 

collections of information appear in 

paragraphs 1910.501(d), (e)(2), (e)(4), 

(f)(1), (g)(1), (g)(4), (h)(1), (j), (k)(1), 

(k)(2), (l)(1), and (l)(2). For a more 

comprehensive discussion of these 

provisions, see the sectional analysis 

earlier in this preamble. These 

information collections are applied by 

cross reference to other industries in 

regulations 29 CFR 1915.1501 (Shipyard 

Employment), 1917.31 (Marine 

Terminals), 1918.110 (Longshoring), 

1926.58 (Construction), 1928.21 

(Agriculture).79

Under the PRA, a Federal agency 

cannot conduct or sponsor a collection 

of information unless OMB approves it 

and the agency displays a currently 

valid OMB control number (44 U.S.C. 

3507). Notwithstanding any other 

provision of law, if a collection of 

information does not display a currently 

valid control number, an employer shall 

not be subject to penalty for failing to 

comply with the collection of 

information (44 U.S.C. 3512). The PRA 

has special provisions for emergency 

situations that are applicable to this 

ETS. OMB may authorize a collection of 

information without regard to the 

normal clearance procedures if either (a) 

the relevant agency determines that the 

collection of information is essential to 

the mission of the agency and public 

harm is reasonably likely to result if 

normal clearance procedures are 

followed, or (b) the use of normal 

clearance procedures is reasonably 

likely to cause a statutory or court 

ordered deadline to be missed (44 

U.S.C. 3507(j) and 5 CFR 1320.13). 

Because COVID–19 presents an ongoing 

public health threat to workers and 

American businesses, OSHA has 

requested the use of these emergency 

procedures for this ETS. In accordance 

with 44 U.S.C. 3507(j)(1), OMB 

approved the request and assigned this 

ETS an OMB control number that is 

valid for 180 days. Therefore, the 

information collection provisions 

contained within this ETS will take 

effect at the same time as all other 

provisions. 

II. Summary of Information Collection 

Requirements 

This information collection is 

summarized as follows. 

1. Title: COVID–19 Vaccination and 

Testing Emergency Temporary Standard 

(29 CFR 1910, subpart U; 1915, subpart 

Z; 1917, subpart B; 1918, subpart K; 

1926, subpart D; 1928, subpart B). 

2. Type of Review: Emergency. 

3. OMB Control Number: 1218–0278. 

4. Affected Public: This rule applies to 

employers with a total of 100 or more 

employees except where the workplace 

is covered under the Safer Federal 

Workforce Task Force COVID–19 

Workplace Safety: Guidance for Federal 

Contractors and Subcontractors; or in 

setting where the employee provides 

healthcare services or healthcare 

support services that falls under the 

requirements of 29 CFR 1910.502. This 

rule does not apply to employees of 

covered employers who work from 

home, exclusively outdoors, or who do 

not report to a workplace where other 

individuals such as coworkers or 

customers are present. 

5. Description of the ICR. This ICR 

contains collections of information 

requirements for employers with 100 or 

more employees. The employer must 

establish, implement, and enforce a 

written mandatory vaccination policy 

that requires each employee to be fully 

vaccinated against COVID–19 unless the 

employer implements a policy that 

allows employees to choose between 

being fully vaccinated or both tested 

and wearing a face covering. Employers 

must determine employee vaccination 

status, and must require than any 

employees who are not vaccinated be 

tested for COVID–19 at least once every 


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80The Court held that the dual impact licensing 

statutes were preempted; however, no rationale 

commanded a majority. A four-justice plurality 

found that supplementary State regulation is 

impliedly preempted. Id. at 98–99. Justice 

Kennedy’s concurrence would have found express 

preemption rather than implied preemption, Id. at 

110–111, but otherwise agreed that ‘‘in the OSH 

statute Congress intended to pre-empt 

supplementary state regulation.’’ Id. at 113. 

7 days. Employers must provide 

specified information to employees 

regarding COVID–19 vaccine efficacy, 

safety, and the benefits of being 

vaccinated, and must maintain a record 

of the COVID–19 vaccination status, 

proof of vaccination, and copies of 

employee COVID–19 test results, and 

the aggregate number of fully vaccinated 

employees at a workplace along with 

the total number of employees at that 

workplace. 

6. Number of respondents: 1,858,935. 

7. Frequency: Varies. 

8. Number of Responses: 205,262,803. 

9. Estimated Burden Hours: 

79,720,444. 

10. Estimated Cost (Capital-operation 

and maintenance): $1,383,751,520. 

These totals are explained and 

supported in the agency’s Supporting 

Statement as required by the PRA. 

III. Request for Comment 

Although the ETS takes effect 

immediately, with implementation 

dates specified in the Dates provision of 

this publication, it also serves as a 

temporary standard that can only be 

made permanent following an 

opportunity for public notice and 

comment. OSHA therefore invites the 

public to submit comments to OSHA on 

the proposed collections of information 

with regard to the following. 

• Whether the proposed collections of 

information are necessary for the proper 

performance of the Agency’s functions, 

including whether the information is 

useful. 

• The accuracy of OSHA’s estimate of 

the burden (time and cost) of the 

collections of information, including the 

validity of the methodology and 

assumptions used. 

• The quality, utility, and clarity of 

the information collected. 

• Ways to minimize the compliance 

burden on employers, for example, by 

using automated or other technological 

techniques for collecting and 

transmitting information. 

Please submit comments related to the 

Paperwork Act analysis to OSHA in the 

PRA docket (Docket Number OSHA– 

2021–0008). Comments related to other 

parts of the ETS should be submitted to 

the rulemaking docket (Docket Number 

OSHA–2021–0007). OSHA will accept 

comments for 60 days on the 

information collection aspects of the 

rule. For instructions on submitting 

these comments to the rulemaking and/ 

or PRA docket, see the sections of this 

Federal Register notice titled DATES and 

ADDRESSES. 

References 

Occupational Safety and Health 

Administration (OSHA). (2021c, 

October). Health Impacts of the COVID– 

19 Vaccination and Testing ETS. (OSHA, 

October 2021c) 

VI. Summary and Explanation 

A. Purpose 

The ETS includes a sentence that 

states the purpose of the rule. The first 

part of the sentence in the paragraph 

indicates that the standard addresses the 

grave danger of COVID–19 in the 

workplace by establishing workplace 

vaccination, vaccination verification, 

face covering and testing requirements. 

The second part of the sentence 

addresses the preemption of State and 

local laws, regulations, executive orders, 

and other requirements, by this Federal 

standard. It indicates OSHA’s intention 

that the ETS address comprehensively 

the occupational safety and health 

issues of vaccination, wearing face 

coverings, and testing for COVID–19, 

and thus that the standard is intended 

to preempt States, and political 

subdivisions of States, from adopting 

and enforcing workplace requirements 

relating to these issues, except under the 

authority of a Federally-approved State 

Plan. In particular, OSHA intends to 

preempt any State or local requirements 

that ban or limit an employer’s authority 

to require vaccination, face covering, or 

testing. 

Preemption of such State and local 

requirements derives from section 18 of 

OSH Act and general principles of 

conflict preemption. See Gade v. 

National Solid Wastes Management 

Ass’n, 505 U.S. 88 (1992).80 Gade 

clarified two important principles. First, 

section 18 expresses Congress’ intent to 

preempt State workplace safety or 

health laws relating to issues on which 

Federal OSHA has promulgated 

occupational safety and health 

standards. Under section 18, a State can 

avoid preemption of such laws only if 

it submits and receives Federal approval 

for a State Plan for the development and 

enforcement of standards. OSHAapproved State Plans operate under 

authority of State law and must adopt 

occupational safety and health 

standards which, among other things, 

must be at least as effective in providing 

safe and healthful employment and 

places of employment as Federal 

standards. 29 U.S.C. 667. 

Second, State and local laws that do 

not constitute occupational safety or 

health laws because they are ‘‘laws of 

general applicability’’ that regulate 

workers and nonworkers alike are 

preempted only if they conflict with the 

federal standard. Laws of general 

applicability that are consistent with the 

federal standard are not preempted. 

Gade, 505 U.S. at 107. 

While section 18 applies to every 

occupational safety and health standard 

that OSHA promulgates, this ETS raises 

particular concerns because of the 

current landscape of existing State and 

local requirements that may overlap 

with, or directly conflict with, the 

requirements of this ETS. As discussed 

in Need for the ETS (Section III.B. of 

this preamble), OSHA is adopting this 

ETS in response to an unprecedented 

health crisis that has resulted in a global 

pandemic severely impacting the health 

and wellbeing of people in the United 

States, and globally. This ETS is issued 

based on OSHA’s determination that 

employees in the United States face a 

grave danger from workplace exposures 

to SARS–CoV–2, that the ETS is 

necessary to protect those workers, and 

that the measures for vaccination, 

vaccine verification, face coverings, and 

testing that this ETS requires will help 

ensure that workers covered by the ETS 

are protected from severe illness and 

death resulting from contracting 

COVID–19 in the workplace. 

As explained in Need for the ETS 

(Section III.B. of this preamble), the lack 

of a national standard on this hazard has 

led to disparate State and local 

requirements, and this underscores the 

need for OSHA’s ETS to provide clear 

and consistent protection to employees 

across the country. Over the past 

months, an increasing number of States 

have passed laws or enacted other 

requirements banning workplace 

vaccination policies that would 

mandate vaccination or require proof of 

vaccination status, thus prohibiting 

employers operating in those 

jurisdictions from implementing this 

proven method of protecting workers 

from the hazard of COVID–19 that is at 

the core of this ETS (see, e.g., Texas 

Executive Order GA–40, October 11, 

2021; Montana H.B. 702, July 1, 2021; 

Arkansas S.B. 739, October 4, 2021 and 

Arkansas H.B. 1977, October 1, 2021; 

AZ Executive Order 2021–18, Aug. 16, 

2021). While some States’ bans have 

focused on preventing local 

governments from requiring their public 

employees to be vaccinated or show 

proof of vaccination, the Texas, 

Montana, and Arkansas requirements 

apply to private employers as well. 

Likewise, some States and localities 


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81The express purposes of such requirements 

banning or limiting employers from requiring 

vaccination, face coverings, or testing may often not 

relate to occupational safety and health. For 

example, Governor Greg Abbott’s Texas face 

covering mandate ban in Executive Order GA–16, 

is based on alleged decreasing COVID–19 rates and 

the need to alleviate ‘‘confusion,’’ (Texas Executive 

Order GA–36, May 18, 2021); the stated purpose of 

Montana’s vaccination mandate ban is to address 

health care privacy interests (Montana H.B. 702, 

July 1, 2021). 

have enacted requirements that prohibit 

businesses, government offices, schools 

or other public spaces from requiring 

that face coverings be worn (see, e.g., 

Florida Executive Order 21–102, May 3, 

2021; Texas Executive Order GA–34, 

March 2, 2021; Texas Executive Order 

GA–36, May 18, 2021). State and local 

requirements that prohibit employers 

from implementing employee 

vaccination mandates, or from requiring 

face coverings in workplaces, serve as a 

barrier to OSHA’s implementation of 

this ETS, and to the protection of 

America’s workforce from this deadly 

virus. 

As discussed below, state restrictions 

of this kind are clearly preempted 

whether they take the form of direct 

workplace regulation or are part of a law 

of general applicability because they 

relate to the issues addressed by this 

standard and conflict with it. Gade, 505 

U.S. at 99, 107. As is also discussed 

below, this is true even for State or local 

requirements that may not prevent 

employers from compliance with the 

ETS, but that prescribe or limit the 

employer’s ability to mandate 

vaccination for its workforce as the 

employer’s chosen means of 

compliance. See Gade, 505 at 107; see 

also Geier v. American Honda, 529 U.S. 

861, 869, 875–886 (2000) (finding 

Department of Transportation (DOT) 

regulations preempted a State tort action 

where the state action ‘‘upset the careful 

regulatory scheme established by federal 

law’’ and placing weight on DOT’s 

interpretation that such tort suit would 

be ‘‘an obstacle to the accomplishment 

and execution’’ of Agency objectives). 

An employer’s choice to mandate 

vaccination is a critical aspect of this 

ETS, and state laws that remove that 

choice conflict with it. 

Thus, to ensure that the ETS 

supplants the existing State and local 

vaccination bans and other 

requirements that could undercut its 

effectiveness, and to foreclose the 

possibility of future bans, OSHA has 

clearly defined the issues addressed by 

this section to encompass vaccination, 

face covering, and testing needed to 

protect against transmission of COVID– 

19 to employees in the workplace. To 

avoid ambiguity, OSHA has stated 

expressly that it intends this ETS to 

preempt all State and local workplace 

requirements that ‘‘relate’’ to these 

issues, except pursuant to a State Plan. 

29 U.S.C. 667(b). 

The ‘‘unavoidable implication’’ of 

section 18 is that because OSHA has 

adopted this ETS, States may no longer 

regulate these issues except with 

OSHA’s approval and the authority of a 

Federally-approved State Plan. Gade, 

505 U.S. at 99. As the Court explained, 

section 18 preempts States without 

approved plans from adopting or 

enforcing any laws that constitute, ‘‘in 

a direct, clear and substantial way 

regulation of worker health and safety’’ 

relating to an issue addressed by an 

OSHA standard. Id. at 107. 

State and local requirements that ban 

or otherwise limit workplace 

vaccination, face covering, or testing 

clearly ‘‘relate’’ to the occupational 

safety and health ‘‘issues’’ that OSHA is 

regulating in this ETS. 29 U.S.C. 667(b). 

Such bans regulate key workplace 

COVID–19 protections that are 

encompassed by this ETS ‘‘in a direct, 

clear and substantial way.’’ Gade, 505 

U.S. at 107. The direct effect of such 

bans is to prohibit employers from 

requiring employees to implement 

measures, such as vaccination 

requirements, face coverings, or testing. 

These workplace protective measures 

are covered by, and, in many 

circumstances required by, this ETS. For 

example, vaccination mandate bans 

directed at employers specifically bar 

them from requiring employee 

vaccination requirements for the 

purposes of protecting their workforce. 

Prohibitions on face covering mandates 

likewise directly prohibit individuals in 

positions of authority, including 

employers, from requiring face covering 

use. 

Although the expressly stated 

purposes for State and local 

requirements banning or limiting 

employers from requiring vaccinations, 

face coverings, or testing may not be 

occupational safety and health,81 this 

does not control their preemption under 

section 18 of the OSH Act. In assessing 

State and local requirements’ impact on 

a federal statutory scheme, courts ‘‘have 

refused to rely solely on the legislature’s 

professed purpose and have looked as 

well to the effects of the law.’’ Gade, 505 

U.S. at 105; see also, e.g., Perez v. 

Campbell, 402 U. S. 637, 651–652 (1971) 

(‘‘[A]ny state legislation which frustrates 

the full effectiveness of federal law is 

rendered invalid by the Supremacy 

Clause’’); Napier v. Atlantic Coast Line 

R. Co., 272 U.S. 605, 612 (1926) (preemption analysis does not depend on 

whether federal and State laws ‘‘are 

aimed at distinct and different evils’’ 

but whether they ‘‘operate upon the 

same object’’). 

That a State has articulated a purpose 

other than, or in addition to, workplace 

health and safety would not divest the 

OSH Act of its preemptive force, 

because preemption law looks to the 

effects as well as the purpose of a State 

law, and thus a dual-impact State law 

cannot avoid OSH Act preemption 

simply because the regulation serves 

several objectives. Gade, 505 U.S. at 107 

(holding ‘‘a law directed at workplace 

safety is not saved from pre-emption 

simply because the State can 

demonstrate some additional effect 

outside of the workplace’’ and ‘‘[t]hat 

such law may also have a 

nonoccupational impact does not render 

it any less of an occupational standard 

for purposes of pre-emption analysis’’). 

Thus, to the extent that the stated 

purpose of a requirement that bans or 

limits employers from requiring 

vaccinations, face coverings, or testing 

is something other than, or in addition 

to, occupational health, such laws, 

which have a specific and direct impact 

on worker health, are nevertheless 

preempted. 

Further, section 18 preempts even 

‘‘nonconflicting’’ State and local 

occupational safety and health 

requirements relating to the issues 

addressed by this standard. Gade, 505 

U.S. at 98–99, 103; see id. at 100 (‘‘state 

laws regulating the same issue as federal 

laws are not saved, even if they merely 

supplement the federal standard’’). This 

is because OSHA ‘‘’pre-empts the field’ 

for any nonapproved State law 

regulating the same safety and health 

issue.’’ See Gade, 505 U.S. at 104, n. 2, 

citing English v. General Electric. Co., 

496 U.S. 72, 79–80, n.5 (‘‘[F]ield 

preemption may be understood as a 

species of conflict pre-emption: A State 

law that falls within a pre-empted field 

conflicts with Congress’ intent (either 

express or plainly implied) to exclude 

state regulation’’); see also id. at 105 

(discussing effect of field preemption). 

See generally Geier, 529 U.S. at 869, 

875–886 (finding State law preemption 

where it ‘‘upset the careful regulatory 

scheme established by federal law’’); 

Williamson v. Mazda Motor of Am., Inc., 

562 U.S. 323, 330–36 (2011) (affirming 

the conflict pre-emption principle that 

‘‘a state law that stands as an obstacle 

to the accomplishment and execution of 

the full purposes and objectives of a 

federal law is pre-empted’’ and finding 

preemption where State law interfered 

with ‘‘significant objective’’ of the 

federal regulation). 

For example, the ETS would preempt 

State or local governments from 


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82OSHA is aware that some States have adopted 

or are considering adopting such requirements, 

which this ETS would preempt (see, e.g., Arkansas 

S.B. 739, October 4, 2021 and Arkansas H.B. 1977, 

October 1, 2021, which Arkansas Governor Asa 

Hutchinson allowed to became law without his 

signature, and which require employers in Arkansas 

to allow employees to opt out of vaccination for 

purposes of complying with federal vaccination 

requirements; see also Governor Hutchinson, 

October 13, 2021; Marr, October 7, 2021 (describing 

the Arkansas legislation and noting that other states 

may contemplate similar legislation)). 

83OSHA’s Cranes and Derricks in Construction 

rule directly discussed its expectations and intent 

regarding the preemptive effect of the rule, 

including that it was not intended to preempt 

generally applicable municipal regulations, such as 

building codes, which serve public safety purposes. 

Cranes and Derricks in Construction, 75 FR 47,906, 

48,128 (August 9, 2010). This rule also includes a 

provision that requires employers to comply with 

State crane operator licensing requirements that 

meet the federal floor for crane operator 

certification in the rule. 29 CFR 1926.1427(c)(1). 

OSHA has also indicated that its rule would not 

preempt State or local requirements in other 

rulemakings. See e.g., 72 FR 7136, 7188 (Feb. 14, 

2007) (Preamble to OSHA’s most recent electrical 

safety standard) (‘‘State and local fire and building 

codes, which are designed to protect a larger group 

of persons than employees,’’ are not preempted); 29 

CFR 1910.134(e) (requiring compliance with State 

and local laws by requiring ‘‘a licensed health care 

professional’’ to perform a medical evaluation of an 

employee’s ability to use a respirator). 

dictating that employers adopt a scheme 

of testing and face coverings that 

complies with 1910.501(g) and (i) of the 

ETS, but that bars employers from 

electing the preferred vaccine mandate 

alternative in paragraph (d), because 

this interferes with OSHA’s significant 

regulatory objectives and its preemption 

of the field.82 (See Need for the ETS 

(Section III.B. of this preamble) 

discussing that vaccination is the 

preferred compliance option under this 

rule because it is the most effective 

method of protecting workers from 

COVID–19). Likewise, the ETS would 

preempt such State or local 

occupational requirements, even to the 

extent that they may regulate employers 

with fewer than 100 employees, 

notwithstanding that the requirements 

in this ETS only apply to employers 

with more than 100 employees. 

Case law is instructive on this point. 

In Gade, the Supreme Court found 

regulations implementing a State statute 

that required training for workers 

handling hazardous waste that went 

beyond, but did not conflict with, 

OSHA’s hazardous waste training 

requirements to be preempted by the 

OSHA requirements. Id. Likewise, in 

Industrial Truck Association 

Incorporated v. Henry, the Ninth Circuit 

found that OSHA’s hazard 

communication standard preempted 

California’s Hazard Communication 

regulations that were not submitted to 

OSHA for approval through its State 

Plan, even to the extent that California’s 

Hazard Communication rule regulated 

manufacturers and distributers who 

were excluded from coverage under 

federal OSHA’s rule. Indust. Truck 

Ass’n v. Henry, 125 F.3d 1305, 1311–14 

(9th Cir. 1997). In the same way, the 

ETS preempts all State and local 

requirements that bar or limit the ability 

of an employer to require workplace 

vaccination, testing, and face coverings 

to protected employees against COVID– 

19 in any respect, since OSHA has 

occupied the entire field of regulation 

on these issues. 

OSHA’s definition of the ‘‘issue’’ in 

this rule should be afforded weight, 

since the OSH Act vests OSHA with 

standard-setting responsibility and, 

therefore, the authority to determine 

which ‘‘issues’’ to address with 

occupational safety and health 

standards. See Indust. Truck, 125 F.3d 

at 1311 (relying on OSHA’s regulation 

and statements in the preamble to 

identify the relevant ‘‘issue’’ for 

preemption purposes in OSHA’s Hazard 

Communication standard). 

Importantly, although OSHA’s stated 

intention is to preempt conflicting State 

and local requirements relating to the 

issues addressed by this standard, 

OSHA recognizes that the OSH Act does 

not allow, and OSHA does not intend, 

for the ETS to preempt non-conflicting 

State or local requirements of general 

applicability. In Gade, the Supreme 

Court qualified its ruling by saving from 

preemption non-conflicting State and 

local ‘‘laws of general applicability 

(such as laws regarding traffic safety or 

fire safety) that do not conflict with 

OSHA standards and that regulate the 

conduct of workers and nonworkers 

alike.’’ Gade, 505 U.S. at 107. The 

Majority reasoned that, ‘‘[a]lthough 

some laws of general applicability may 

have a ‘direct and substantial’ effect on 

worker safety, they cannot fairly be 

characterized as ‘occupational’ 

standards, because they regulate 

workers simply as members of the 

general public.’’ Id. 

During the pandemic, many States 

and municipal governments have 

adopted requirements intended to 

protect public health by helping to 

prevent the spread of COVID–19 in 

public spaces. These have included 

requirements mandating face coverings 

in indoor public spaces, including 

businesses, government buildings, and 

schools (see, e.g., Baltimore City Health 

Department, August 10, 2021; Illinois 

Executive Order 2021–20, August 26, 

2021; Hawai’i Emergency Proclamation, 

October 1, 2021). In addition, in recent 

months, some States and municipal 

governments have adopted requirements 

mandating that members of the public 

provide proof of vaccination or recent 

COVID–19 testing in order to enter 

restaurants, bars, or other businesses or 

public spaces (see, e.g., NYC Emergency 

Executive Order 225, August 16, 2021 

(mandating COVID–19 vaccination for 

most individuals for indoor 

entertainment, recreation, dining and 

fitness settings)). Requirements such as 

these apply to ‘‘workers and nonworkers 

alike’’ and ‘‘regulate workers simply as 

member of the general public’’ and are 

accordingly not preempted. Gade, 505 

U.S.at 107. 

Based on OSHA’s observations and 

experience during the past year and a 

half that the pandemic has been 

ongoing, OSHA is confident that 

protective State and local regulations of 

general applicability that mandate face 

coverings or vaccination will 

complement, rather than interfere with 

OSHA’s enforcement of the ETS, and 

also does not intend to preempt such 

requirements. Indeed, OSHA believes 

that such measures have significantly 

reduced the harmful effects of the 

pandemic and total fatalities. See Steel 

Institute of NY v. The City of NY, 716 

F.3d 31, 38 (affording some weight to 

OSHA’s view that municipal regulations 

governing construction cranes did not 

interfere with OSHA’s regulatory 

scheme in its crane standards and 

ultimately adopted OSHA’s view in 

finding these municipal regulations 

were not preempted by OSHA crane 

standards).83

In Steel Institute, the Second Circuit 

held that OSHA’s crane regulations did 

not preempt New York City municipal 

regulations governing construction 

cranes, finding that such regulations 

were requirements of general 

applicability, notwithstanding their 

direct bearing on worker safety, because 

their primary purpose and effect was to 

preserve the safety of the general public, 

and they regulated workers and 

nonworkers alike. Id. The Steel Institute 

court noted the ‘‘strong presumption 

against preemption when states and 

localities ‘‘exercise[ ] their police 

powers to protect the health and safety 

of their citizens.’’ Id. at 36, citing 

Medtronic, Inc. v. Lohr, 518 U.S. 470, 

475 (1996). The Second Circuit was also 

influenced by the clear danger 

presented to the public by unsafe crane 

operation. This is analogous to the 

situation here, because exposure to 

COVID–19 is a hazard that directly 

impacts everyone. Thus, generally 

applicable State and local mandates 

requiring face coverings or vaccination 

should not be preempted and should 


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84 In addition, some State and local governments 

have adopted vaccination mandates directed at 

State and/or local government employees. The OSH 

Act and OSHA’s standards would not preempt such 

requirements since State or local government 

employers and employees are exempt from OSHA 

coverage under the OSH Act. 29 U.S.C. 652 (5) 

(defining employer to exclude ‘‘any State or 

political subdivision of a State’’). However, many 

State and local government employers in States 

with OSHA-approved State Plans will be covered 

by State occupational safety and health 

requirements, and State Plans must adopt 

requirements for State and local government 

employers, as well as covered private sector 

employers, that are at least as effective as federal 

OSHA’s requirements; State Plans may also choose 

to adopt more protective occupational safety and 

health requirements. 29 U.S.C. 667(c). 

85As previously discussed, bans on mandating 

vaccinations or face coverings have not typically 

been generally applicable, but even the least 

workplace-specific, most generally applied bans 

will not survive preemption because they directly 

interfere with the ETS’s regulatory scheme. 

86For example, Arizona has an OSHA-approved 

State Plan, but its vaccination ban, which is not part 

of its State Plan, is preempted by this ETS (see AZ 

Executive Order 2021–18, Aug. 16, 2021). 

remain in effect, notwithstanding this 

ETS.84

On the other hand, as noted above, 

this standard will preempt requirements 

that conflict with it, regardless of 

whether the requirements are part of a 

law of general applicability.85

The effect of the ETS on State law 

requirements in State Plan States works 

somewhat differently. As previously 

noted, under section 18 of the OSH Act 

States that wish to assume 

responsibility for the development and 

enforcement of ‘‘occupational safety and 

health standards relating to any 

occupational safety or health issue with 

respect to which a Federal standard has 

been promulgated’’ may submit a State 

Plan to OSHA for approval. Id. section 

667(b); see also id. section 667(c) 

(describing requirements for OSHA 

approval of State Plans on issues for 

which OSHA has adopted standards). 

There are 22 States and territories that 

have OSHA-approved State Plans for 

private employers, and 6 additional 

States and territories that have OSHAapproved State Plans for public 

employers only. 

Under section 18(c)(2) of the OSH 

Act, State Plans are required to adopt 

and enforce occupational safety and 

health standards that are at least as 

effective as federal OSHA’s 

requirements. Id. section 667(c)(2). In 

addition, the OSH Act requires that 

State Plans must cover State and local 

government employees (including, e.g., 

State and local school systems within 

the scope of this rule), even though 

federal OSHA does not have coverage 

over such employees in States without 

OSHA-approved State Plans. 

Once OSHA promulgates an ETS, 

OSHA’s regulations provide that those 

States have ‘‘30 days after the date of 

promulgation of the Federal standard to 

adopt a State emergency temporary 

standard,’’ or to demonstrate ‘‘that 

promulgation of an emergency 

temporary standard is not necessary 

because the State standard is already the 

same or at least as effective as the 

Federal standard change.’’ 29 CFR 

1953.5(b)(1). The new ETS becomes part 

of the OSHA-approved State Plan 

through the State Plan’s submission to 

OSHA documentation showing it 

adopted an identical ETS or a ‘‘Plan 

Change Supplement’’ showing that it 

has adopted requirements that are ‘‘at 

least as effective’’ as federal OSHA’s 

ETS. 29 CFR 1953.5(b)(3); 1953.4. 

Even in States with OSHA-approved 

State Plans, any State law relating to an 

occupational safety and health issue 

that OSHA regulates is preempted 

unless it is submitted for OSHA’s 

approval as a supplement to the State 

Plan. Indust. Truck Ass’n, 125 F.3d at 

1311 (‘‘If a State wishes to regulate an 

issue of worker safety for which a 

federal standard is in effect, its only 

option is to obtain the prior approval of 

the Secretary of Labor . . . [and] [i]t 

would make the state plan approval 

requirement superfluous if a state could 

pick and choose which occupational 

health and safety regulations to submit 

to OSHA’’). Thus, a State or local 

requirement banning or limiting 

employer vaccine mandates would 

similarly be preempted because it has 

not been approved by federal OSHA as 

part of the State Plan. And, indeed, it 

could not be approved by federal OSHA, 

because such bans or limitations 

undercut the ETS’s requirements and 

are clearly not as effective as the federal 

ETS. See 29 U.S.C. 667(c)(2).86

Finally, this provision includes a note 

that this section establishes minimum 

requirements for employers, that 

nothing in this section prevents 

employers from agreeing with their 

employees to implement additional 

measures, and that this section does not 

supplant collective bargaining 

agreements or other collectively 

negotiated agreements in effect that may 

have negotiated terms that exceed the 

requirements herein. It also references 

the National Labor Relations Act of 

1935, which protects most private-sector 

employees’ right to take collective 

action. The purpose of this note is to 

remind employers and employees that 

OSHA’s ETS establishes a floor for 

protections, and that it does not 

preclude bargaining for additional 

protective measures. For example, 

employers might agree to cover the costs 

of face coverings or medical removal, or 

to a requirement that all employees, 

regardless of vaccination status, wear 

face coverings while working indoors. 

References 

An Act Prohibiting Discrimination Based on 

a Person’s Vaccination Status or 

Possession of an Immunity Passport; 

Montana H.B. 702. (2021, July 1). https:// 

leg.mt.gov/bills/2021/billpdf/ 

HB0702.pdf. (Montana H.B. 702, July 1, 

2021) 

Arizona Executive Order 2021–18. (2021, 

August 16). https://azgovernor.gov/sites/ 

default/files/eo_2021–18.pdf. (AZ 

Executive Order 2021–18, August 16, 

2021) 

Arkansas H.B. 1977. (2021, October 1). To 

Provide Employee Exemptions From 

Federal Mandates and Employer 

Mandates Related to Coronavirus 2019 

(COVID–19); and to Declare an 

Emergency. https://

www.arkleg.state.ar.us/Bills/ 

FTPDocument?path=%

2FAMEND%2F2021R%2FPublic%

2FHB1977–H1.pdf. (Arkansas H.B. 1977, 

October 1, 2021) 

Arkansas S.B. 739. (2021, October 4). An Act 

Concerning Employment Issues Related 

to Coronavirus 2019 (COVID–19); To 

Provide Employee Exemptions From 

Federal Mandates and Employer 

Mandates Related to Coronavirus 2019 

(COVID–19); To Declare and Emergency; 

and For Other Purposes. https://

www.arkleg.state.ar.us/Bills/ 

FTPDocument?path=%

2FBills%2F2021R%

2FPublic%2FSB739.pdf. (Arkansas S.B. 

739, October 4, 2021) 

Arkansas Governor Asa Hutchinson. (2021, 

October 13). Press Release: Governor 

Hutchinson Allows Vaccine Mandate, 

Redistricting Bills to Become Law 

Without His Signature. https://governor.

arkansas.gov/news-media/pressreleases/governor-hutchinson-allowsvaccine-mandate-redistricting-bills-tobecome-la. (Governor Hutchinson, 

October 13, 2021) 

Baltimore City Health Department. (2021, 

August 10). Health Commissioner 

Updated Directive and Order for Face 

Coverings. https://www.baltimore

city.gov/sites/default/files/HEALTH%20

COMMISSIONER%

20AUGUST%2010,%202021%

20DIRECTIVE%20AND%

20ORDER%20FOR%

20FACE%20COVERINGS_FINAL.pdf. 

(Baltimore City Health Department, 

August 10, 2021) 

Emergency Executive Order 225. (2021, 

August 16). Key to NYC: Requiring 

COVID–19 Vaccination for Indoor 

Entertainment, Recreation, Dining and 

Fitness Settings. https://www1.nyc.gov/ 

office-of-the-mayor/news/225–001/ 

emergency-executive-order-225. (NYC 

Emergency Executive Order 225, August 

16, 2021) 

Florida Executive Order 21–102. (2021, May 

3). https://www.flgov.com/wp-content/ 


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87 If OSHA receives information suggesting that a 

broader scope would be appropriate, the agency 

could expand the scope of the ETS quickly through 

a supplemental action. Fla. Peach Growers Ass’n, 

Inc. v. U. S. Dep’t of Labor, 489 F.2d 120, 127 (5th 

Cir. 1974) (‘‘It is inconceivable that Congress, 

having granted the Secretary the authority to react 

quickly in fast-breaking emergency situations, 

intended to limit his ability to react to 

developments subsequent to his initial response.’’) 

uploads/orders/2021/EO_21–102.pdf. 

(Florida Executive Order 21–102, May 3, 

2021) 

Hawai’i Emergency Proclamation Related to 

the State’s COVID–19 Delta Response. 

(2021, October 1). https://governor.

hawaii.gov/wp-content/uploads/2021/ 

10/2109152–ATG_EmergencyProclamation-Related-to-the-StatesCOVID–19-Delta-Response-distributionsigned.pdf. (Hawai’i Emergency 

Proclamation, October 1, 2021) 

Illinois Executive Order 2021–20. (2021, 

August 26). https://www.illinois.gov/ 

government/executive-orders/executiveorder.executive-order-number20.2021.html. (Illinois Executive Order 

2021–20, August 26, 2021) 

Marr C. (2021, October 7). Workplace 

Vaccine Exemption Bills Sent to 

Arkansas Governor. Bloomberg Law. 

https://news.bloomberglaw.com/dailylabor-report/workplace-vaccineexemption-bills-sent-to-arkansasgovernor. (Marr, October 7, 2021) 

Texas Executive Order GA–34. (2021, March 

2). Executive Order No. GA–34 relating 

to the opening of Texas in response to 

the COVID–19 disaster. https://

open.texas.gov/uploads/files/ 

organization/opentexas/E.O.-GA–34- 

opening-Texas-response-to-COVIDdisaster-IMAGE–03–02–2021.pdf. (Texas 

Executive Order GA–34, March 2, 2021) 

Texas Executive Order GA–36. (2021, May 

18). Executive Order No. GA–36 relating 

to the prohibition of governmental 

entities and officials from mandating 

face coverings or restricting activities in 

response to the COVID–19 disaster. 

https://gov.texas.gov/uploads/files/ 

press/E.O.-GA–36_prohibition_on_

mandating_face_coverings_response_to_

COVID–19_disaster_IMAGE_05–18– 

2021.pdf. (Texas Executive Order GA– 

36, May 18, 2021) 

Texas Executive Order GA–40. (2021, 

October 11). Executive Order No. GA–40 

relating to prohibiting vaccine mandates, 

subject to legislative action. https://

gov.texas.gov/uploads/files/press/E.O.- 

GA–40_prohibiting_vaccine_mandates_

legislative_action_IMAGE_10–11– 

2021.pdf. (Texas Executive Order GA– 

40, October 11, 2021) 

B. Scope and Application 

Paragraph (b)(1) of this ETS provides 

that the ETS applies to all employers 

that have a total of at least 100 

employees at any time the ETS is in 

effect. OSHA has determined that the 

unvaccinated employees of these 

employers face a grave danger of 

exposure to SARS–CoV–2, including the 

Delta variant, while they are at work 

(see Grave Danger, Section III.A. of this 

preamble). Because this grave danger 

finding applies to all unvaccinated 

employees who come into contact with 

other people in indoor work settings as 

part of their employment, this ETS is 

not limited by industrial sector or 

NAICS code. Therefore, this standard 

generally covers employers in all 

workplaces that are under OSHA’s 

authority and jurisdiction, including 

industries as diverse as manufacturing, 

retail, delivery services, warehouses, 

meatpacking, agriculture, construction, 

logging, maritime, and healthcare. 

I. Decision To Limit Coverage of This 

ETS to Employers With 100 or More 

Employees 

This ETS applies to employers with a 

total of 100 or more employees at any 

time the standard is in effect. In light of 

the unique occupational safety and 

health dangers presented by COVID–19, 

and against the backdrop of the 

uncertain economic environment of a 

pandemic, OSHA established this 

coverage threshold for four reasons. 

First, OSHA is confident that employers 

with 100 or more employees will be able 

to meet the standard’s requirements 

promptly, as the emergency addressed 

by the standard necessitates. OSHA is 

less confident that smaller employers 

can do so without undue disruption. 

Second, this coverage threshold will 

enable the standard to reach two-thirds 

of all private-sector workers in the 

nation, providing them with prompt 

protection. Third, the standard will 

reach the largest facilities, where the 

most deadly outbreaks of COVID–19 can 

occur. Fourth, the 100-employee 

threshold in this standard is comparable 

with the size thresholds established by 

congressional and agency decisions in 

analogous contexts. 

a. Challenges to Feasibility Analysis for 

Small Businesses 

An OSHA standard, including an 

ETS, must be both economically and 

technologically feasible. A standard is 

economically feasible under the OSH 

Act if it neither threatens ‘‘massive 

dislocation to’’ nor upsets the 

‘‘competitive stability of’’ the regulated 

industries. United Steelworkers of Am., 

AFL–CIO–CLC v. Marshall, 647 F.2d 

1189, 1265 (D.C. Cir. 1980). 

Technological feasibility has been 

interpreted broadly to mean ‘‘capable of 

being done’’ Am. Textile Mfrs. Inst. v. 

Donovan, 452 U.S. 490, 509–510 (1981). 

As shown in Economic Analysis, 

Section IV.B. of this preamble, OSHA is 

confident that this standard is feasible 

for employers with 100 or more 

employees. OSHA is not at this time 

making any determination about 

whether it would be appropriate to 

extend the ETS to cover smaller 

employers. Put simply, the agency is 

requiring that employers it is confident 

can implement the provisions of the 

standard without delay do so. At the 

same time, the agency is soliciting 

public comment and seeking additional 

information to assess the ability of 

smaller employers to do so in the 

rulemaking commenced by this ETS. 

OSHA will determine the issue on the 

basis of the record, after receiving 

public comment.87 The SARS–CoV–2 

virus continues to spread rapidly, and 

each day that passes, tens of thousands 

more people are infected. The 

employees of larger firms should not 

have to wait for the protections of this 

standard while OSHA takes the 

additional time necessary to assess the 

feasibility of the standard for smaller 

employers. 

The pandemic has presented special 

challenges for small businesses. 

According to a survey conducted during 

its early stages, 66% of businesses with 

fewer than 100 employees had suffered 

revenues losses exceeding 30%. (SHRM, 

May 6, 2020a). By contrast, only 27% of 

larger businesses with more than 100 

employees had seen revenue drops of 

more than 30% (SHRM, May 6, 2020b). 

More recently, 61% of the members of 

the National Federation of Independent 

Businesses, mostly very small 

businesses, responded to a survey 

reported that they were experiencing 

staff shortages, with half of that group 

reporting a moderate to significant loss 

of sales because of unfilled positions 

(NFIB, July 12, 2021). 

The requirements of the ETS could 

have a differential impact on small 

businesses compared with larger firms. 

Many small businesses lack separate 

human resources departments and 

struggle to carry out HR functions. A 

study found that some 70% of small 

businesses (with 5 to 49 employees) 

handle HR tasks in an ad hoc way. 

(ADP, December 2016). Only 23% of ad 

hoc managers believed they had the 

tools and resources necessary to perform 

HR tasks well, and only 19% were fully 

confident in their ability to handle HR 

tasks without making mistakes (ADP, 

December 2016). Another survey found 

that HR functions are proportionally far 

more expensive for smaller firms than 

for larger (small firms defined as up to 

250 workers) (SHRM, 2015). The ETS 

requires employers to establish new 

systems to track vaccination status 

among workers, to keep related records, 

and for firms that allow the testing 

option, to keep records of each test. 


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88See, e.g., Oregon Health Authority, October 6, 

2021, (publishing data on outbreaks in large 

workplaces including two Amazon facilities, 

several hospitals, and a Walmart distribution 

center); CDPHE, Oct. 6, 2021, (identifying an active 

Covid outbreak in Cargill’s Fort Morgan, CO meat 

processing plant, which employs more than 2,000 

workers). While some have speculated that clusters 

of infections among employees at the same facility 

might result initially from shared exposures outside 

of work, the original source of the infection would 

have little bearing on the statistical probability of 

exposure and transmission once the infected people 

are together in the workplace with unvaccinated coworkers. The most effective way to prevent further 

transmission is to protect the other workers through 

vaccination or, when that is not possible, identify 

and remove the infected workers from the 

workplace as quickly as possible. 

These records must be treated as 

confidential medical records subject to 

detailed regulations, which is not 

something most smaller employers 

typically need to do or have existing 

systems in place to address. 29 CFR 

1910.1020. While OSHA has imposed 

similar requirements on smaller 

employers before, it has typically done 

so in highly regulated industries, such 

as healthcare, or in industries involving 

complicated industrial processes, which 

already require a certain degree of 

administrative capacity even when not 

responding to a grave danger, through a 

rulemaking process that provides 

additional time for notice and 

implementation, and when there is 

more time to assess the impact that the 

standard would have on small business. 

This emergency standard by contrast 

applies across the board to all 

industries, including less regulated 

retail and service sectors. 

Moreover, OSHA estimates that some 

5% of employees may have a medical 

contraindication or request an 

accommodation from the rule’s 

requirements for disability or sincerely 

held religious belief reasons. (Please see 

Economic Analysis, Section IV.B. of this 

preamble). Assessing these requests may 

require more resources for smaller firms 

with less experience in this area, 

particularly if they lack HR staff. By the 

same token, a delay in applying the ETS 

to businesses with fewer than 100 

employees would allow those 

businesses the benefit of learning from 

the models established by larger 

businesses with respect to 

accommodations. Similarly, 

implementing the ETS’s testing 

provisions in a stepwise fashion will 

allow OSHA the time necessary to 

assess any impact the new requirements 

may have on the testing infrastructure 

and related supply chains before 

considering extending those 

requirements to additional employers. 

b. The ETS Provides Prompt Protection 

for Most of America’s Workforce 

The 100 employee threshold means 

the ETS will reach two-thirds of the 

nation’s private sector workforce, 

providing protection to millions of 

workers while issues regarding smaller 

firms are reviewed. OSHA considered 

that a 100 employee threshold was 

superior to a 150 employee threshold in 

this respect, because it would protect 

more employees: 67% rather than 63%, 

which is a difference of 4.856 million 

workers. (U.S. Census Bureau, May 

2021). And while a 50 employee 

threshold would have covered more 

employees (78%), it would have 

required additional feasibility analysis, 

while still leaving many employees 

outside the standard. (U.S. Census 

Bureau, May 2021). 

c. The ETS Will Help Prevent Large 

Outbreaks of COVID–19 

The ETS’s focus on employers with 

more than 100 employees will also help 

prevent large-scale outbreaks. As 

addressed in more detail in the 

discussion of Grave Danger (Section 

III.A. of this preamble), all unvaccinated 

employees who work in indoor settings 

face a grave danger from COVID–19, 

which is why the scope of the ETS is 

not limited to worksites of a specific 

size. The standard is based on employer 

size primarily because administrative 

capacity is more closely related to 

employer size. In addition, employer 

size provides a clear measure that is 

easy for employers (and OSHA) to track, 

as opposed to an alternative such as a 

workplace-based approach, which could 

fluctuate from day to day and mean 

more places and information for the 

employer to track. But OSHA also chose 

the 100 employee size threshold in 

recognition of the fact that larger 

employers are more likely to have many 

employees gathered in the same 

location. For employers with 100 or 

more employees, the median number of 

employees at any one location is 

approximately 50 (the average is also 

50). (U.S. Census Bureau, May 2021). 

For employers with fewer than 100 

employees, the median number of any 

one location is approximately 2 (with an 

average number of 7) (U.S. Census 

Bureau, May 2021). 

Employees at larger locations are 

statistically more likely to be exposed to 

someone with COVID–19 during the 

course of their shifts, and thus face a 

heightened risk of virus transmission. 

Studies indicate that introduction of 

infection and the risk of infection 

transmission is increased with the size 

of a gathering (Champredon et al., April, 

2021), and with larger populations 

(Shacham et al., July 5, 2021). See also 

(Contreras et al., July, 2021) (concluding 

that outbreaks were larger and lasted 

longer at facilities with more onsite 

staff). It is therefore not surprising that 

significant COVID–19 outbreaks have 

occurred at large facilities of employers 

with 100 or more employees 88 (Oregon 

Health Authority, October 6, 2021; 

CDPHE, October 6, 2021). A study of 

outbreaks in Los Angeles County found 

that the median number of employees in 

an establishment in which an outbreak 

occurred was 95, well above the 50 

employee median for locations of 

employers covered by this rule, 

indicating that the rule will protect 

employees in the places where 

outbreaks are most likely to occur. 

(Contreras et al., July, 2021). And those 

outbreaks occurred even before the 

emergence of the SARS–CoV–2 Delta 

variant, which the CDC says ‘‘causes 

more infections and spreads faster than 

early forms of SARS–CoV–2.’’ (CDC, 

August 26, 2021) In fact, the studies 

noted earlier in this paragraph were 

published just as the Delta variant was 

emerging, meaning that the risk of 

transmission cited in those studies has 

likely increased. 

While virus transmission is certainly 

not limited to large facilities, the 

potential scope of an outbreak is 

inherently more limited when fewer 

employees are present. In limiting the 

scope of the ETS to employers with 100 

or more employees, OSHA is 

prioritizing coverage of those businesses 

in which the spread of the virus could 

potentially affect the largest number of 

employees and for which the agency is 

most confident that it is feasible to 

apply the standard. 

d. Analogous Regulatory Regimes Use 

Comparable Employee Size Thresholds 

Congress and federal agencies have 

frequently recognized that an employee 

size threshold may be appropriate in 

different regulatory contexts. They have 

not settled on any one number as the 

most appropriate, presumably because 

that depends on balancing different 

considerations that are relevant to the 

particular context, as OSHA has done 

here. But several analogous regulatory 

regimes use employee size thresholds 

comparable to the one selected here, in 

light of similar concerns about 

administrative feasibility. 

For example, the EEOC has issued 

regulations requiring employers with 

100 or more employees to submit 

annual reports related to equal 

employment opportunity in their 

workforce, in recognition that larger 

employers are better equipped to absorb 

the types of administrative burdens 


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imposed by surveying, tracking and 

recordkeeping requirements. See 42 

U.S.C. 2000e–8(c), 29 CFR 1602.7–.14 

and 41 CFR 60–1.7(a). In earlier 

measures adopted in response to the 

COVID–19 pandemic, Congress adopted 

special protections and exemptions 

based on employee counts. The Families 

First Coronavirus Response Act, Public 

Law 116–127 (2020), sections 7001 and 

7003 provided tax credits to businesses 

with fewer than 500 employees to assist 

compliance with the Act’s expansion of 

paid sick and family leave, in 

recognition of the challenges facing 

smaller employers. Congress again 

relied on the same 500 employee 

threshold when it later extended tax 

credits only to employers who granted 

employees paid time off to be 

vaccinated, implicitly acknowledging 

the financial obstacles that can exist for 

smaller employers for the same activity 

that this ETS promotes (and without the 

vaccine policy and verification 

requirement in this ETS). American 

Rescue Plan Act, Public Law 117–2, Sec. 

9641 (2021). 

In the Affordable Care Act, Congress 

set the maximum size of a ‘‘small 

employer’’ at 100 employees for 

purposes of allowing greater flexibility 

to these employers. 42 U.S.C.A. 

18024(b)(3). Likewise, private 

employers with fewer than 50 

employees are exempt from complying 

with the Family and Medical Leave Act, 

in recognition of smaller employers’ 

decreased administrative capacity, as 

well as their inability to easily 

accommodate employee absences. 29 

U.S.C.A. 2611(2)(b)(2). 

e. The 100 Employee Coverage 

Provision Is a Reasonable Exercise of the 

Secretary’s Authority 

OSHA’s choice of a 100 employee 

threshold is based on balancing the 

fundamentally incommensurable 

considerations described above. Under 

the statute OSHA ‘‘shall’’ issue an ETS 

when employees are exposed to grave 

danger, and is not to follow normal 

notice and comment procedures to build 

a record. 29 U.S.C. 655(e). But OSHA 

may not issue an ETS unless it shows 

that the rule is feasible for the 

employers covered, and it has not yet 

made a feasibility determination for 

smaller employers. In the circumstances 

of this case, OSHA considered that an 

ETS was urgently needed to protect 

employees, that a 100 employee 

threshold would protect the great 

majority of them and prevent the largest 

outbreaks, that it would avoid the 

delays that would be needed if the 

agency were required to gather 

information and analyze feasibility for 

smaller employers, and that a 

comparable size threshold has been 

found appropriate in similar contexts. 

Where employees are dying every day, 

it is not unreasonable for the agency to 

prioritize doing what it can to address 

the problem quickly, regardless of 

whether there are further actions it 

might be able to take later. 

Doing so implements the statutory 

delegation of authority to the agency to 

establish priorities for issuing standards 

by giving ‘‘due regard to the urgency of 

the need’’ for standards for particular 

workplaces. 29 U.S.C. 655(g). The courts 

have recognized that this provision 

authorizes the Secretary to make 

reasonable decisions limiting the scope 

of a standard, particularly where as here 

the agency has said it will address the 

reserved issue in subsequent 

rulemaking. Forging Indus. Assoc. v. 

Donovan, 773 F.2d 1436, 1454 (4th Cir. 

1985) (hearing conservation standard); 

United Steelworkers of Am. v. Marshall, 

647 F.2d 1189, 1309–1310 (D.C. Cir. 

1980) (lead standard). 

Where competing considerations are 

in play and there is no clear perfect 

choice, OSHA has a degree of discretion 

to draw a reasonable line. Courts have 

consistently recognized that agencies 

have discretion to draw reasonable 

lines. As the D.C. Circuit has explained: 

An agency has ‘‘wide discretion’’ in 

making line-drawing decisions and 

‘‘[t]he relevant question is whether the 

agency’s numbers are within a zone of 

reasonableness, not whether its numbers 

are precisely right.’’ WorldCom, Inc. v. 

FCC, 238 F.3d 449, 462 (D.C. Cir. 2001) 

(quotation marks omitted). An agency 

‘‘is not required to identify the optimal 

threshold with pinpoint precision. It is 

only required to identify the standard 

and explain its relationship to the 

underlying regulatory concerns.’’ Id. at 

461–62. Nat’l Shooting Sports Found. v. 

Jones, 716 F.3d. 200, 214–215 (D.C. Cir 

2013). See also Providence Yakima Med. 

Ctr. v. Sebelius, 611 F.3d 1181, 1190– 

1191 (9th Cir. 2010). 

For the reasons discussed above, the 

balance the agency struck here falls well 

within this zone of reasonableness. 

II. Explanation of Who Is Included in 

the 100-Employee Threshold 

The applicability of this ETS is based 

on the size of an employer, in terms of 

number of employees, rather than on the 

type or number of workplaces. In 

determining the number of employees, 

employers must include all employees 

across all of their U.S. locations, 

regardless of employees’ vaccination 

status or where they perform their work. 

Part-time employees do count towards 

the company total, but independent 

contractors do not. As discussed above, 

OSHA has not found that the standard 

is feasible for firms with fewer than 100 

employees, because it needs additional 

time to assess the impact of the standard 

on these employers, particularly as 

many smaller firms lack separate human 

resources departments and may face 

additional challenges when carrying out 

human resources functions. In contrast, 

OSHA has determined that the standard 

is feasible for firms with 100 or more 

employees, regardless of where those 

employees report to work. These firms 

generally have greater administrative 

capacities, and including all such 

employers in the scope of this ETS 

ensures that OSHA can cover two-thirds 

of all workers in the private sector as 

quickly as possible. 

For a single corporate entity with 

multiple locations, all employees at all 

locations are counted for purposes of 

the 100-employee threshold for coverage 

under this ETS. In a traditional 

franchisor-franchisee relationship in 

which each franchise location is 

independently owned and operated, the 

franchisor and franchisees would be 

separate entities for coverage purposes, 

such that the franchisor would only 

count ‘‘corporate’’ employees, and each 

franchisee would only count employees 

of that individual franchise. In other 

situations, two or more related entities 

may be regarded as a single employer 

for OSH Act purposes if they handle 

safety matters as one company, in which 

case the employees of all entities 

making up the integrated single 

employer must be counted. 

In scenarios in which employees of a 

staffing agency are placed at a host 

employer location, only the staffing 

agency would count these jointly 

employed workers for purposes of the 

100-employee threshold for coverage 

under this ETS. Although the staffing 

agency and the host employer would 

normally share responsibility for these 

workers under the OSH Act, this ETS 

raises unique concerns in that OSHA 

has set the threshold for coverage based 

primarily on administrative capacity for 

purposes of protecting workers as 

quickly as possible, as discussed above, 

and the staffing agency would typically 

handle administrative matters for these 

workers. Thus, for purposes of the 100- 

employee threshold, only the staffing 

agency would count the jointly 

employed employees. The host 

employer, however, would still be 

covered by this ETS if it has 100 or more 

employees in addition to the employees 

of the staffing agency. For enforcement 

purposes, traditional joint employer 

principles would apply where both 

employers are covered by the ETS, as 


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89Note that, in addition to the scope exceptions 

contained in the ETS itself, which are discussed in 

this section, there may be situations where the ETS 

does not apply by operation of the OSH Act. For 

example, the OSH Act does not apply to working 

conditions of employees with respect to which 

other Federal agencies have exercised their 

statutory authority to prescribe or enforce standards 

or regulations affecting occupational safety or 

health (see 29 U.S.C. 653(b)(1)). Moreover, the ETS 

does not apply where states with OSHA-approved 

occupational safety and health programs (‘‘State 

Plans’’) have coverage (see 29 U.S.C. 667). State 

Plans must adopt and enforce COVID–19 

requirements that are at least as effective as this 

ETS. Finally, the ETS does not apply to state and 

local government employers in states without State 

Plans (see 29 U.S.C. 652(5)). 

illustrated further by the examples 

below. See also https://www.osha.gov/ 

temporaryworkers/. 

On a typical multi-employer worksite 

such as a construction site, each 

company represented—the host 

employer, the general contractor, and 

each subcontractor—would only need to 

count its own employees, and the host 

employer and general contractor would 

not need to count the total number of 

workers at each site. That said, each 

employer must count the total number 

of workers it employs regardless of 

where they report for work on a 

particular day. Thus, for example, if a 

general contractor has more than 100 

employees spread out over multiple 

construction sites, that employer is 

covered under this ETS even if it does 

not have 100 or more employees present 

at any one worksite. Covering the 

employees of larger employers at multiemployer worksites would mitigate the 

spread of COVID–19 at the workplace 

even where not all employees are 

covered by this ETS because fully 

vaccinated employees (or unvaccinated 

employees wearing face coverings and 

submitting to weekly testing) would be 

less likely to spread the virus to 

unvaccinated workers at the site who 

are not covered by this ETS. 

The determination as to whether a 

particular employer is covered by the 

standard should be made separately 

from whether individual employees are 

covered by the standard’s requirements, 

as described by paragraph (b)(3) (e.g., 

some employers may be covered but 

have no duties with respect to some of 

their employees under this standard). 

Some additional examples include: 

• If an employer has 75 part-time 

employees and 25 full-time employees, 

the employer would be within the scope 

of this ETS because it has 100 

employees. 

• If an employer has 150 employees, 

100 of whom work from their homes 

full-time and 50 of whom work in the 

office at least part of the time, the 

employer would be within the scope of 

this ETS because it has more than 100 

employees. 

• If an employer has 102 employees 

and only 3 ever report to an office 

location, that employer would be 

covered. 

• If an employer has 150 employees, 

and 100 of them perform maintenance 

work in customers’ homes, primarily 

working from their company vehicles 

(i.e., mobile workplaces), and rarely or 

never report to the main office, that 

employer would also fall within the 

scope. 

• If an employer has 200 employees, 

all of whom are vaccinated, that 

employer would be covered. 

• If an employer has 125 employees, 

and 115 of them work exclusively 

outdoors, that employer would be 

covered. 

• If a single corporation has 50 small 

locations (e.g., kiosks, concession 

stands) with at least 100 total employees 

in its combined locations, that employer 

would be covered even if some of the 

locations have no more than one or two 

employees assigned to work there. 

• If a host employer has 80 

permanent employees and 30 temporary 

employees supplied by a staffing 

agency, the host employer would not 

count the staffing agency employees for 

coverage purposes and therefore would 

not be covered. (So long as the staffing 

agency has at least 100 employees, 

however, the staffing agency would be 

responsible for ensuring compliance 

with the ETS for the jointly employed 

workers.) 

• If a host employer has 110 

permanent employees and 10 temporary 

employees from a small staffing agency 

(with fewer than 100 employees of its 

own), the host employer is covered 

under this ETS and the staffing agency 

is not. 

• If a host employer has 110 

permanent employees and 10 employees 

from a large staffing agency (with more 

than 100 employees of its own), both the 

host employer and the staffing agency 

are covered under this standard, and 

traditional joint employer principles 

apply. 

• Generally, in a traditional 

franchisor-franchisee relationship, if the 

franchisor has more than 100 employees 

but each individual franchisee has fewer 

than 100 employees, the franchisor 

would be covered by this ETS but the 

individual franchises would not be 

covered. 

As explained earlier, part of OSHA’s 

rationale in adopting the 100-employee 

threshold is to focus the ETS on 

companies that OSHA is confident will 

have sufficient administrative systems 

in place to comply quickly with the 

ETS. Thus, the ETS applies to all 

employers who have the requisite 

number of employees at any time this 

ETS is in effect. Along with employers 

that always have more than 100 

employees, OSHA intends to cover 

employers that fluctuate above and 

below the 100-employee threshold 

during the term of the ETS because 

those employers will typically have 

already developed systems and 

capabilities for compliance; a decrease 

in the number of employees is therefore 

unlikely to make them less capable of 

compliance. 

The determination of whether an 

employer falls within the scope of this 

ETS based on number of employees 

should initially be made as of the 

effective date of the standard, as set out 

in paragraph (m)(1). If the employer has 

100 or more employees on the effective 

date, this ETS applies for the duration 

of the standard. If the employer has 

fewer than 100 employees on the 

effective date of the standard, the 

standard would not apply to that 

employer as of the effective date. 

However, if that same employer 

subsequently hires more workers and 

hits the 100-employee threshold for 

coverage, the employer would then be 

expected to come into compliance with 

the standard’s requirements. Once an 

employer has come within the scope of 

the ETS, the standard continues to 

apply for the remainder of the time the 

standard is in effect, regardless of 

fluctuations in the size of the 

employer’s workforce. For example, an 

employer that has 103 employees on the 

effective date of the standard, but then 

loses four within the next month, would 

continue to be covered by the ETS. 

OSHA is confident that employers with 

100 or more employees at any point 

while this ETS is in effect have the 

administrative capacity to comply with 

the ETS, even if the number of 

employees fluctuates somewhat above 

and below 100. 

Paragraph (b)(2) of this ETS sets forth 

two exemptions to the standard.89

Under paragraph (b)(2)(i), this ETS does 

not apply to workplaces covered by the 

Safer Federal Workforce Task Force 

COVID–19 Workplace Safety: Guidance 

for Federal Contractors and 

Subcontractors (see Safer Federal 

Workforce Task Force, September 24, 

2021). With limited exceptions, such as 

where a medical contraindication, 

disability, or sincerely held religious 

belief would prevent an employee from 

complying with certain provisions, 

those guidelines require covered 


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contractors to ensure that all covered 

contractor employees (1) are fully 

vaccinated by December 8, 2021; (2) 

follow CDC guidelines for masks and 

physical distancing, including masking 

and distancing requirements based on 

the employee’s vaccination status and 

the level of community transmission of 

COVID–19 where the workplace is 

located; and (3) designate a person to 

coordinate COVID–19 workplace safety 

efforts at covered workplaces. Because 

covered contractor employees are 

already covered by the protections in 

those guidelines, OSHA has determined 

that complying with this standard in 

addition to the federal contractor 

guidelines is not necessary to protect 

covered contractor employees from a 

grave danger posed by COVID–19. 

Although there may be some respects in 

which the OSHA standard is somewhat 

more protective, such as providing paid 

leave for vaccination, the federal 

contractor guidelines are somewhat 

more protective in other respects, such 

as requiring vaccination for everyone 

who does not have a right to an 

accommodation rather than allowing 

employees to submit to testing in lieu of 

vaccination. In essence, they are similar 

but slightly different schemes that 

provide roughly equivalent protection, 

and OSHA has determined that 

imposing a second set of similar 

protections on covered federal 

contractors by subjecting them to this 

ETS in addition to the federal contractor 

guidance is not necessary at this time to 

reduce a grave danger to covered 

contractor employees from COVID–19. 

Under Executive Order 14043, every 

federal agency must implement a 

program requiring each of its federal 

employees to be vaccinated against 

COVID–19, except as required by law. 

86 FR 50989. OSHA will regard a 

federal agency’s compliance with this 

requirement, and the related Safer 

Federal Workforce Task Force guidance 

issued under section 4(e) of Executive 

Order 13991 and section 2 of Executive 

Order 14043 (including guidance on 

employer support in the form of paid 

time for vaccination and paid leave for 

post-vaccination recovery), as sufficient 

to meet its obligation to comply with 

this ETS under Section 19 of the OSH 

Act and Executive Order 12196. In 

essence, the federal government has 

chosen the mandatory vaccination 

option of this rule, and all federal 

employees are required to be fully 

vaccinated by the compliance date of 

this standard, except where entitled to 

a reasonable accommodation. The Safer 

Federal Workforce Task Force’s 

guidelines for vaccination verification 

are consistent with the ETS’s (see Safer 

Federal Workforce Task Force, October 

11, 2021). Note, however, that under the 

OSH Act, the U.S. Postal Service is 

treated as a private employer, see 29 

U.S.C. 652(5), and it is therefore 

required to comply with this ETS in the 

same manner as any other employer 

covered by the Act. 

For similar reasons, paragraph 

(b)(2)(ii) provides that this ETS does not 

apply in settings where any employee 

provides healthcare services or 

healthcare support services while they 

are covered by the requirements of 29 

CFR 1910.502. Section 1910.502 

requires a multi-layered suite of 

protections for employees covered by its 

requirements, including patient 

screening and management, facemasks 

or respirators, other personal protective 

equipment (PPE), limiting exposure to 

aerosol-generating procedures, physical 

distancing, physical barriers, cleaning, 

disinfection, ventilation, health 

screening and medical management, 

access to vaccination, and medical 

removal protection. Section 1910.502 

was carefully tailored to the healthcare 

workplaces it covers and, given the full 

suite of protections it requires, 

including (like this ETS) the provision 

of paid time for vaccination, OSHA has 

determined that it adequately protects 

the employees covered by its 

requirements from the grave danger 

posed by COVID–19. Therefore, 

complying with the additional 

requirements of this ETS is not 

necessary to protect those employees 

while they are covered by that 

standard’s protections. 

OSHA’s intent was to leave no 

coverage gaps between section 1910.502 

and this ETS. In other words, the 

purpose of paragraph (b)(2)(ii) is to 

ensure that all workers in healthcare 

and healthcare support jobs who are at 

grave danger from exposure to SARSCoV–2 are protected by either section 

1910.502 or this ETS while performing 

their jobs. Therefore, it will be necessary 

for employers with employees covered 

by section 1910.502 to determine if they 

also have employees covered by this 

ETS. For example, a healthcare 

employer with more than 100 

employees that has non-hospital 

ambulatory care facilities that are 

exempt under section 1910.502(a)(2)(iii) 

(for non-hospital ambulatory care 

settings where all non-employees are 

screened prior to entry and those with 

suspected or confirmed COVID–19 are 

prohibited from entry) would be 

required to protect the employees in 

those ambulatory care facilities under 

this ETS. Similarly, a retail pharmacy 

chain that operates a series of 

ambulatory care clinics embedded in its 

stores, where those embedded clinics 

are the only areas in the store that are 

covered under 1910.502 (see section 

1910.502(a)(3)(i)), would have to ensure 

that the remainder of its employees in 

other parts of its stores are protected 

under this ETS if the company has 100 

or more employees company-wide, 

including those covered under 

1910.502. 

Paragraph (b)(3) provides that, even 

where the standard applies to a 

particular employer, its requirements do 

not apply to employees: (i) Who do not 

report to a workplace where other 

individuals such as coworkers or 

customers are present; (ii) while 

working from home; or (iii) who work 

exclusively outdoors. OSHA intends 

these provisions to exempt workplace 

settings where workers do not interact 

indoors with other individuals, and to 

exempt work performed in the 

employee’s home regardless of whether 

other individuals may be present in the 

home. 

OSHA has determined that the 

provisions of this ETS are not necessary 

to protect employees from COVID–19 

when they are working alone, or when 

they are working from home (see Grave 

Danger, Section III.A. of this preamble). 

These two provisions may overlap in 

some cases, but also can apply to 

slightly different situations. Paragraph 

(b)(3)(i) would apply to work in a 

solitary location, such as a research 

station where only one person (the 

employee) is present at a time. In that 

situation, the employee is not exposed 

to any potentially infectious individuals 

at work. Paragraph (b)(3)(ii) would 

apply to employees working in their 

homes, regardless of whether other 

individuals who are not employees of 

the same employer are present. In a 

home telework environment, many 

factors—such as the presence of family 

members and other individuals 

unrelated to the employee’s work, who 

may not be fully vaccinated or wearing 

face coverings—may be beyond the 

employer’s control. Employees are 

typically in the best position to manage 

COVID–19 risks in their homes. Note 

that the exemption in paragraph 

(b)(3)(ii) only applies to employees 

while they are working from home. An 

employee who switches back and forth 

from teleworking to working in a setting 

where other people are present (e.g., an 

office) is covered by this ETS and must 

be vaccinated if required by the 

employer. If the employer does not 

require vaccination, the teleworking 

employee must either be vaccinated or 

complete testing and wear a face 

covering in accordance with their 


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employer’s policy under paragraph (d). 

How often such an employee must be 

tested for COVID–19 and wear a face 

covering, however, depends on how 

often they report to the office (see, e.g., 

paragraph (g)(1)(ii)). 

Paragraph (b)(3)(iii) provides that, 

even if a particular employer is covered 

by the standard, the requirements of the 

standard do not apply to employees 

who work exclusively outdoors. OSHA 

has determined that COVID–19 does not 

pose a grave danger to employees who 

work exclusively outdoors because of 

the significantly reduced likelihood of 

transmission in outdoor settings. As 

discussed in more detail in Grave 

Danger (Section III.A. of this preamble), 

the record contains very little evidence 

of COVID–19 transmission in outdoor 

settings. And, in studies where clusters 

were identified in worksites 

characterized as being outdoors, the 

study authors were not able to identify 

specific incidents that led to 

transmission. In addition, workplaces 

characterized as ‘‘outdoors’’ may in fact 

involve significant time spent indoors. 

For example, on a construction site, 

workers inside a partially complete 

structure are not truly outdoors, and 

some individuals on a construction site 

may spend significant amounts of time 

in a construction trailer where other 

individuals are present. Workers at 

outdoor locations may also routinely 

share work vehicles. These indoor 

exposures could account for COVID–19 

clusters among employees at worksites 

otherwise characterized as being 

outdoors. And employees whose 

outdoor time is interrupted by the 

indoor periods will still be subject to the 

requirements in this ETS. 

Studies of athletic teams further 

indicate that evidence of COVID–19 

clusters among workers characterized as 

working outdoors could actually be 

caused by indoor exposures. Even 

where athletes were in very close 

contact during outdoor exposures on the 

playing field, the study authors could 

not identify a single case of COVID–19 

transmission between teams that 

occurred outdoors (see Mack et al., 

January 29, 2021; Egger et al., March 18, 

2021; Jones et al., February 11, 2021). 

For all of these reasons, and as 

discussed more fully in Grave Danger 

(Section III.A. of this preamble), OSHA 

has determined that COVID–19 does not 

pose a grave danger to employees who 

work exclusively outdoors. 

As a practical matter, determining the 

applicability of paragraph (b)(3)(iii) 

depends on the working conditions of 

individual employees. For example, if a 

landscaping contractor has at least 100 

employees and is not covered by the 

exemptions in paragraph (b)(2), the 

standard applies to that employer even 

if a majority of the company’s 

employees work exclusively outdoors. 

The standard’s protections would only 

apply to employees working in indoor 

settings around other individuals (other 

than telework in their own homes), not 

to those employees working exclusively 

outdoors. In some cases, it may be true 

that the standard applies to an employer 

but the employer would not have to 

implement its provisions at all because 

all of its employees fall within 

exemptions in paragraph (b)(3). Going 

back to the example of the large 

landscaping contractor, if all indoor 

workers either work from home or in 

locations where no other individuals are 

present, and all outdoors workers work 

exclusively outdoors and do not drive to 

worksites together in a company 

vehicle, the employer would be covered 

by the ETS but not required to comply 

with its provisions. 

An employee will only be covered by 

the exemption in paragraph (b)(3)(iii) if 

the employee works exclusively 

outdoors. Thus, an employee who works 

indoors on some days and outdoors on 

other days would not be exempt from 

the requirements of this ETS. Likewise, 

if an employee works primarily 

outdoors but routinely occupies 

vehicles with other employees as part of 

work duties, that employee is not 

covered by the exemption in paragraph 

(b)(3)(iii). However, if an employee 

works outdoors for the duration of every 

workday except for de minimis use of 

indoor spaces where other individuals 

may be present—such as a multi-stall 

bathroom or an administrative office— 

that employee would be considered to 

work exclusively outdoors and covered 

by the exemption under paragraph 

(b)(3)(iii) as long as time spent indoors 

is brief, or occurs exclusively in the 

employee’s home (e.g., a lunch break at 

home). Extremely brief periods of 

indoor work would not normally expose 

employees to a high risk of contracting 

COVID–19; however, OSHA will look at 

cumulative time spent indoors to 

determine whether that time is de 

minimis. Thus, if there are several brief 

periods in a day when an employee goes 

inside, OSHA will total those periods of 

time when determining whether the 

exception for exclusively outdoors work 

applies. 

Finally, to qualify for this exception, 

the employee’s work must truly occur 

‘‘outdoors,’’ which would not include 

buildings under construction where 

substantial portions of the structure are 

in place, such as walls and ceiling 

elements that would impede the natural 

flow of fresh air at the worksite. 

Workplaces that are truly outdoors 

typically do not include any of the 

characteristics that normally enable 

transmission of SARS–CoV–2 to occur, 

such as poor ventilation, enclosed 

spaces, and crowding. As discussed in 

Bulfone et al. (November 29, 2020), the 

lower risk of transmission in outdoor 

settings (i.e., open air or structures with 

only one wall) is likely due to increased 

ventilation with fresh air and a greater 

ability to maintain physical distancing 

(see Grave Danger, Section III.A. of this 

preamble, for more information on risk 

of transmission outdoors). 

References 

Always Designing for People (ADP). (2016, 

December). Opportunity is calling. 

Answer it. Insights and solutions for 

moving beyond risky ad hoc HR 

management. (ADP, December 2016) 

Bulfone TC et al. (2020, November 29). 

Outdoor Transmission of SARS-CoV–2 

and Other Respiratory Viruses: A 

Systematic Review. (2020). The Journal 

of Infectious Diseases 223: 550–561. 

https://doi.org/10.1093/infdis/jiaa742. 

(Bulfone et al., November 29, 2020) 

Centers for Disease Control and Prevention 

(CDC). (2021, August 26). Delta Variant: 

What We Know About the Science. 

https://www.cdc.gov/coronavirus/2019- 

ncov/variants/delta-variant.html?s_

cid=11512:cdc%20delta%20variant:sem.

ga:p:RG:GM:gen:PTN:FY21. (CDC, 

August 26, 2021) 

Champredon D et al. (2021, May 12). 

Modelling approach to assessing risk of 

transmission of SARS-CoV–2 at 

gatherings. https://www.canada.ca/en/ 

public-health/services/reportspublications/canada-communicabledisease-report-ccdr/monthly-issue/2021- 

47/issue-4-april-2021/assessing-risktransmission-sars-cov-2-gatherings.html. 

(Champredon et al., May 12, 2021) 

Colorado Department of Public Health and 

Environment (CDPHE). (2021, October 

6). CDPHE COVID–19 outbreak map 

updated October 6, 2021. https://

cdphe.maps.arcgis.com/apps/ 

webappviewer/index.html?id=

dcc0b993632a4bc68dc7b9a1dd015cfe. 

(CDPHE, October 6, 2021) 

Contreras Z et al. (2021, July). Industry 

Sectors Highly Affected by Worksite 

Outbreaks of Coronavirus Disease, Los 

Angeles County, California, USA, March 

19-September 30, 2020. Emerg Infect Dis. 

2021; 27(7): 1769–1775. doi:10.3201/ 

eid2707.210425. (Contreras et al., July, 

2021) 

Egger F et al. (2021, March 18). Does playing 

football (soccer) lead to SARS–CoV–2 

transmission?—a case study of 3 matches 

with 19 infected football players. Science 

and Medicine in Football. doi:10.1080/ 

24733938.2021.1895442. (Egger et al., 

March 18, 2021) 

Jones B et al. (2021, February 11). SARS– 

CoV–2 transmission during rugby league 

matches: do players become infected 

after participating with SARS–CoV–2 


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90Test sensitivity indicates the ability of a test to 

correctly identify people who have a disease. Test 

specificity indicates the ability of a test to correctly 

identify people who do not have a disease. A test 

with high sensitivity and high specificity minimizes 

inaccurate results. 

positive players? Br J Sports Med 

doi:10.1136/bjsports-2020–103714. 

(Jones et al., February 11, 2021) 

Mack CD et al. (2021, January 29). 

Implementation and evolution of 

mitigation measures, testing, and contact 

tracing in the national football league, 

August 9–November 21, 2020. MMWR 

70: 130–135. doi:http://dx.doi.org/ 

10.15585/mmwr.mm7004e2. (Mack et al., 

January 29, 2021) 

National Federation of Independent Business 

(NFIB) Research Center. (2021, July 12). 

Covid-19 small business survey (18): 

federal small business programs, the 

vaccine, labor shortage, and supply 

chain disruptions. https://

assets.nfib.com/nfibcom/Covid-19-18- 

Questionnaire.pdf. (NFIB, July 12, 2021) 

Oregon Health Authority. (2021, October 6). 

COVID–19 weekly outbreak report— 

October 6, 2021. https://

www.oregon.gov/oha/covid19/ 

Documents/DataReports/WeeklyOutbreak-COVID-19-Report.pdf. (Oregon 

Health Authority, October 6, 2021) 

Safer Federal Workforce Task Force. (2021, 

September 24). COVID–19 Workplace 

Safety: Guidance for Federal Contractors 

and Subcontractors. https://

www.saferfederal/workforce./gov/ 

downloads/Draft%/20contractor%/

20guidance%/20doc_20210922.pdf. 

(Safer Federal Workforce Task Force, 

September 24, 2021) 

Safer Federal Workforce Task Force. (2021, 

October 11). Vaccinations: Vaccination 

Documentation and Information. https:// 

www.saferfederalworkforce.gov/faq/ 

vaccinations/. (Safer Federal Workforce 

Task Force, October 11, 2021) 

Shacham E et al. (2021, July 5). Examining 

the relationship between COVID–19 

vaccinations and reported incidence. 

doi:https://doi.org/10.1101/ 

2021.06.30.21259794. (Shacham et al., 

July 5, 2021) 

Society for Human Resource Management 

(SHRM). (2015). How organizational staff 

size influences HR metrics. https://

www.shrm.org/resourcesandtools/ 

business-solutions/documents/ 

organizational%20staff%20size.pdf. 

(SHRM, 2015) 

Society for Human Resource Management 

(SHRM). (2020a, May 6). Navigating 

COVID–19: impact of the pandemic on 

small businesses. https://shrm.org/hrtoday/trends-and-forecasting/researchandsurveys/Documents/ 

SHRM%20CV19%20SBO%20Research%

20Presentation%20v1.1.pdf. (SHRM, 

May 6, 2020a) 

Society for Human Resource Management 

(SHRM). (2020b, May 6). Survey: 

COVID–19 could shutter most small 

businesses. https://www.shrm.org/aboutshrm/press-room/press-releases/pages/ 

survey-covid-19-could-shutter-mostsmall-businesses.aspx. (SHRM, May 6, 

2020b) 

United States (US) Census Bureau. (2021, 

May). 2017 SUSB Annual Data Tables by 

Establishment Industry, The annual data 

table titled ‘‘U.S. & states, NAICS, 

detailed employment sizes U.S., 6-digit 

and states, NAICS sector,’’ https://

www.census.gov/data/tables/2017/econ/ 

susb/2017-susb-annual.html. (US Census 

Bureau, May 2021) 

C. Definitions 

Paragraph (c) of the ETS provides 

definitions of terms used in the section. 

‘‘Assistant Secretary’’ means the 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, or designee. This 

definition provides clarification about 

who can request and receive records 

specified in paragraph (l)(3) of this 

section. A designee includes a 

representative conducting an inspection 

or an investigation. 

‘‘COVID–19 (Coronavirus Disease 

2019)’’ means the disease caused by 

SARS–CoV–2 (severe acute respiratory 

syndrome coronavirus 2). SARS–CoV–2 

is a highly transmissible virus that 

spreads primarily through the 

respiratory droplets that are produced 

when an infected person coughs, 

sneezes, sings, talks, or breathes. The 

nature of the disease, variants of SARS– 

CoV–2, disease transmission, and 

associated health effects are all 

described in great detail in Grave 

Danger (Section III.A. of this preamble). 

For clarity and ease of reference, the 

ETS also uses the term ‘‘COVID–19’’ 

when describing exposures or potential 

exposures to SARS–CoV–2. The 

requirements of the ETS are intended to 

address the grave danger of exposure to 

COVID–19 in the workplace. 

A ‘‘COVID–19 test’’ means a test for 

SARS–CoV–2 that is: (1) Cleared, 

approved, or authorized, including in an 

Emergency Use Authorization (EUA), by 

the U.S. Food and Drug Administration 

(FDA) to detect current infection with 

the SARS–CoV–2 virus (e.g., a viral 

test); (2) administered in accordance 

with the authorized instructions; and (3) 

not both self-administered and self-read 

unless observed by the employer or an 

authorized telehealth proctor. Examples 

of tests that satisfy this requirement 

include tests with specimens that are 

processed by a laboratory (including 

home or on-site collected specimens 

which are processed either individually 

or as pooled specimens), proctored overthe-counter tests, point of care tests, and 

tests where specimen collection and 

processing is either done or observed by 

an employer. 

Under paragraph (g), employees who 

are not fully vaccinated must be tested 

for COVID–19. When an employee must 

be tested, the test is considered 

acceptable only if the test and the 

administration of the test satisfy the 

definition of COVID–19 test in this 

standard. 

COVID–19 tests can broadly be 

divided into two categories, diagnostic 

tests and antibody tests. Diagnostic tests 

detect parts of the SARS–CoV–2 virus 

and can be used to diagnose current 

infection. On the other hand, antibody 

tests look for antibodies in the immune 

system produced in response to SARS– 

CoV–2, and are not used to diagnose an 

active COVID–19 infection. Antibody 

tests do not meet the definition of 

COVID–19 test for the purposes of this 

ETS. 

Diagnostic tests for current infection 

fall into two categories: Nucleic acid 

amplification tests (NAATs) and antigen 

tests. NAATs are a type of molecular 

test that detect genetic material (nucleic 

acids); NAATs for COVID–19 identify 

the ribonucleic acid (RNA) sequences 

that comprise the genetic material of the 

virus. NAATs can reliably detect small 

amounts of SARS–CoV–2 and are 

unlikely to return a false-negative result. 

NAATs use many different methods to 

detect the virus, including reverse 

transcription-polymerase chain reaction 

(RT–PCR), which is a high-sensitivity, 

high-specificity 90 test for diagnosing 

SARS–CoV–2 infection. Other types of 

NAATs that use isothermal 

amplification methods include nicking 

endonuclease amplification reaction 

(NEAR), transcription mediated 

amplification (TMA), loop-mediated 

isothermal amplification (LAMP), 

helicase-dependent amplification 

(HDA), clustered regularly interspaced 

short palindromic repeats (CRISPR), and 

strand displacement amplification 

(SDA) (CDC, June 14, 2021). 

Most NAATs need to be processed in 

a laboratory with variable time to 

receive results (approximately 1–2 

days), but some NAATs are point-ofcare tests with results available in about 

15–45 minutes. As of October 14, 2021, 

264 molecular tests (NAATs) and 

collection devices have EUA from the 

FDA for COVID–19 (FDA, October 14, 

2021b). These tests may be acceptable 

under the ETS. 

Antigen tests may also meet the 

definition of COVID–19 test under this 

standard. Antigen tests indicate current 

infection by detecting the presence of a 

specific viral antigen. Most can be 

processed at the point of care with 

results available in about 1530 minutes. 

Antigen tests generally have similar 

specificity to, but are less sensitive than, 

NAATs (CDC, October 7, 2021). As of 

October 14, 2021, thirty-seven antigen 


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tests have EUA from the FDA for 

COVID–19 (FDA, October 14, 2021a). 

These tests may be acceptable under the 

ETS. 

Most antigen tests and some NAATs 

are conducted at the point of care, 

which means the test processing and 

result reading is performed at or near 

the place where a specimen is collected 

so that results can be obtained within 

minutes rather than hours or days. 

Rapid point-of-care tests are 

administered in various settings 

operating under a Clinical Laboratory 

Improvement Amendments of 1988 

(CLIA) certificate of waiver, such as 

physician offices, urgent care facilities, 

pharmacies, school health clinics, 

workplace health clinics, long-term care 

facilities and nursing homes, and at 

temporary locations, such as drivethrough sites managed by local health 

organizations (FDA, November 16, 

2020). 

To be a valid COVID–19 test under 

this standard, a test may not be both 

self-administered and self-read unless 

observed by the employer or an 

authorized telehealth proctor. OSHA 

included the requirement for some type 

of independent confirmation of the test 

result in order to ensure the integrity of 

the result given the ‘‘many social and 

financial pressures for test-takers to 

misrepresent their results’’ (Schulte et 

al., May 19, 2021). This independent 

confirmation can be accomplished in 

multiple ways, including through the 

involvement of a licensed healthcare 

provider or a point-of-care test provider. 

If an over-the-counter (OTC) test is 

being used, it must be used in 

accordance with the authorized 

instructions. The employer can validate 

the test through the use of a proctored 

test that is supervised by an authorized 

telehealth provider. Alternatively, the 

employer could proctor the OTC test 

itself. 

Employers have the flexibility to 

select the testing scenario that is most 

appropriate for their workplace. Some 

employees and employers may rely on 

testing that is conducted by a healthcare 

provider (e.g., doctor or nurse) who 

arranges for the specimen to be analyzed 

at a laboratory or at a point-of-care 

testing location (e.g., a pharmacy). The 

involvement of licensed or accredited 

healthcare providers allows employers 

to have a high degree of confidence in 

the suitability of the test and the test 

results. Some large employers who set 

up their own on-site testing program 

may partner with a healthcare 

organization (e.g., a local hospital or 

clinic) or rely on a licensed healthcare 

provider to help obtain a CLIA 

certificate of waiver. Other employers 

may simply require that employees 

perform and read their own OTC test 

while an authorized employee observes 

the administration and reading of the 

test to ensure that a new test kit was 

used and that the test was administered 

properly (e.g., nostrils were swabbed), 

and to witness the test result. 

Due to the potential for employee 

misconduct (e.g., falsified results), tests 

that are both self-administered and selfread are not acceptable unless they are 

observed by the employer or an 

authorized telehealth proctor. Some 

COVID–19 tests are authorized by the 

FDA to be performed only with the 

supervision of a telehealth proctor, 

which is someone who is trained to 

observe sample collection and provide 

instructions and result interpretation 

assistance to individuals using the test. 

The term ‘‘authorized telehealth 

proctor’’ refers to proctors who follow 

the requirements for proctoring 

specified by the FDA authorization. For 

a more detailed discussion on COVID– 

19 testing requirements under this ETS, 

see the Summary and Explanation for 

paragraph (g) (Section VI.G. of this 

preamble). 

A ‘‘face covering’’ means a covering 

that: (1) Completely covers the nose and 

mouth; (2) is made with two or more 

layers of a breathable fabric that is 

tightly woven (i.e., fabrics that do not let 

light pass through when held up to a 

light source); (3) is secured to the head 

with ties, ear loops, or elastic bands that 

go behind the head. If gaiters are worn, 

they should have two layers of fabric or 

be folded to make two layers; (4) fits 

snugly over the nose, mouth, and chin 

with no large gaps on the outside of the 

face; and (5) is a solid piece of material 

without slits, exhalation valves, visible 

holes, punctures, or other openings. 

This definition includes clear face 

coverings or cloth face coverings with a 

clear plastic panel that, despite the noncloth material allowing light to pass 

through, otherwise meet this definition 

and which may be used to facilitate 

communication with people who are 

deaf or hard-of-hearing or others who 

need to see a speaker’s mouth or facial 

expressions to understand speech or 

sign language respectively. Face 

coverings can be manufactured or 

homemade, and they can incorporate a 

variety of designs, structures, and 

materials. Face coverings provide 

variable levels of protection based on 

their design and construction. 

As explained in paragraph (i), face 

covering use is required based on an 

employee’s vaccination status. The 

criteria in the definition help to ensure 

that face coverings that are worn by 

workers who are not fully vaccinated 

will provide effective source control and 

some degree of personal protection. 

Source control means reducing the 

spread of large respiratory droplets to 

others by covering a person’s mouth and 

nose. The personal protection afforded 

by face coverings, as well as the benefits 

and necessity, are described in the 

Summary and Explanation for 

paragraph (i) (Section VI.I. of this 

preamble). 

Face coverings differ from facemasks 

and respirators, which are also defined 

in paragraph (c) of this section. Face 

coverings, unlike facemasks and 

respirators, are not considered to be 

personal protective equipment (PPE) 

under OSHA’s general PPE standard (29 

CFR 1910.132), as discussed in the 

Summary and Explanation for 

paragraph (i) (Section VI.I. of this 

preamble). 

Lastly, face coverings as required by 

this standard do not have to meet a 

consensus standard, although face 

coverings that adhere to such consensus 

standards, with design and construction 

specifications, meet the definition and 

may offer both greater protection and 

the confidence that at least a minimum 

level of protection has been provided. 

The National Institute for Occupational 

Safety and Health (NIOSH) recommends 

that employers and workers who want 

a face covering that provides a known 

level of protection use face coverings 

that meet a new standard, called 

Workplace Performance and Workplace 

Performance Plus masks, for 

workplaces. As discussed in the 

Summary and Explanation for 

paragraph (i) (Section VI.I. of this 

preamble), the new NIOSH criteria and 

the ASTM Specification for Barrier Face 

Coverings, F3502–21 (ASTM Standard) 

provide a greater level of source control 

performance for workers when wearing 

the face covering according to 

manufacturer’s instructions. The NIOSH 

criteria require that face coverings 

conform to the ASTM Standard and 

meet additional quantitative leakage 

criteria. Although not required by the 

standard, OSHA notes that face 

coverings that meet ASTM F3502–21 

requirements and the new NIOSH 

criteria may offer a higher level of 

source control and wearer protection 

than those face coverings that do not 

meet a consensus standard. 

A ‘‘facemask’’ means a surgical, 

medical procedure, dental, or isolation 

mask that is FDA-cleared, authorized by 

an FDA EUA, or offered or distributed 

as described in an FDA enforcement 

policy. Facemasks may also be referred 

to as ‘‘medical procedure masks.’’ This 

definition provides clarification about 

the exception to the face covering 


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91As defined by CDC’s informational document, 

Summary Document for Interim Clinical 

Considerations for Use of COVID–19 Vaccines 

Currently Authorized in the United States (CDC, 

September 29, 2021). 

requirement under paragraph (i)(1)(iii) 

that permits facemask use in lieu of face 

coverings. OSHA notes that facemasks 

are not respirators, which are also 

defined in this section. 

Facemasks provide protection against 

exposure to splashes, sprays, and spatter 

of body fluids. Facemasks offer both 

source control, as defined in this section 

under face coverings, and protection for 

the wearer. OSHA has previously 

established that facemasks are essential 

PPE for employees in healthcare, under 

both the general PPE standard (29 CFR 

part 1910.132) and the Bloodborne 

Pathogens standard (29 CFR part 

1910.1030). Although not required, the 

Summary and Explanation for 

paragraph (i) (Section VI.I. of this 

preamble) addresses their inclusion in 

this standard. Additional information 

on such facemasks can be found in 

relevant FDA guidance. 

‘‘Fully vaccinated’’ means (i) a 

person’s status 2 weeks after completing 

primary vaccination with a COVID–19 

vaccine with, if applicable, at least the 

minimum recommended interval 

between doses in accordance with the 

approval, authorization, or listing that 

is: (A) Approved or authorized for 

emergency use by the FDA; (B) listed for 

emergency use by the World Health 

Organization (WHO); or (C) 

administered as part of a clinical trial at 

U.S. site, if the recipient is documented 

to have of primary vaccination with the 

‘‘active’’ (not placebo) COVID–19 

vaccine candidate, for which vaccine 

efficacy has been independently 

confirmed (e.g., by a data and safety 

monitoring board) or if the clinical trial 

participant from the U.S. sites had 

received a COVID–19 vaccine that is 

neither approved nor authorized for use 

by the FDA but is listed for emergency 

use by the WHO. Currently-authorized 

FDA vaccines include Janssen (Johnson 

& Johnson), which is a single-dose 

primary vaccination, and PfizerBioNTech and Moderna, which have a 

two-dose primary vaccination series. 

This definition is consistent with the 

CDC definition of fully vaccinated (CDC, 

September 16, 2021). 

The definition of ‘‘fully vaccinated’’ 

also means a person’s status 2 weeks 

after receiving the second dose of any 

combination of two doses of a COVID– 

19 vaccine that is approved or 

authorized by the FDA, or listed as a 

two-dose series by the WHO (i.e., 

heterologous primary series of such 

vaccines, receiving doses of different 

COVID–19 vaccines as part of one 

primary series). The second dose of the 

series must not be received earlier than 

17 days (21 days with a 4-day grace 

period) after the first dose (CDC, 

October 15, 2021). OSHA has included 

this because people who have received 

a heterologous primary vaccination 

series (including mixing of mRNA, 

adenoviral, and mRNA plus adenoviral 

products) are considered by the CDC to 

also meet this definition. OSHA 

considers a vaccination series that meets 

the definition in subparagraph (ii) to be 

a primary vaccination for purposes of 

the requirements to support vaccination 

in paragraph (f). 

The employer obligations under the 

ETS differ based on whether each 

employee is fully vaccinated. This 

definition is relevant to the definition of 

mandatory vaccination policy, in this 

paragraph (c), as well as the provisions 

under paragraph (d) regarding written 

vaccination policy requirements and 

relevant procedures for workers who are 

fully vaccinated. Paragraph (e)(2) also 

addresses fully vaccinated employees, 

including the determination of 

vaccination status and acceptable forms 

of proof. Lastly, the definition provides 

clarity with regard to the requirements 

of paragraphs (g) and (i) respectively, 

which contain requirements for regular 

COVID–19 testing and face covering use 

among employees who are not fully 

vaccinated. 

Paragraph (e) requires employers to 

determine each employee’s vaccination 

status, including whether they are fully 

or partially vaccinated. By ‘‘partially 

vaccinated,’’ OSHA means someone 

who has started a primary vaccination 

series but not completed it (e.g., has 

received one dose of a two-dose series) 

or has completed their primary 

vaccination and two weeks have not 

elapsed since the last dose of the 

primary vaccination. 

A ‘‘mandatory vaccination policy’’ is 

an employer policy requiring each 

employee to be fully vaccinated. To 

meet the definition of a mandatory 

vaccination policy, the policy must 

require: Vaccination of all employees, 

including vaccination of all new 

employees as soon as practicable, other 

than those employees (1) for whom a 

vaccine is medically contraindicated, (2) 

for whom medical necessity requires a 

delay in vaccination,91 or (3) who are 

legally entitled to a reasonable 

accommodation under federal civil 

rights laws because they have a 

disability or sincerely held religious 

beliefs, practices, or observances that 

conflict with the vaccination 

requirement. OSHA intends that 

‘‘employee,’’ as used in this definition, 

includes only employees that are 

covered by this ETS and does not 

include employees who are excluded 

from coverage under paragraph (b)(3). 

Paragraph (d)(1) of the standard 

requires an employer to establish, 

implement, and enforce a written 

mandatory vaccination policy that 

meets this definition. The benefits of 

vaccination, including the effectiveness 

of vaccination mandates, are discussed 

in Grave Danger (Section III.A. of this 

preamble) and Need for the ETS 

(Section III.B. of this preamble). 

OSHA recognizes that vaccination 

policies may vary, as indicated in 

paragraph (d)(2). Any policy that 

permits the employee to choose between 

vaccination and COVID–19 testing and 

face covering use would not be 

considered a mandatory vaccination 

policy under paragraph (d)(1), although 

such policy is permissible under 

paragraph (d)(2). In some cases, 

employers may implement vaccination 

policies that differ by location or type of 

business operation and thus the 

application of paragraph (d)(2) might 

vary across an employer’s workforce. 

This is discussed in greater detail in the 

Summary and Explanation for 

paragraph (d) (Section VI.D. of this 

preamble). 

A ‘‘respirator’’ is a type of PPE that is 

certified by NIOSH under 42 CFR part 

84 or is authorized under an EUA by the 

FDA. These specifications are intended 

to ensure some consistent level of 

testing, approval, and protection and to 

prevent the use of counterfeit respirators 

that will not offer adequate protection, 

which is important because respirators 

are intended to protect the wearer when 

directly exposed to hazards. Respirators 

protect against airborne hazards by 

removing specific air contaminants from 

the ambient (surrounding) air or by 

supplying breathable air from a safe 

source. Common types of respirators 

include filtering facepiece respirators 

(e.g., N95), elastomeric respirators, and 

powered air-purifying respirators 

(PAPRs). Face coverings, facemasks, and 

face shields are not respirators. 

As stated above, there are various 

types of respirators that would fall 

within this definition. A filtering 

facepiece respirator (FFR) is a negativepressure particulate respirator with a 

non-replaceable filter as an integral part 

of the facepiece or with the entire 

facepiece composed of the nonreplaceable filtering medium. N95 FFRs 

are the most common type of FFR and 

are the type of respirator most often 

used to control exposures to infections 

transmitted via the airborne route. 

When properly worn, N95 FFRs filter at 

least 95% of airborne particles. An 


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elastomeric respirator is a tight-fitting 

respirator with a facepiece that is made 

of synthetic or rubber material that 

permits it to be disinfected, cleaned, 

and reused according to the 

manufacturer’s instructions. Elastomeric 

respirators are equipped with 

replaceable cartridges, canisters, or 

filters. Lastly, a powered air-purifying 

respirator (PAPR) is an air-purifying 

respirator that uses a blower to force the 

ambient air through air-purifying 

elements to the inlet covering. 

This standard does not require the use 

of respirators. This definition is 

included because it relates to paragraph 

(i)(1)(iii), which exempts employees 

from wearing face coverings when they 

are wearing respirators or facemasks. In 

addition, paragraph (i)(4) requires 

employers to permit employees to wear 

a respirator instead of a face covering 

and permits employers to provide 

respirators to their employees, instead 

of face coverings. When respirators are 

used pursuant to paragraph (i)(4), the 

employer must also comply with 

§ 1910.504, the Mini Respiratory 

Protection Program. 

NIOSH has developed a set of 

regulations in 42 CFR part 84 for testing 

and certifying non-powered, airpurifying, particulate-filter respirators. 

To help address concerns about 

availability during the COVID–19 

pandemic, the FDA has issued EUAs for 

certain PPE products, including 

respiratory protective devices such as 

respirators. For the purposes of this 

standard, respirators certified by 

NIOSH, under 42 CFR part 84 or 

authorized under an EUA by the FDA 

meet the definition. Additional 

information on such respirators can be 

found in relevant FDA and NIOSH 

guidance. 

A ‘‘workplace’’ is a physical location 

(e.g., fixed, mobile) where the 

employer’s work or operations are 

performed. It does not include an 

employee’s residence, even if the 

employee is teleworking from their 

residence. Examples of fixed locations 

include: Offices, retail establishments, 

co-working facilities, and factories or 

manufacturing facilities. A workplace 

includes the entire site (including 

outdoor and indoor areas, a structure or 

a group of structures) or an area within 

a site where work or any work-related 

activity occurs (e.g., taking breaks, going 

to the restroom, eating, entering or 

exiting work). The workplace includes 

the entirety of any space associated with 

the site (e.g., workstations, hallways, 

stairwells, breakrooms, bathrooms, 

elevators) and any other space that an 

employee might occupy in arriving, 

working, or leaving. Examples of 

employees who have mobile workplaces 

include maintenance and repair 

technicians who go to homes or 

businesses to provide repair services, or 

those who provide delivery services. 

References 

Centers for Disease Control and Prevention 

(CDC). (2021, June 14). Nucleic Acid 

Amplification Tests. https://

www.cdc.gov/coronavirus/2019-ncov/ 

lab/naats.html. (CDC, June 14, 2021). 

Centers for Disease Control and Prevention 

(CDC). (2021, September 16). When 

You’ve Been Fully Vaccinated: How to 

Protect Yourself and Others. https://

www.cdc.gov/coronavirus/2019-ncov/ 

vaccines/fully-vaccinated.html. (CDC, 

September 16, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, September 29). Summary 

Document for Interim Clinical 

Considerations for Use of COVID–19 

Vaccines Currently Authorized in the 

United States. https://www.cdc.gov/ 

vaccines/covid-19/downloads/summaryinterim-clinical-considerations.pdf. 

(CDC, September 29, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, October 7). Interim 

Guidance for SARS–CoV–2 Testing in 

Non-Healthcare Workplaces. https://

www.cdc.gov/coronavirus/2019-ncov/ 

community/organizations/testing-nonhealthcare-workplaces.html. (CDC, 

October 7, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, October 15). Interim Public 

Health Recommendations for Fully 

Vaccinated People. https://www.cdc.gov/ 

coronavirus/2019-ncov/vaccines/fullyvaccinated-guidance.html. (CDC, 

October 15, 2021) 

Equal Employment Opportunity Commission 

(EEOC). (2021, October 25). What You 

Should Know About COVID–19 and the 

ADA, the Rehabilitation Act, and Other 

EEO Laws. https://www.eeoc.gov/wysk/ 

what-you-should-know-about-covid-19- 

and-ada-rehabilitation-act-and-othereeo-laws. (EEOC, October 25, 2021) 

Food and Drug Administration (FDA). (2020, 

November 16). COVID–19 Test Settings: 

FAQs on Testing for SARS–CoV–2. 

https://www.fda.gov/medical-devices/ 

coronavirus-covid-19-and-medicaldevices/covid-19-test-settings-faqstesting-sars-cov-2. (FDA, November 16, 

2020) 

Food and Drug Administration (FDA). 

(2021a, October 14). In Vitro Diagnostics 

EUAs—Antigen Diagnostic Tests for 

SARS–CoV–2. https://www.fda.gov/ 

medical-devices/coronavirus-disease2019-covid-19-emergency-useauthorizations-medical-devices/in-vitrodiagnostics-euas-antigen-diagnostictests-sars-cov-2. (FDA, October 14, 

2021a) 

Food and Drug Administration (FDA). 

(2021b, October 14)). In Vitro Diagnostics 

EUAs—Molecular Diagnostic Tests for 

SARS–CoV–2. https://www.fda.gov/ 

medical-devices/coronavirus-disease2019-covid-19-emergency-useauthorizations-medical-devices/in-vitrodiagnostics-euas-molecular-diagnostictests-sars-cov-2. (FDA, October 14, 

2021b) 

Schulte P et al. (2021, May 19). Proposed 

Framework for Considering SARS–CoV– 

2 Antigen Testing of Unexposed 

Asymptomatic Workers in Selected 

Workplaces. J Occup Environ Med. 2021 

Aug; 63(8): 646–656. Published online 

2021, May 19. https://

www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC8327768/. (Schulte et al., May 19, 

2021) 

D. Employer Policy on Vaccination 

Vaccination is a vital tool to reduce 

the presence and severity of COVID–19 

cases in the workplace, in communities, 

and in the nation as a whole. Despite 

the robust protection against COVID–19 

that vaccination affords, millions of 

eligible individuals have not yet been 

vaccinated. Current efforts to increase 

the proportion of the U.S. population 

that is fully vaccinated against COVID– 

19 are critical to ending the COVID–19 

pandemic (CDC, September 15, 2021). 

As described more fully in Need for the 

ETS (Section III.B. of this preamble), 

mandatory vaccination policies work. 

Therefore, OSHA has determined that 

requiring or strongly encouraging 

vaccination—the most effective and 

efficient control for reducing COVID– 

19—is key to ensuring the protection of 

workers against the grave danger of 

exposure to SARS–CoV–2 in the 

workplace (see Grave Danger, Section 

III.A. of this preamble). Therefore, this 

ETS requires employers to adopt 

mandatory vaccination policies for their 

workplaces, with an exception for 

employers that instead adopt a policy 

allowing employees to elect to undergo 

regular COVID–19 testing and wear a 

face covering at work in lieu of 

vaccination. In Need for the ETS 

(Section III.B of this preamble), OSHA 

explains its rationale for providing the 

exception. 

Paragraph (d) of this ETS is a critical 

element in ensuring employees’ 

protection, as it requires covered 

employers to develop, implement, and 

enforce written policies on COVID–19 

vaccination for their workforces. 

Paragraph (d)(1) requires the employer 

to establish, implement, and enforce a 

written mandatory vaccination policy. 

As defined in paragraph (c), a 

mandatory vaccination policy is an 

employer policy requiring each 

employee to be fully vaccinated. Such a 

policy must require vaccination of all 

employees, other than those employees 

who fall into one of three categories: (1) 

Those for whom a vaccine is medically 

contraindicated, (2) those for whom 

medical necessity requires a delay in 


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vaccination, or (3) those who are legally 

entitled to a reasonable accommodation 

under federal civil rights laws because 

they have a disability or sincerely held 

religious beliefs, practices, or 

observances that conflict with the 

vaccination requirement. The policy 

must also require all new employees to 

be vaccinated as soon as practicable. 

Paragraph (d)(2) is a limited 

exemption from the mandatory 

vaccination policy requirement. As 

discussed in Need for the ETS (Section 

III.B. of this preamble), vaccination 

mandates are effective at increasing 

overall vaccination rates and protecting 

employees and, therefore, the agency 

encourages all employers to implement 

a mandatory vaccination policy. Under 

paragraph (d)(2), however, employers 

can avoid the mandate in paragraph 

(d)(1) if the employer establishes, 

implements, and enforces a written 

policy allowing any employee not 

subject to a mandatory vaccination 

policy to choose either to: (1) Be fully 

vaccinated against COVID–19 or (2) 

provide proof of regular testing for 

COVID–19 in accordance with 

paragraph (g) of this section and wear a 

face covering in accordance with 

paragraph (i). An employer who chooses 

to operate under paragraph (d)(2), 

however, must still offer the support for 

vaccination required under paragraph (f) 

and may not prevent employees from 

getting vaccinated. Adopting a policy 

under paragraph (d)(2) simply means 

that employees themselves may choose 

not to get vaccinated, in which case they 

must get tested and wear face coverings 

per the requirements of the standard. 

OSHA recognizes there may be 

employers who develop and implement 

partial mandatory vaccination policies, 

i.e., that apply to only a portion of their 

workforce. An example might be a retail 

corporation employer who has a 

mixture of staff working at the corporate 

headquarters, performing intermittent 

telework from home, and working in 

stores serving customers. In this type of 

situation, the employer may choose to 

require vaccination of only some subset 

of its employees (e.g., those working in 

stores), and to treat vaccination as 

optional for others (e.g., those who work 

from headquarters or who perform 

intermittent telework). This approach 

would comply with the standard so long 

as the employer complies in full with 

paragraph (d)(1) and (d)(2) for the 

respective groups. 

OSHA uses the terms establish, 

implement, and enforce in paragraph (d) 

to emphasize that it is necessary for an 

employer to first determine its policy 

and create a written record of that 

policy. After determining the policy, an 

employer must then ensure that it is 

following the policy, as laid out in its 

written plan. Finally, employers must 

ensure that they enforce the 

requirements of their policies with 

respect to their workforce, through 

training and the use of such 

mechanisms as work rules and the 

workplace disciplinary system, if 

necessary. These requirements apply to 

the written policy required under 

paragraph (d), whether employers 

choose to implement the mandatory 

vaccination policy under paragraph 

(d)(1) or utilize the exemption under 

paragraph (d)(2) for all or a portion of 

their workforce. 

To ensure that employers’ vaccination 

policies under paragraph (d) are 

comprehensive and effective, the 

policies should address all of the 

applicable requirements in paragraphs 

(e)–(j) of this standard, including: 

Requirements for COVID–19 

vaccination; applicable exclusions from 

the written policy (e.g., medical 

contraindications, medical necessity 

requiring delay in vaccination, or 

reasonable accommodations for workers 

with disabilities or sincerely held 

religious beliefs); information on 

determining an employee’s vaccination 

status and how this information will be 

collected (as described in paragraph (e)); 

paid time and sick leave for vaccination 

purposes (as described in paragraph (f)); 

notification of positive COVID–19 tests 

and removal of COVID–19 positive 

employees from the workplace (as 

described in paragraph (h)); information 

to be provided to employees (pursuant 

to paragraph (j)—e.g., how the employer 

is making that information available to 

employees); and disciplinary action for 

employees who do not abide by the 

policy. In addition to addressing the 

requirements of paragraphs (e)–(j) of this 

standard, the employer should include 

all relevant information regarding the 

policy’s effective date, who the policy 

applies to, deadlines (e.g., for 

submitting vaccination information, for 

getting vaccinated), and procedures for 

compliance and enforcement, all of 

which are necessary components of an 

effective plan. Having a comprehensive 

written policy will provide a solid 

foundation for an effective COVID–19 

vaccination program, while making it 

easier for employers to inform 

employees about the program-related 

policies and procedures, as required 

under paragraph (j)(1). 

If an employer utilizes the exemption 

under paragraph (d)(2), its workplace 

may contain employees who are 

vaccinated and unvaccinated. This 

might be the case even for employers 

who establish a mandatory vaccination 

policy under paragraph (d)(1); for 

example, an employer with a mandatory 

vaccination policy might have 

employees who cannot be vaccinated for 

medical reasons. Given the additional 

safety protocols under this standard for 

individuals who are not fully vaccinated 

(see paragraphs (g) and (i)), an employer 

who has both vaccinated and 

unvaccinated employees will have to 

develop and include the relevant 

procedures for two sets of employees in 

the written policy. The procedures for 

those who are fully vaccinated should 

contain all the information previously 

discussed relevant to establishing, 

implementing, and enforcing a 

comprehensive written policy. 

However, the procedures applicable to 

employees who are not fully vaccinated 

(i.e., those who decline vaccination, 

those who are unable to receive 

vaccination and are, absent undue 

hardship to their employers, entitled to 

reasonable accommodation) and those 

who are unable to provide proof of 

vaccination as required by paragraph (e) 

(who must be treated as not fully 

vaccinated), must include COVID–19 

testing and face covering use as required 

by paragraphs (g) and (i), respectively, 

unless the reasonable accommodation 

from vaccination removes the employee 

from the scope of § 1910.501 (e.g., full 

time telework consistent with one of the 

exceptions in § 1910.501(b)(3)). OSHA 

intends that such an employer will 

develop one written plan that includes 

different policies and procedures for 

vaccinated and unvaccinated 

employees. The requirements of 

paragraphs (e), (f), (h), and (j) should be 

addressed in the policy regardless of the 

vaccination requirements adopted by 

the employer. 

As with all elements of the written 

plan, an effective written plan will 

explain the testing requirements 

contained in paragraph (g) for 

unvaccinated employees, and how the 

employer will implement and enforce 

those policies. As described in 

paragraph (g)(1), the testing 

requirements differ for employees who 

report at least once every 7 days to a 

workplace compared to those who do 

not. Thus, the policy may describe 

different testing procedures for those 

different groups of employees, 

depending on how often they physically 

report to a workplace where other 

individuals are present. As described in 

paragraph (g)(3), the testing 

requirements are temporarily suspended 

for 90 days following a positive COVID– 

19 test or diagnosis. Thus, the 

employer’s policy and procedures to 

implement this temporary suspension of 


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testing should be included in their 

written workplace policy. In addition to 

the testing requirements in paragraph 

(g), an effective policy must address 

mandatory face covering use as 

described in paragraph (i), including 

procedures for employee compliance. 

Employers can get more information on 

the requirements for paragraphs (e) 

through (j), and what they must do to 

comply with those provisions of the 

standard, in the relevant Summary and 

Explanation sections (see Section VI. of 

this preamble). 

As an employer develops their written 

policy, they must address how the 

policy will apply to new employees. 

Although many new hires will be fully 

vaccinated, there should be procedures 

within the plan to collect information 

about the new employee’s vaccination 

status, and determine when an 

unvaccinated new hire must be 

vaccinated and, for employers using a 

plan under paragraph (d)(2), when 

COVID–19 testing and face covering use 

will commence if an employee remains 

unvaccinated. All new hires should be 

treated similarly to any employee who 

has not entered the workplace in the last 

seven days and will need to be fully 

vaccinated or provide proof of a 

negative COVID–19 test within the last 

seven days prior to entering the 

workplace for the first time. It is not 

OSHA’s intention to discourage 

employers from hiring new employees, 

but rather to ensure that new employees 

are as well-protected from COVID–19 

hazards in the workplace as current 

employees and are less likely to spread 

the virus to other employees. 

An employer may have already 

developed and implemented a written 

policy on vaccination, testing, and/or 

face covering use to protect employees 

from COVID–19. It is not OSHA’s intent 

for employers to duplicate current 

effective policies covering the 

requirements of this ETS; however, each 

employer with a current policy must 

evaluate that policy to ensure it satisfies 

all of the requirements of this rule. 

Employers with existing policies must 

modify and/or update their current 

policies to incorporate any missing 

required elements, and must provide 

information on these new updates or 

modifications to all employees in 

accordance with paragraph (j)(1). Once 

the employer has developed its policy 

pursuant to paragraph (d), the policy 

must be reduced to writing in order to 

be compliant with paragraph (d). 

The note to paragraph (d) was 

included in recognition that, under 

federal law, some employees may be 

entitled to a reasonable accommodation 

from their employer, absent undue 

hardship. If the worker requesting a 

reasonable accommodation cannot be 

vaccinated and/or wear a face covering 

because of a disability, as defined by the 

Americans with Disabilities Act (ADA), 

that worker may be entitled to a 

reasonable accommodation. In addition, 

if the vaccination, and/or testing for 

COVID–19, and/or wearing a face 

covering conflicts with a sincerely held 

religious belief, practice or observance, 

a worker may be entitled to a reasonable 

accommodation. Such accommodations 

exist independently of the Occupational 

Safety and Health Act and, therefore, 

OSHA does not administer or enforce 

these laws. Examples of relevant federal 

laws under which an accommodation 

can be requested include the Americans 

with Disabilities Act (ADA) and Title 

VII of the Civil Rights Act of 1964. 

For more information, the note refers 

to a resource produced by the Equal 

Employment Opportunity Commission 

(EEOC), which is responsible for 

enforcing federal laws that prohibit 

employment-related discrimination 

based on a person’s race, color, religion, 

sex (including pregnancy, gender 

identity, and sexual orientation), 

national origin, age (40 or older), 

disability, or genetic information. The 

EEOC resource listed in the note, What 

You Should Know About COVID–19 

and the ADA, the Rehabilitation Act, 

and Other EEO Laws, available at 

https://www.eeoc.gov/wysk/what-youshould-know-about-covid-19-and-adarehabilitation-act-and-other-eeo-laws, 

should be helpful to employers in 

navigating employees’ requests for 

accommodations, including the process 

for determining a reasonable 

accommodation and information on 

undue hardship (EEOC, October 25, 

2021). An additional resource that might 

be helpful is the CDC’s informational 

document, Summary Document for 

Interim Clinical Considerations for Use 

of COVID–19 Vaccines Currently 

Authorized in the United States (CDC, 

September 29, 2021), which lists the 

recognized clinical contraindications to 

receiving a COVID–19 vaccine. 

References 

Centers for Disease Control and Prevention 

(CDC). (2021, September 15). Science 

Brief: Background rationale and evidence 

for public health recommendations for 

fully vaccinated people. https://

www.cdc.gov/coronavirus/2019-ncov/ 

science/science-briefs/fully-vaccinatedpeople.html. (CDC, September 15, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, September 29). Summary 

Document for Interim Clinical 

Considerations for Use of COVID–19 

Vaccines Currently Authorized in the 

United States. https://www.cdc.gov/ 

vaccines/covid-19/downloads/summaryinterim-clinical-considerations.pdf. 

(CDC, September 29, 2021) 

Equal Employment Opportunity Commission 

(EEOC). (2021, October 25). What You 

Should Know About COVID–19 and the 

ADA, the Rehabilitation Act, and Other 

EEO Laws. https://www.eeoc.gov/wysk/ 

what-you-should-know-about-covid-19- 

and-ada-rehabilitation-act-and-othereeo-laws. (EEOC, October 25, 2021) 

E. Determination of Employee 

Vaccination Status 

To comply with the requirements of 

the standard, it is essential that 

employers are aware of each employee’s 

vaccination status. As discussed in the 

Summary and Explanation for 

paragraph (d) (Section VI.D. of this 

preamble), effective implementation and 

enforcement of a written vaccination 

policy requires the employer to know 

the vaccination status of all employees. 

Furthermore, the employer must know 

each employee’s vaccination status in 

order to ensure that the vaccination, 

testing, and face covering requirements 

of the standard are met. As such, 

paragraph (e) includes provisions for 

determining each employee’s 

vaccination status. The standard 

requires employers to determine the 

vaccination status of each employee 

(paragraph (e)(1)), and also to maintain 

records of each employee’s vaccination 

status, preserve acceptable proof of 

vaccination for each employee who is 

fully or partially vaccinated, and 

maintain a roster of each employee’s 

vaccination status (paragraph (e)(4)). As 

discussed more fully below, 

maintenance of records in accordance 

with this paragraph is subject to 

applicable legal requirements for 

confidentiality of medical information. 

Additional provisions in paragraph (e) 

define acceptable proof of vaccination 

status for vaccinated employees 

(paragraph (e)(2)) and provide that any 

employee who does not submit an 

acceptable form of proof of vaccination 

status must be treated as not fully 

vaccinated (paragraph (e)(3)). 

Paragraph (e)(1) requires the employer 

to determine the vaccination status of 

each employee, including whether the 

employee is fully vaccinated. Under 

paragraph (e)(2), the employer must 

require each vaccinated employee to 

provide acceptable proof of vaccination 

status, including whether they are fully 

or partially vaccinated. This is an 

ongoing requirement for the employer 

(i.e., the employer needs to update this 

information as employees proceed 

through the vaccination process). 

Paragraph (e)(2) defines what 

‘‘acceptable proof of vaccination status’’ 

means for purposes of the ETS, and 


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employers must accept any of the proofs 

listed in accordance with the terms of 

the standard and as explained more 

fully below. Under paragraph (e)(2), the 

following are acceptable for proof of 

vaccination: (i) The record of 

immunization from a health care 

provider or pharmacy; (ii) a copy of the 

U.S. CDC COVID–19 Vaccination 

Record Card (CDC Form MLS–319813_

r, published on September 3, 2020) 

(CDC, October 5, 2021); (iii) a copy of 

medical records documenting the 

vaccination; (iv) a copy of immunization 

records from a public health, state, or 

tribal immunization information system; 

or (v) a copy of any other official 

documentation that contains the type of 

vaccine administered, date(s) of 

administration, and the name of the 

health care professional(s) or clinic 

site(s) administering the vaccine(s). 

To be acceptable as proof of 

vaccination, any documentation should 

generally include the employee’s name, 

type of vaccine administered, date(s) of 

administration, and the name of the 

health care professional(s) or clinic 

site(s) administering the vaccine(s). In 

some cases, state immunization records 

may not include one or more of these 

data fields, such as clinic site; in those 

circumstances, an employer can still 

rely upon the State immunization 

record as acceptable proof of 

vaccination. OSHA notes that clinic 

sites can include temporary vaccination 

facilities used during large vaccine 

distribution campaigns, such as schools, 

churches, or sports stadiums. Copies, 

including digital copies, of the listed 

forms of proof are acceptable means of 

documentation so long as they clearly 

and legibly display the necessary 

information. Digital copies can include, 

for example, a digital photograph, 

scanned image, or PDF of an acceptable 

form of proof. Some state governments 

are utilizing digital COVID–19 vaccine 

records showing the same information 

as the U.S. CDC COVID–19 Vaccination 

Record Card (CDC Form MLS–319813_

r, published on September 3, 2020) and 

providing quick response (QR) codes 

that when scanned will provide the 

same information (see, e.g., New York 

State Government, n.d., Retrieved 

October 4, 2021). In certain states, the 

QR code confirms the vaccine record as 

an official record of the state (see, e.g., 

State of California, n.d., Retrieved 

October 7, 2021) and therefore would 

provide acceptable proof of vaccination 

under the ETS (see paragraph (e)(2)(iv)). 

However, as discussed later, the 

employer must retain a copy of the 

vaccination information retrieved when 

the QR code is scanned, not just the QR 

code itself, to comply with paragraph 

(e)(4). In requesting proof of 

vaccination, the employer must take 

care to comply with any applicable 

Federal laws, including requirements 

under the Privacy Act, 5 U.S.C. 552a, 

and the Americans with Disabilities Act 

(ADA), 42 U.S.C. 12101 et seq. 

Each employee who has been partially 

or fully vaccinated should be able to 

provide one of the forms of acceptable 

proof listed above (paragraphs (e)(2)(i)– 

(e)(2)(v)). An employee who does not 

possess their COVID–19 vaccination 

record (e.g., because it was lost or 

stolen) should contact their vaccination 

provider (e.g., local pharmacy, 

physician’s office) to obtain a new copy 

or utilize their state health department’s 

immunization information system. In 

instances where an employee is unable 

to produce acceptable proof of 

vaccination under paragraphs (e)(2)(i)– 

(e)(2)(v), paragraph (e)(2)(vi) provides 

that a signed and dated statement by the 

employee will be acceptable. The 

employee’s statement must: (A) Attest to 

their vaccination status (fully 

vaccinated or partially vaccinated); (B) 

attest that they have lost or are 

otherwise unable to produce proof 

required by the standard; and (C) 

include the following language: ‘‘I 

declare (or certify, verify, or state) that 

this statement about my vaccination 

status is true and accurate. I understand 

that knowingly providing false 

information regarding my vaccination 

status on this form may subject me to 

criminal penalties.’’ The note to 

paragraph (e)(2)(vi) explains that an 

employee who attests to their 

vaccination status should, to the best of 

their recollection, include the following 

information in their attestation: The 

type of vaccine administered; date(s) of 

administration; and the name of the 

health care professional(s) or clinic 

site(s) administering the vaccine(s). For 

example, some of the information may 

be easier to recall, such as receiving a 

vaccine at a mass vaccination site or 

local pharmacy, while the dates of 

administration might only be 

remembered as falling within a 

particular month or months. OSHA 

understands that employees may not be 

able to recall certain information, such 

as the type of vaccine received. 

Employees providing attestations 

should include as much of this 

information as they can remember to the 

best of their ability. 

Any statement provided under 

paragraph (e)(2)(vi) must include an 

attestation that the employee is unable 

to produce another type of proof of 

vaccination (paragraph (e)(2)(vi)(B)). 

Thus, before an employee statement will 

be acceptable for proof of vaccination 

under paragraph (e)(2)(vi), the employee 

must have attempted to secure alternate 

forms of documentation via other means 

(e.g., from the vaccine administrator or 

their state health department) and been 

unsuccessful in doing so. The agency 

recognizes that securing vaccination 

documentation may be challenging for 

some members of the workforce, such as 

migrant workers, employees who do not 

have access to a computer, or employees 

who may not recall who administered 

their vaccines (e.g., if the vaccination 

was provided at a temporary location, 

such as a church, or during a state or 

local mass vaccination campaign). Thus, 

for employees who have no other means 

of obtaining proof of vaccination, the 

standard permits employers to accept 

attestations meeting the requirements in 

paragraph (e)(2)(vi) as proof of 

vaccination. However, employers 

should explain to their employees that 

they need to produce vaccination proof 

through the other means listed in 

paragraph (e)(2), such as by contacting 

the vaccination administrator, if they 

are able to do so. Once the employee has 

provided a signed and dated attestation 

that meets the requirements of 

paragraph (e)(2)(vi), the employer no 

longer needs to seek out one of the other 

forms of vaccination proof for that 

employee and, depending on the 

content of the attestation, the employer 

may consider that employee either fully 

or partially vaccinated for purposes of 

the ETS. 

Recently, there has been evidence of 

fraud associated with people attesting to 

their vaccination status (Bergal, 

September 16, 2021). While employers 

may not invite or facilitate fraud, the 

ETS does not require employers to 

monitor for or detect fraud. By defining 

what constitutes acceptable proof of 

vaccination under the ETS, OSHA is 

ensuring that employers can accept 

proof meeting the requirements of 

paragraph (e) for purposes of 

compliance with the standard. However, 

the standard’s requirements for proof of 

vaccination are integral to ensuring that 

employees are protected appropriately, 

either through vaccination (the 

preferred and most effective workplace 

control in this ETS), or through regular 

testing and use of face coverings. Thus, 

it is paramount that employees provide 

truthful information regarding their 

vaccination status. 

As discussed in more detail in the 

Summary and Explanation for 

paragraph (j) (Section VI.J. of this 

section), 18 U.S.C. 1001(a), which 

provides for fines or imprisonment of 

generally up to 5 years for any person 

who ‘‘in any matter within the 


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jurisdiction’’ of the executive branch 

U.S. Government ‘‘knowingly and 

willfully’’ engages in any of the 

following: 

(1) Falsifies, conceals, or covers up by 

any trick, scheme, or device a material 

fact; 

(2) makes any materially false, 

fictitious, or fraudulent statement or 

representation; or 

(3) makes or uses any false writing or 

document knowing the same to contain 

any materially false, fictitious, or 

fraudulent statement or entry. 

Similarly, the OSH Act recognizes 

that OSHA’s ability to protect workers’ 

safety and health hinges on truthful 

reporting. For that reason section 17(g) 

of the OSH Act subjects anyone who 

‘‘knowingly makes any false statement, 

representation, or certification in any 

application, record, report, plan, or 

other document filed or required to be 

maintained pursuant to this chapter’’ to 

criminal penalties. 29 U.S.C. 666(g). 

False statements made in any proof 

submitted under paragraph (e)(2) of the 

standard could fall under either or both 

of 18 U.S.C. 1001 or section 17(g) of the 

OSH Act. And by requiring a specific 

declaration about the truth and accuracy 

of employee statements provided under 

paragraph (e)(2)(vi), employees who are 

unable to provide any means of proof 

other than their own attestation are 

being made aware that their words are 

being held to the same standard of 

truthfulness as any other record 

presented for proof of vaccination. 

OSHA notes that these same 

prohibitions on false statements and 

documentation can apply to employers. 

If an employer knows that proof 

submitted by an employee is fraudulent, 

and even with this knowledge, accepts 

and maintains the fraudulent proof as a 

record of compliance with this ETS, it 

may be subject to the penalties in 18 

U.S.C. 1001 and 17(g) of the OSH Act. 

Paragraph (e)(3) provides the 

mechanism for employers to determine 

vaccination status for employees who 

do not submit any of the acceptable 

forms of proof of vaccination status. 

Under paragraph (e)(3), any employee 

who does not provide their employer 

with one of the acceptable forms of 

proof of vaccination status in paragraph 

(e)(2) must be treated as not fully 

vaccinated for the purpose of the 

standard. An unvaccinated employee 

does not need to provide any 

documentation regarding vaccination 

status under this ETS; however, failing 

to provide acceptable proof of 

vaccination status will signal the 

employer to consider the employee as 

not fully vaccinated and to note that as 

their status in the roster. For employers 

that include COVID–19 testing in their 

written policies under paragraph (d), 

employees without acceptable proof of 

vaccination status must submit to 

weekly tests (as required by paragraph 

(g)) and wear a face covering (as 

required by paragraph (i)). 

Paragraph (e)(4) requires the employer 

to maintain a record of each employee’s 

vaccination status and preserve 

acceptable proof of vaccination for each 

employee who is fully or partially 

vaccinated. As discussed previously, the 

employer has various options for 

acquiring proof of vaccination from each 

employee. An employer may allow 

employees to provide a digital copy of 

acceptable records, including, for 

example, a digital photograph, scanned 

image, or PDF of such a record that 

clearly and legibly displays the 

necessary vaccination information. 

However, to be in compliance with 

paragraph (e)(4), the employer must 

ensure they are able to maintain a 

record of each employee’s vaccination 

status. Therefore, obtaining an 

employee’s vaccination information 

verbally would not comply with 

paragraph (e)(2) or satisfy the record 

maintenance requirements of the 

standard. Similarly, the record 

maintenance requirements of paragraph 

(e)(4) cannot be fulfilled by an employee 

merely showing the employer their 

vaccination status (e.g., by bringing the 

CDC COVID–19 vaccination card to the 

workplace and showing it to an 

employer representative or showing an 

employer representative a picture of the 

immunization records on a personal 

cellphone). To satisfy paragraph (e)(4), 

the employer must retain a copy of the 

documentation. As mentioned above, 

some states and local governments 

utilize QR codes to facilitate proof of 

vaccination. This can be an acceptable 

form of proof for compliance with the 

standard so long as the employer retains 

a copy of the information retrieved by 

scanning the QR code and maintains 

that record. Required records of 

vaccination status can be maintained 

physically or electronically, but the 

employer must ensure they have access 

to the records at all times. 

In addition to obtaining and 

maintaining individual records of each 

employee’s vaccination status and 

preserving acceptable proof of 

vaccination for each employee who is 

partially or fully vaccinated, under 

paragraph (e)(4) the employer must 

maintain a roster of each employee’s 

vaccination status, subject to applicable 

confidentiality requirements. The roster 

must list all employees and clearly 

indicate for each one whether they are 

fully vaccinated, partially (not fully) 

vaccinated, not fully vaccinated because 

of a medical or religious 

accommodation (see Note to paragraph 

(d)), or not fully vaccinated because 

they have not provided acceptable proof 

of their vaccination status. As noted 

previously, any employee that has not 

provided acceptable proof of their 

vaccination status must be treated as not 

fully vaccinated. Although 

unvaccinated employees will not have 

proof of vaccination status, the standard 

requires the employer to include all 

employees, regardless of vaccination 

status, on the roster. 

The roster allows the employer to 

easily access the vaccination status for 

any employee quickly and easily. This 

will be useful should the employer need 

to respond to a request from an 

employee or employee representative 

for the aggregate number of fully 

vaccinated employees at a workplace 

(along with the total number of 

employees at that workplace), as 

required under paragraph (l)(2). 

Additionally, the roster will help the 

employer implement the written policy 

developed in accordance with 

paragraph (d) and comply with other 

requirements of the ETS. And finally, 

the roster, which must be provided to 

OSHA on request (paragraph (l)(3)), will 

aid OSHA’s ability to effectively and 

efficiently enforce this ETS. 

The records and roster required by 

paragraph (e)(4) are considered to be 

employee medical records and must be 

maintained as such records in 

accordance with 29 CFR 1910.1020 and 

must not be disclosed except as required 

or authorized by this ETS or other 

federal law, including the Americans 

with Disabilities Act (ADA), 42 U.S.C. 

12101 et seq. These records and roster 

are not subject to the retention 

requirements of 29 CFR 

1910.1020(d)(1)(i) but must be 

maintained and preserved while this 

ETS remains in effect. OSHA considers 

vaccination records required by 

paragraphs (e)(2) and (e)(4) of the ETS 

to be employee medical records 

concerning the health status of an 

employee and is requiring this 

personally identifiable medical 

information to be maintained in a 

confidential manner. OSHA notes that 

under paragraph (e)(4), vaccination 

records and rosters are employee 

medical records, and must be treated as 

employee medical records under 29 CFR 

1910.1020, without regard to whether 

the records satisfy the definition of 

employee medical record at 29 CFR 

1910.1020(c)(6)(i). 

Paragraph (e) in 29 CFR 1910.1020 

includes requirements for access to 

employee medical records by 


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employees, their designated 

representatives, and OSHA. However, as 

discussed in more detail below, 

paragraph (l) of the ETS includes 

specific timeframes within which 

employers must make vaccine records 

available to employees, OSHA, and 

other specified individuals. 

Accordingly, the timeframes for 

providing access to employee medical 

records in 29 CFR 1910.1020(e) do not 

apply, and employers must follow the 

specific timeframes set forth in 

paragraph (l) of the ETS for providing 

access to vaccination records. 

Additionally, 29 CFR 1910.1020(d) 

addresses the preservation of employee 

exposure and medical records. 

Paragraph (d)(1)(i) in section 1910.1020 

generally provides that unless a specific 

occupational safety and health standard 

provides a different period of time, each 

employer must preserve and maintain 

employee medical records for at least 

the duration of employment plus thirty 

(30) years. Paragraph (e)(4) of the ETS 

specifically provides that the 

vaccination records required by the ETS 

are not subject to the retention 

requirements of 29 CFR 

1910.1020(d)(1)(i). Instead, paragraph 

(e)(4) states that vaccination records 

must be maintained and preserved only 

so long as the ETS remains in effect. 

Finally, while the provisions on 

timeframes for access to records and the 

retention provisions of 29 CFR 

1910.1020 do not apply to vaccine 

records required by the ETS, other 

provisions in that regulation can still 

apply. For example, 29 CFR 

1910.1020(h) includes requirements for 

the transfer of employee medical 

records when an employer ceases to do 

business. 

OSHA recognizes the possibility that 

an employer may have already collected 

information about the vaccination status 

of employees, including proof of 

vaccination, prior to the effective date of 

this ETS. Under paragraph (e)(5), when 

an employer has ascertained employee 

vaccination status prior to the effective 

date of the ETS through another form of 

attestation or proof, and retained 

records of that ascertainment, the 

employer is exempt from the 

requirements in paragraphs (e)(1)–(e)(3). 

The exemption applies only for each 

employee whose fully vaccinated status 

has been documented prior to the 

effective date of the standard. For 

example, an employer may have asked 

each employee to self-report their 

vaccination status without requiring the 

employee to provide any form of proof. 

If that self-reporting was through oral 

conversation only, and not documented 

in some way, the employer is not 

considered to have retained records of 

that ascertainment for the purposes of 

this ETS. However, if, for example, the 

employer had the employees provide 

their vaccine information on a dated 

form, or through individual emails 

retained by the employer, or on an 

employer portal specifically created for 

employees to provide documentation 

status, or the employer created and 

retained some other means of 

documentation, the employer is 

considered to have retained records of 

ascertainment for the purposes of this 

ETS. Even if the record does not have 

all of the elements of the acceptable 

forms of proof listed in paragraph (e)(2), 

so long as the employer has ascertained 

employee vaccination status prior to the 

effective date of the ETS through 

another form of attestation or proof, and 

retained records of that ascertainment, 

the employer does not need to redetermine vaccination status (paragraph 

(e)(1)) or obtain proof of vaccination 

status (paragraph (e)(2)) for fully 

vaccinated employees. For purposes of 

paragraph (e)(4), the employer’s records 

of vaccination status for each employee 

whose fully vaccinated status was 

previously documented constitute 

acceptable proof of vaccination. 

However, the employer must still 

develop a roster of each employee’s 

vaccination status and include on that 

roster the employees for whom it had 

previously determined and retained 

records of vaccination status. OSHA 

notes that if the employer has not 

ascertained employee vaccination status 

for employees prior to the effective date 

of the ETS, then all requirements of 

paragraph (e) would apply. And all 

requirements of paragraph (e) also apply 

with respect to employees for whom the 

employer ascertained only partial 

vaccination status prior to the effective 

date of the ETS. 

References 

Bergal J. (2021, September 16). Fake Vaccine 

Card Sales Have Skyrocketed Since 

Biden Mandate. https://

www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2021/09/16/ 

fake-vaccine-card-sales-haveskyrocketed-since-biden-mandate. 

(Bergal, September 16, 2021). 

Centers for Disease Control and Prevention 

(CDC). (2021, October 5). Getting Your 

CDC COVID–19 Vaccination Record 

Card. https://www.cdc.gov/coronavirus/ 

2019-ncov/vaccines/vaccinationcard.html. (CDC, October 5, 2021). 

New York State Government. (n.d.) Excelsior 

Pass and Excelsior Pass Plus. Retrieved 

October 4, 2021 from https://

covid19vaccine.health.ny.gov/excelsiorpass-and-excelsior-pass-plus. (New York 

State Government, n.d., Retrieved 

October 4, 2021). 

State of California. (n.d.) Frequently Asked 

Questions. Retrieved October 7, 2021 

from https://

myvaccinerecord.cdph.ca.gov/faq. (State 

of California, n.d., Retrieved October 7, 

2021). 

F. Employer Support for Employee 

Vaccination 

As discussed in the Summary and 

Explanation for paragraph (d) (Section 

VI.D. of this preamble), as well as in 

Grave Danger and Need for the ETS 

(Sections III.A. and III.B. of this 

preamble), vaccination is the single 

most efficient and effective method for 

protecting unvaccinated workers from 

the grave danger posed by COVID–19. 

This emergency temporary standard is 

therefore designed to strongly encourage 

vaccination. As discussed in detail 

below, paragraph (f) requires employers 

to support vaccination by providing 

employees reasonable time, including 

up to four hours of paid time, to receive 

each primary vaccination dose, and 

reasonable time and paid sick leave to 

recover from side effects experienced 

following each primary vaccination 

dose. For purposes of the requirements 

to support vaccination in paragraph (f), 

OSHA considers a vaccination series 

that meets the criteria in subparagraph 

(ii) of the definition of ‘‘fullyvaccinated’’ (i.e., a heterologous primary 

series of such vaccines, receiving doses 

of different COVID–19 vaccines as part 

of one primary series) to be a primary 

vaccination series, along with the 

primary vaccination described in 

subparagraph (i) of that definition (see 

the Summary and Explanation for 

paragraph (c), Section VI.C. of this 

preamble, for more information on the 

definition of fully vaccinated). 

Removing logistical barriers to 

obtaining vaccination is essential to 

increasing workforce vaccination rates, 

and one such barrier for many 

employees is their lack of time off of 

work to receive the vaccine and recover 

from any potential side effects (SEIU 

Healthcare, February 8, 2021). 

Employees’ concerns about missing 

work to obtain and recover from a 

COVID–19 vaccination dose are well 

documented. In a McKinsey survey, 

12% of respondents stated that the time 

spent away from work to get vaccinated 

or due to vaccine side effects was a 

barrier to vaccination (Azimi et al., 

April 9, 2021). In a survey conducted of 

unvaccinated adults in April 2021, a 

fifth of respondents said they were very 

or somewhat concerned that they may 

need to take time off to go and get the 

vaccine, and 48% of respondents said 

that they were very or somewhat 

concerned that they might miss work if 


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the vaccine side effects make them feel 

sick (KFF, May 6, 2021). Black and 

Hispanic adults were particularly 

worried about the potential time 

necessary to receive the vaccine and to 

recover from vaccine side effects; 64% 

of unvaccinated Hispanic adults and 

55% of unvaccinated Black adults 

expressed concern that they might have 

to miss work due to the side effects of 

a COVID–19 vaccine, and 30% of 

Hispanic adults and 23% of Black 

adults were concerned that they might 

need to take time off work to get a 

COVID–19 vaccine (KFF, May 6, 2021; 

KFF, May 17, 2021). News and journal 

articles further evince this concern (Roy 

et al., December 29, 2020; Cleveland 

Documenters, 2021; Rosenberg and 

Stein, August 18, 2021). 

This concern reflects the fact that 

many workers do not have access to 

paid time off to receive vaccination or 

to recover from side effects. A KFF 

survey found that only half of all 

workers reported that their employer 

provided them with paid time off either 

to get a COVID–19 vaccine or to recover 

from any side effects (KFF, June 30, 

2021). A subsequent KFF survey found 

that only about one-third of workers 

were sure that their employer offered 

them paid time off to get a COVID–19 

vaccine and recover from side effects 

(KFF, September 28, 2021). Although 

employee access to paid sick leave is 

less of a concern for employers with 100 

or more employees, approximately 12% 

of employees in these situations do not 

have paid sick leave (BLS, September 

2021) and in some cases, employees 

may have already exhausted paid sick 

leave they have received and would 

need additional time from their 

employers to recover from vaccine side 

effects. 

The scarcity of paid time off for 

vaccination and side effect recovery is 

particularly acute for certain 

demographic groups. The June 2021 

KFF survey found that only 38% of 

Black workers reported getting either 

paid time off to get a COVID–19 vaccine 

or to recover from side effects, and that 

only 41% of workers with household 

incomes less than $40,000 annually had 

access to such paid time off (KFF, June 

30, 2021). Similarly, the September 

2021 KFF survey found that lower-wage 

workers were particularly unlikely to 

report access to paid time off for 

vaccination or recovery, with only 23% 

of workers whose household incomes 

was less than $40,000 reporting that 

they could take paid time off to get 

vaccinated, and only 28% of that group 

reporting that they could take paid time 

off to recover from side effects (KFF, 

September 28, 2021). Lower-wage 

workers’ lack of access to paid time off 

for vaccination comports with a 

different report indicating that, before 

the pandemic, about 65% of the lowestwage workers had no access to paid sick 

leave, meaning that any time off for 

vaccination or recovery would result in 

lost wages for those who can least afford 

those losses (BLS, September 2021). The 

need for paid time off to receive 

vaccination is also particularly 

important for workers with disabilities 

and workers in rural areas because 

travel to and from vaccination sites may 

take more time or be more logistically 

difficult for those populations (National 

Safety Council, 2021). 

Paying workers for the time spent to 

receive vaccination and to recover from 

side effects has proven to be an effective 

method for increasing vaccination rates. 

In June 2021, KFF found that 

approximately 75% of employed adults 

surveyed who received paid time off to 

get the vaccine or to recover from side 

effects had received at least one dose of 

the vaccine compared to only 51% of 

those surveyed who did not receive paid 

time off from their employer (KFF, June 

30, 2021). KFF also found that 

employees who are provided paid time 

off and are encouraged by their 

employers to get vaccinated are more 

likely to get vaccinated, even after 

controlling for demographic 

characteristics that may impact 

vaccination uptake (KFF, June 30, 2021). 

Another KFF survey found that 28% of 

unvaccinated respondents who did not 

want to get the vaccine as soon as 

possible said that they would be more 

likely to obtain vaccination if their 

employer gave them paid time off to get 

vaccinated and recover from any side 

effects (KFF, May 6, 2021). KFF has also 

found that increasing access to paid 

leave for vaccination or recovery from 

side effects can also help further reduce 

disparities in vaccination by age and 

income (KFF, September 28, 2021). 

In a different survey, paid time off for 

vaccination and the recovery period 

post-vaccination was the single mostinfluential action for encouraging 

employee vaccination, with 75% of 

respondents indicating that such paid 

time off would significantly or 

moderately increase the likelihood that 

they would get vaccinated (Azimi et al., 

April 9, 2021). Another survey of nearly 

9,000 service workers across large 

grocery, retail, food service, pharmacy, 

and delivery firms, found that 

vaccination rates were lower than other 

frontline workers who also regularly 

work in-person and indoors, and when 

employers supported and facilitated 

vaccination, such as through providing 

paid time off or paid sick leave for 

vaccination or for recovery from side 

effects, employee vaccination rates were 

higher than if no support was provided, 

and in May 2021, workers with paid 

sick leave were 15% more likely to have 

gotten the vaccine than workers without 

such leave (Bellew et al., June 2021). 

To address this barrier to vaccination, 

paragraph (f) requires employers to 

support COVID–19 vaccination by 

providing each employee with 

reasonable time, including up to four 

hours of paid time, to receive each 

primary vaccination dose, and 

reasonable time and paid sick leave to 

recover from side effects experienced 

following any primary vaccination dose. 

Providing this time is essential for all 

unvaccinated employees who are 

covered by this rule to ensure that they 

can receive primary vaccination dose(s) 

and recover from side effects without 

sacrificing pay or their jobs. In 

workplaces where employers implement 

a mandatory vaccination policy in 

accordance with paragraph (d)(1) of this 

rule, the requirements of paragraph (f) 

ensure that employees are able to 

comply with the mandatory vaccination 

policy without concern about missing 

work to do so. In workplaces where the 

employer opts out of implementing a 

mandatory vaccination policy in 

accordance with paragraph (d)(2), the 

requirements of paragraph (f) encourage 

employees to choose vaccination, and 

ensure that employees who choose to 

obtain vaccination, rather than be 

regularly tested for COVID–19 and wear 

a face covering in most situations when 

they work near others, are not penalized 

for making that choice. 

Paragraph (f)(1) requires employers to 

support COVID–19 vaccination for each 

employee by providing reasonable time 

to each employee during work hours for 

each of their primary vaccination 

dose(s), including up to four hours of 

paid time, at the employee’s regular rate 

of pay, for the purposes of vaccination. 

Reasonable time may include, but is not 

limited to, time spent during work 

hours related to the vaccination 

appointment(s), such as registering, 

completing required paperwork, all time 

spent at the vaccination site (e.g., 

receiving the vaccination dose, postvaccination monitoring by the vaccine 

provider), and time spent traveling to 

and from the location for vaccination 

(including travel to an off-site location 

(e.g., a pharmacy), or situations in 

which an employee working remotely 

(e.g., telework) or in an alternate 

location must travel to the workplace to 

receive the vaccine). 

Employers are not, however, obligated 

by this ETS to reimburse employees for 

transportation costs (e.g., gas money, 


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train/bus fare, etc.) incurred to receive 

the vaccination. This could include the 

costs of travel to an off-site vaccination 

location (e.g., a pharmacy) or travel from 

an alternate work location (e.g., 

telework) to the workplace to receive a 

vaccination dose. 

Because employers are required to 

provide reasonable time for vaccination 

during work hours, if an employee 

chooses to receive a primary vaccination 

dose outside of work hours, employers 

are not required to grant paid time to the 

employee for the time spent receiving 

the vaccine during non-work hours. 

However, even if employees receive a 

primary vaccination dose outside of 

work hours, employers must still afford 

them reasonable time and paid sick 

leave to recover from side effects that 

they experience during scheduled work 

time in accordance with paragraph 

(f)(2). 

An employer may make other efforts 

to facilitate vaccination of its employees 

by, for example, hosting a vaccine clinic 

at the workplace (e.g., mobile trailer) or 

partnering with another entity, such as 

a pharmacy or healthcare provider, so 

that employees can be vaccinated at the 

workplace or at an off-site location. If an 

employer chooses to make the vaccine 

available to its employees, it must 

support full vaccination (i.e., provide all 

doses in a primary vaccination, as 

applicable), and assure the availability 

of reasonable time and paid time to each 

employee to receive the full primary 

vaccination, and reasonable time and 

paid sick leave to recover from side 

effects that they may experience. Any 

additional costs incurred by the 

employer to bring vaccination on-site 

would be covered by the employer, 

though such an approach would likely 

reduce the amount of paid time needed 

for vaccine administration (but not side 

effects) because of reduced employee 

travel time. 

Paragraph (f)(1) specifies that the 

amount of paid time that an employer 

is required to provide each employee to 

receive each primary vaccination dose is 

capped at four hours. OSHA has 

determined that four hours would 

provide reasonable time for most 

employees to get each vaccination dose. 

Vaccines are widely available to the 

public at clinics, pharmacies, and other 

locations across the country (see CDC, 

October 8, 2021). Providing four hours 

of paid time to receive each primary 

vaccination dose is consistent with 

OSHA’s presumption of the amount of 

time needed to receive a vaccination 

dose in the June 2021 Healthcare ETS 

(86 FR 32598), and with the U.S. Office 

of Personnel Management’s guidance to 

federal government agencies on the use 

of the emergency paid leave created for 

federal employees in the American 

Rescue Plan Act of 2021 (Public Law 

117–2), which encouraged agencies to 

offer up to four hours of administrative 

leave per dose to cover time spent 

getting a vaccine dose, plus additional 

time if reasonably necessary, instead of 

having employees use emergency paid 

leave (OPM, April 29, 2021). OSHA 

expects that most employees will need 

less than four hours to receive a 

vaccination dose. 

The maximum of four hours of paid 

time that employers must provide under 

paragraph (f)(1)(ii) for the 

administration of each primary 

vaccination dose cannot be offset by any 

other leave that the employee has 

accrued, such as sick leave or vacation 

leave. OSHA is concerned that 

employees forced to use their sick leave 

or vacation leave for vaccination would 

have a disincentive to gaining the health 

protection of vaccination. Employers 

must pay employees for up to four hours 

of time at the employee’s regular rate of 

pay. This may be achieved by paying for 

the time to be vaccinated as work hours 

for up to four hours. Requiring 

employers to pay for vaccine 

administration is consistent with 

OSHA’s normal approach of requiring 

employers to bear the costs of 

compliance with safety and health 

standards. 

OSHA understands that employees 

may need much less than four hours to 

receive a primary vaccination dose, for 

example, if vaccinations are offered onsite. However, OSHA also understands 

that, in some circumstances, an 

employee may need more than four 

hours to receive a primary vaccination 

dose, in which case the additional time, 

as long as it is reasonable, would be 

considered unpaid but protected leave. 

The employer cannot terminate the 

employee if they use a reasonable 

amount of time to receive their primary 

vaccination doses. The employee may 

use other leave time that they have 

available (e.g., sick leave or vacation 

time) to cover the additional time 

needed to receive a vaccination dose 

that would otherwise be unpaid. 

Paragraph (f)(2) also requires 

employers to support COVID–19 

vaccination for each employee by 

providing reasonable time and paid sick 

leave to recover from side effects 

experienced following any primary 

vaccination dose to each employee for 

each dose. The paid sick leave can be 

in the form of an employee’s accrued 

sick leave, if available. If the employee 

does not have available sick leave, leave 

must be provided for this purpose. 

Although some individuals 

experience no side effects from COVID– 

19 vaccination doses, the CDC has 

identified a range of side effects that 

other individuals may experience 

following a vaccination dose (CDC, 

April 2, 2021; CDC, September 30, 

2021). Side effects may affect 

individuals’ ability to engage in daily 

activities, are typically mild-tomoderate in severity, and usually go 

away in a few days. Common side 

effects include pain, redness, and 

swelling at the site of injection, and 

systemic side effects throughout the 

body, including tiredness, headache, 

muscle pain, chills, fever, and nausea. 

Side effects may be sufficiently severe to 

require the employee to take sick leave 

from work, but will rarely extend 

beyond a few days. One study found 

that ‘‘unanticipated paid administrative 

leave was only required for 4.9% and 

19.79% of individuals after the first and 

second doses of vaccine, respectively’’ 

(Levi et al., September 25, 2021). 

Employees would not typically be 

expected to need leave solely to address 

redness or swelling at the site of 

injection, but it is not uncommon for 

vaccine recipients to require some 

recovery time for many of the other side 

effects. The CDC notes, however, that 

cough, shortness of breath, runny nose, 

sore throat, or loss of taste or smell are 

not consistent with post-vaccination 

symptoms and instead may be 

symptoms of COVID–19 or another 

infection (CDC, April 2, 2021). 

If an employee already has accrued 

paid sick leave, an employer may 

require the employee to use that paid 

sick leave when recovering from side 

effects experienced following a primary 

vaccination dose. Additionally, if an 

employer does not specify between 

different types of leave (i.e., employees 

are granted only one type of leave), the 

employer may require employees to use 

that leave when recovering from 

vaccination side effects. If an employer 

provides employees with multiple types 

of leave, such as sick leave and vacation 

leave, the employer can only require 

employees to use the sick leave when 

recovering from vaccination side effects. 

Employers cannot require employees to 

use advanced sick leave to cover 

reasonable time needed to recover from 

vaccination side effects under paragraph 

(f)(2). An employer may not require an 

employee to accrue negative paid sick 

leave or borrow against future paid sick 

leave to recover from vaccination side 

effects. In other words, the employer 

cannot require an employee to go into 

the negative for paid sick leave if the 

employee does not have accrued paid 


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1Azimi T et al. (2021, April 9). Getting to work: 

Employers’ role in COVID–19 vaccination. https:// 

www.mckinsey.com/industries/pharmaceuticalsand-medical-products/our-insights/getting-to-workemployers-role-in-covid-19-vaccination# (Azimi et 

al., April 9, 2021) 

sick leave when they need to recover 

from side effects experienced following 

a primary vaccination dose. Neither the 

paid time required to receive any 

vaccine dose(s) nor the paid sick leave 

required to recover from side effects 

experienced following any vaccination 

dose are retroactive requirements for 

vaccine dose(s) received prior to the 

promulgation of this ETS. 

Paragraph (f)(2) requires employers to 

provide reasonable time and paid sick 

leave to employees to recover from side 

effects experienced following a primary 

vaccination dose, but does not specify 

the amount of paid sick leave that the 

employer is required to provide for that 

purpose. Employers may set a cap on 

the amount of paid sick leave available 

to employees to recover from any side 

effects, but the cap must be reasonable. 

CDC notes that although some people 

have no side effects, side effects, if 

experienced, should go away in a few 

days (CDC, September 30, 2021). 

Another study found that the average 

unanticipated paid administrative leave 

required by individuals experiencing 

side effects was around two days (1.66 

days for the first dose and 1.39 days for 

the second dose) (Levi et al., September 

25, 2021). Generally, OSHA presumes 

that, if an employer makes available up 

to two days of paid sick leave per 

primary vaccination dose for side 

effects, the employer would be in 

compliance with this requirement. 

When setting the cap, an employer 

would not be expected to account for 

the unlikely possibility of the 

vaccination resulting in a prolonged 

illness in the vaccinated employee (e.g., 

a severe allergic reaction). 

OSHA is aware that other federal, 

state, or local laws, or collective 

bargaining agreements, may require 

employers to provide employees 

additional paid time for vaccination 

and/or paid sick leave to recover from 

vaccination side effects. Where such an 

overlap exists, the requirements of this 

standard are satisfied so long as the 

employer provides each employee 

reasonable time and four hours of paid 

time to receive each primary 

vaccination dose, and reasonable time 

and paid sick leave to recover from side 

effects experienced following a primary 

vaccination dose. 

References 

Azimi T et al. (2021, April 9). Getting to 

work: Employers’ role in COVID–19 

vaccination.1(Azimi et al., April 9, 2021) 

Bellew E et al. (2021, June). Half of service 

sector workers are not yet vaccinated for 

COVID–19: What gets in the way? The 

Shift Project: Research Brief. https://

shift.hks.harvard.edu/wp-content/ 

uploads/2021/06/Vax_Brief_6.28.21- 

2.pdf. (Bellew et al., June 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, April 2). Post-vaccination 

considerations for workplaces. https://

www.cdc.gov/coronavirus/2019-ncov/ 

community/workplaces-businesses/ 

vaccination-considerations-forworkplaces.html. (CDC, April 2, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, September 30). Possible 

side effects after getting a COVID–19 

vaccine. https://www.cdc.gov/ 

coronavirus/2019-ncov/vaccines/expect/ 

after.html. (CDC, September 30, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, accessed October 8). We 

can do this: Vaccines.gov website. 

https://www.vaccines.gov/. (CDC, 

October 8, 2021) 

Cleveland Documenters. (2021). Why some 

Clevelanders are still on the fence or not 

getting vaccinated: Voices on the 

vaccine. The Cleveland Observer. 

https://www.freshwatercleveland.com/ 

street-level/VaccineVoice050521.aspx. 

(Cleveland Documenters, 2021) 

Kaiser Family Foundation (KFF). (2021, May 

6). KFF COVID–19 Vaccine Monitor: 

April 2021. https://www.kff.org/ 

coronavirus-covid-19/poll-finding/kffcovid-19-vaccine-monitor-april-2021/. 

(KFF, May 6, 2021) 

Kaiser Family Foundation (KFF). (2021, May 

17). How employer actions could 

facilitate equity in COVID–19 

vaccinations. https://www.kff.org/policywatch/how-employer-actions-couldfacilitate-equity-in-covid-19- 

vaccinations/. (KFF, May 17, 2021) 

Kaiser Family Foundation (KFF). (2021, June 

30). KFF COVID–19 Vaccine Monitor: 

June 2021. https://www.kff.org/reportsection/kff-covid-19-vaccine-monitorjune-2021-findings/. (KFF, June 30, 2021) 

Kaiser Family Foundation (KFF). (2021, 

September 28). KFF COVID–19 Vaccine 

Monitor: September 2021. https://

www.kff.org/coronavirus-covid-19/pollfinding/kff-covid-19-vaccine-monitorseptember-2021/. (KFF, September 28, 

2021) 

Levi ML et al. (2021, September 25). COVID– 

19 mRNA vaccination, reactogenicity, 

work-related absences and the impact on 

operating room staffing: A crosssectional study. Perioperative Care and 

Operating Room Management preprint. 

https://doi.org/10.1016/ 

j.pcorm.2021.100220. (Levi et al., 

September 25, 2021) 

National Safety Council. (2021). A Year in 

Review, and What’s Next: COVID–19 

Employer Approaches and Worker 

Experiences. https://www.nsc.org/ 

faforms/safer-year-one-final-report. 

(National Safety Council, 2021) 

Rosenberg E and Stein J. (2021, August 18). 

America’s failure to pay workers time off 

undermines vaccine campaign, 

according to surveys, policy experts. 

Washington Post. https://

www.washingtonpost.com/us-policy/ 

2021/08/16/paid-leave-covid-vaccine/. 

(Rosenberg and Stein, August 18, 2021) 

Roy B et al. (2020, December 29). Health Care 

Workers’ Reluctance to Take the COVID– 

19 Vaccine: A Consumer-Marketing 

Approach to Identifying and Overcoming 

Hesitancy.NEJM Catalyst. https://

catalyst.nejm.org/doi/pdf/10.1056/

CAT.20.0676. (Roy et al., December 29, 

2020) 

SEIU Healthcare. (2021, February 8). 

Research shows 81% of healthcare 

workers willing to take COVID–19 

vaccines but personal financial pressures 

remain a significant barrier for uptake. 

https://www.newswire.ca/news-releases/ 

research-shows-81-of-healthcareworkers-willing-to-take-covid-19- 

vaccines-but-personal-financialpressures-remain-a-significant-barrierfor-uptake-888810789.html. (SEIU 

Healthcare, February 8, 2021) 

United States Bureau of Labor Statistics 

(BLS). (2021, September). National 

Compensation Survey: Employee 

Benefits in the United States, March 

2021. https://www.bls.gov/ncs/ebs/ 

benefits/2021/employee-benefits-in-theunited-states-march-2021.pdf. (BLS, 

September, 2021) 

United States Office of Personnel 

Management (OPM). (2021, April 29). 

American Rescue Plan: COVID–19 

Emergency Paid Leave for Federal 

Employees. https://chcoc.gov/sites/ 

default/files/ 

Attachment%205%20COVID– 

19%20Emergency%20Paid%20

Leave%20Questions%20

and%20Answers_0.pdf. (OPM, April 29, 

2021) 

G. COVID–19 Testing for Employees 

Who Are Not Fully Vaccinated 

Paragraph (g) of this ETS addresses 

employers’ obligations with respect to 

employees who are not fully vaccinated, 

including the requirement to ensure 

unvaccinated employees are tested for 

COVID–19. As explained in Need for the 

ETS (Section III.B. of this preamble), 

OSHA strongly prefers that employers 

implement written mandatory 

vaccination policies because that is the 

most effective and efficient workplace 

control available for preventing the 

spread of COVID–19. However, this ETS 

is also necessary to protect workers who 

remain unvaccinated through required 

regular testing, use of face coverings, 

and removal of infected employees from 

the workplace, and to protect other 

workers from the greater likelihood that 

unvaccinated workers may spread 

COVID–19 in the workplace. People 

who are unvaccinated are at increased 

risk of becoming infected with COVID– 

19 and are more likely to spread the 

disease when compared to people who 


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are fully vaccinated (CDC, September 

15, 2021). Additionally, people who are 

unvaccinated are more likely to 

experience severe clinical outcomes if 

they become infected than people who 

are vaccinated (Lopez Bernal et al., July 

21, 2021). Therefore, routine COVID–19 

testing of unvaccinated employees is 

necessary to identify employees with 

COVID–19 so they can be removed from 

the workplace to prevent transmission 

to other employees and to facilitate 

early medical intervention for infected 

employees when appropriate. 

Routine testing of unvaccinated 

employees is necessary regardless of 

whether the unvaccinated employees 

have symptoms because SARS–CoV–2 

infection is often attributable to 

asymptomatic and/or pre-symptomatic 

transmission (i.e., individuals who are 

not exhibiting symptoms) (Bender et al., 

February 18, 2021; Klompas, September 

2021; Johansson et al., January 7, 2021; 

Byambasuren et al., December 11, 2020). 

Although less effective and efficient 

than vaccination, the CDC has 

recognized regularly testing 

unvaccinated employees for COVID–19 

as a useful tool for identifying 

asymptomatic and/or pre-symptomatic 

infected individuals so that they can be 

isolated (CDC, May 4, 2021; CDC, 

October 7, 2021). In contrast, the CDC 

recommends that fully vaccinated 

employees with no symptoms and no 

known exposure should be exempt from 

routine testing programs (CDC, May 4, 

2021). Additional information about the 

risks of COVID–19 transmission in 

vaccinated and unvaccinated workers is 

discussed in Grave Danger (Section 

III.A. of this preamble). 

Testing for COVID–19 can broadly be 

divided into two categories: diagnostic 

testing and screening testing. The 

purpose of diagnostic testing is to 

identify current infection when a person 

has signs or symptoms consistent with 

COVID–19, or when a person is 

asymptomatic but has recent known or 

suspected exposure to SARS–CoV–2. 

The information provided by diagnostic 

testing can be used by a healthcare 

provider to diagnose or treat a patient. 

The purpose of screening testing is to 

identify infected people who are 

asymptomatic and do not have known, 

suspected, or reported exposure to 

COVID–19. Screening testing helps to 

identify unknown cases both so that 

measures can be taken to prevent further 

transmission to others (e.g., removal 

from the workplace and home isolation) 

and also to allow infected, but 

asymptomatic, people to begin medical 

treatment, as appropriate, so they can 

better avoid the most severe outcomes of 

COVID–19 (e.g., high risk individuals 

seeking monoclonal antibody treatment 

or anti-viral medication). Although the 

testing required in paragraph (g)(1) of 

this ETS is screening testing, both 

screening and diagnostic testing can 

help prevent the spread of COVID–19. 

Paragraph (g) does not preclude 

additional diagnostic testing if an 

employee shows signs or symptoms 

consistent with COVID–19 or has recent 

known or suspected exposure to SARS– 

CoV–2. 

Both screening and diagnostic testing 

involve the use of viral COVID–19 tests 

to detect current infection, as opposed 

to antibody COVID–19 tests, which are 

used to detect whether a person has 

antibodies for COVID–19. A positive 

antibody test indicates someone has 

antibodies to SARS–CoV–2, the virus 

that causes COVID–19, which could 

either be the result of a prior infection 

with the virus or vaccination against 

COVID–19 (FDA, May 19, 2021; CDC, 

September 10, 2021). Viral tests for 

current infection fall into two 

categories: Nucleic acid amplification 

tests (NAATs) and antigen tests. The 

Food and Drug Administration (FDA) 

(October 6, 2021) has issued a number 

of Emergency Use Authorizations 

(EUAs) for viral COVID–19 tests. It is 

important to note that OSHA’s 

definition of ‘‘COVID–19 test’’ requires 

that COVID–19 tests be cleared, 

approved, or authorized by the FDA and 

administered in accordance with 

authorized instructions, with the noted 

exception of not allowing tests that are 

both self-administered and self-read by 

the employee unless observed by the 

employer or an authorized telehealth 

proctor. In this regard, OSHA recognizes 

that it is within FDA’s authority and 

jurisdiction to help to assure the 

appropriate safety, efficacy, and 

accuracy of COVID–19 tests. The 

definition of ‘‘COVID–19 test’’ has 

previously been discussed in the 

Summary and Explanation for 

paragraph (c) (Section VI.C. of this 

preamble). Additional information 

about the type of COVID–19 tests that 

would satisfy the requirements of 

paragraph (g) are available in that 

section of this preamble. 

As explained above, the most effective 

and efficient workplace control for 

preventing the spread of COVID–19 is 

vaccination and OSHA strongly prefers 

that employers implement written 

mandatory vaccination policies. 

However, where employers have 

unvaccinated employees, regular 

COVID–19 screening tests are necessary 

so infected employees can be identified 

and removed from the workplace to 

prevent workplace transmission and to 

facilitate early medical intervention, 

when appropriate. In addition to being 

more likely to become infected with 

COVID–19, people who are 

unvaccinated are more likely to 

experience severe clinical outcomes 

from COVID–19 than fully vaccinated 

people (see Grave Danger, Section III.A. 

of this preamble). In a recent CDC 

Morbidity and Mortality Weekly Report 

(MMWR) out of Los Angeles County, the 

SARS–CoV–2 infection rate among 

unvaccinated persons was 4.9 times and 

the hospitalization rate was 29.2 times 

the rates among fully vaccinated 

persons (Griffin et al., August 27, 2021). 

As explained below, regular screening 

testing of individuals for COVID–19 is 

an effective method of identifying 

asymptomatic and pre-symptomatic 

infections. Screening testing of 

unvaccinated employees is necessary 

because symptom and temperature 

checks will miss both asymptomatic and 

pre-symptomatic infections, which is a 

serious problem because presymptomatic and asymptomatic 

transmission are significant drivers of 

the continued spread of COVID–19 

(Johansson et al., January 7, 2021). Once 

infected employees are identified, they 

can be removed from the workplace, 

thereby reducing virus transmission to 

other employees. 

Several studies have indicated that 

the time from exposure to becoming 

contagious for COVID–19 is shorter than 

the time for symptoms to develop 

(incubation period), meaning that 

individuals can transmit SARS–CoV–2 

before they begin to feel ill (i.e., presymptomatic transmission) (Nishiura et 

al., March 4, 2020; Tindale et al., June 

22, 2020). Pre-symptomatic individuals 

can transmit the virus to others before 

they know they are sick. These 

individuals should isolate but would 

not know to do so if they are unaware 

of their infection. It is also possible for 

individuals to be infected and 

subsequently transmit the virus without 

ever exhibiting symptoms. This is called 

asymptomatic transmission. A metaanalysis of 351 studies from January 1, 

2020, to April 2, 2021, estimated that 

42.8% of those infected with the SARS– 

CoV–2 virus exhibited no symptoms at 

the time of testing and so had either 

asymptomatic or pre-symptomatic 

infections (Sah et al., August 10, 2021). 

In another meta-analysis of studies, 

which included people of all ages at risk 

of contracting COVID–19 who were 

tested regardless of presence or absence 

of symptoms, seventeen percent of cases 

never developed symptoms during 

entire COVID–19 infection (i.e., 

asymptomatic infection). In those 

studies, a diagnosis was confirmed with 


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a positive result on a RT–PCR and all 

positive cases had a follow-up period of 

at least seven days to distinguish 

asymptomatic cases from presymptomatic cases (Byambasuren et al., 

December 11, 2020). In another study, 

researchers used a decision analytical 

model to assess the proportion of 

SARS–CoV–2 transmission from presymptomatic, never symptomatic, and 

symptomatic individuals in the 

community. Based on their modeling, 

they predicted that 59% of transmission 

came from asymptomatic transmission, 

including 35% from pre-symptomatic 

individuals and 24% from individuals 

who never develop symptoms 

(Johansson et al., January 7, 2021). 

The existence of pre-symptomatic and 

asymptomatic infections pose serious 

challenges to containing the spread of 

SARS–CoV–2. Although the risk of 

asymptomatic transmission is 42% 

lower than from symptomatic COVID– 

19 patients (Byambasuren et al., 

December 11, 2020), asymptomatic 

transmission may result in more 

transmissions than symptomatic cases 

because asymptomatic persons are less 

likely to be aware of their infection and 

can unknowingly continue to spread the 

disease to others (Sah et al., August 10, 

2021). The challenge of containing presymptomatic and asymptomatic SARS– 

CoV–2 transmission is amplified among 

unvaccinated individuals because, as 

explained above, they are more likely to 

become infected with COVID–19 in the 

first place. 

Because unvaccinated employees are 

at higher risk of COVID–19 infection 

and COVID–19 transmission among 

individuals without symptoms is a 

significant driver of the spread of 

COVID–19, OSHA has determined it is 

necessary to prevent the presymptomatic and asymptomatic 

transmission of COVID–19 from 

unvaccinated workers, through a 

requirement for weekly screening 

testing. Screening testing with antigen 

tests is a rapidly evolving and important 

tool that can be used to reduce the 

spread of SARS–CoV–2 in the 

workplace, particularly when coupled 

with other COVID–19 prevention and 

control measures (e.g., workplace 

removal of infected persons, proper use 

of face coverings) (Schulte et al., May 

19, 2021). The CDC recommends 

screening testing of unvaccinated 

asymptomatic workers as a useful tool 

to detect COVID–19 and stop 

transmission quickly. Screening testing 

is particularly useful in areas with 

moderate to high community 

transmission of COVID–19, which is 

currently the overwhelming majority of 

the United States (CDC, October 7, 

2021). In a study with a well-defined 

population of SARS–CoV–2 infected 

individuals, researchers found that 

frequent testing (i.e., at least twice per 

week) maximizes the likelihood of 

detecting infected individuals. 

However, even when used weekly, rapid 

antigen tests still had a 76% probability 

of detection (i.e., weekly rapid antigen 

tests correctly identified 76% of true 

positive infected COVID–19 

individuals) (Smith et al., September 15, 

2021). By identifying pre-symptomatic 

and asymptomatic unvaccinated 

employees, employers can remove them 

from the workplace to prevent those 

employees from spreading SARS–CoV– 

2 to other employees. More information 

about the removal requirements in this 

ETS is available in the Summary and 

Explanation for paragraph (h) (Section 

VI.H. of this preamble). 

Since the incubation period for 

COVID–19 can be up to 14 days, the 

CDC recommends that screening testing 

be conducted at least weekly in nonhealthcare workplaces (CDC, October 7, 

2021; CDC, May 4, 2021). Other 

researchers also recognize the 

effectiveness of weekly screening testing 

to control surges of COVID–19 

infections (Larremore, January 1, 2021). 

Consequently, in workplaces with 

unvaccinated employees, OSHA has set 

the minimum frequency of testing 

unvaccinated workers at seven days 

because the agency expects that it will 

be effective in slowing the spread of 

COVID–19 in those workplaces, when 

used in tandem with face coverings 

(paragraph (i)) and removal of infected 

individuals (paragraph (h)). OSHA 

emphasizes that each of these infection 

controls provides some protection from 

COVID–19 by itself, but that they work 

best when used together, layering their 

protective impact to boost overall 

effectiveness. Although some studies 

have shown that more regular screening 

testing (e.g., twice weekly) would 

identify even more cases, OSHA has 

decided to require testing only on a 

weekly basis. This is in line with the 

CDC recommendations, and as noted 

above the evidence shows that this 

frequency is effective in detecting 

asymptomatic and pre-symptomatic 

cases. A more frequent testing schedule 

would result in significant additional 

costs, and OSHA is hesitant to impose 

these costs and depart from CDC 

recommendations without a fuller 

record generated through the benefit of 

notice and comment rulemaking. OSHA 

seeks comment on this issue. 

Nonetheless, it should be noted that 

nothing in this rule prevents screening 

testing from being conducted more 

frequently based on factors such as the 

level of community transmission, 

workplace experience with outbreaks, 

and type of workplace (e.g., specific 

workplace factors such as high volume 

retail or critical infrastructure sector). 

Early detection of COVID–19-positive 

employees through screening testing of 

unvaccinated employees also facilitates 

early medical intervention, when 

appropriate, to avoid the most severe 

health outcomes associated with 

COVID–19. Early effective treatment of 

disease can help avert progression to 

more serious illness, especially for 

patients at high risk of disease 

progression and severe illness, with the 

additional benefit of reducing the 

burden on healthcare systems (CDC, 

December 4, 2021). For example, antiSARS–CoV–2 monoclonal antibodies 

have been shown to reduce the risk of 

hospitalization and death in the 

outpatient setting in those with mild to 

moderate COVID–19 symptoms and 

certain risk factors for disease 

progression. Treatment should be 

started as soon as possible after the 

patient receives a positive result on a 

COVID–19 test and within 10 days of 

symptom onset (NIH, September 24, 

2021). Any COVID–19 medical 

treatment should be used in accordance 

with a licensed healthcare provider. The 

screening tests required by this rule will 

facilitate such treatment. 

Pursuant to paragraph (g)(1)(i), 

covered employers must ensure that 

each employee who is not fully 

vaccinated and reports at least once 

every seven days to a workplace where 

other individuals (e.g., coworkers, 

customers) are present: (A) Is tested for 

COVID–19 at least once every seven 

days; and (B) provides documentation of 

the most recent COVID–19 test result to 

the employer no later than the 7th day 

following the date on which the 

employee last provided a test result. 

Employers must ensure these 

unvaccinated employees are tested at 

least once every seven calendar days, 

regardless of their work schedule. For 

example, an unvaccinated part-time 

employee who is scheduled to work 

only every Monday and Tuesday must 

still be tested at least once every seven 

days. Because employees must provide 

documentation of their most recent 

COVID–19 test results to their 

employers no later than the 7th day 

following the date on which they last 

provided a test result, employees may 

want to set a schedule for their testing 

(e.g., get a COVID–19 test every 

Wednesday). A consistent testing day 

may help employees ensure their 

documentation is provided every seven 

calendar days. 


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Paragraph (g)(1)(ii) addresses 

situations where an employee does not 

report to a workplace where other 

individuals, such as coworkers or 

customers, are present during a period 

of seven or more days (e.g., when an 

employee is teleworking for an extended 

period of time). In such cases, the 

employer must ensure the employee is 

tested for COVID–19 within seven days 

prior to returning to the workplace and 

provides documentation of that test 

result to the employer upon return to 

the workplace. For example, if an 

unvaccinated office employee has been 

teleworking for two weeks but must 

report to the office, where other 

employees will be present (e.g., 

coworkers, security officers, mailroom 

workers), on a specific Monday to copy 

and fax documents, that employee must 

receive a COVID–19 test within the 

seven days prior to the Monday and 

provide documentation of that test 

result to the employer upon return to 

the workplace. The employee’s test 

must occur within the seven days before 

the Monday the employee is scheduled 

to report to the office, but it also must 

happen early enough to allow time for 

the results to be received before 

returning to the workplace. Similarly, 

unvaccinated new hires would need to 

be tested for COVID–19 within seven 

days prior to reporting to a workplace 

where other employees will be present 

and provide documentation of their test 

results no later than arrival on their first 

day of work. Since point-of-care testing 

that uses an antigen test allows for 

results within minutes, OSHA does not 

expect that scheduling tests or 

providing results to employers will be 

an impediment. 

OSHA chose the seven-day period for 

employees returning to work after more 

than a week away from the workplace 

based on the evidence noted above 

about the effectiveness of testing at 

seven-day intervals. While it considered 

using a shorter time period in this 

situation, OSHA concluded that it 

would be less confusing for employers 

to use a uniform time period for both 

situations. OSHA was concerned that 

requiring different time periods in the 

two situations would cause confusion 

among both employees and supervisors 

implementing the program that would 

undermine the effectiveness of the 

testing scheme. OSHA seeks comment 

on this issue. 

An employer has some discretion 

regarding how to satisfy its obligations 

under paragraph (g)(1), but those 

policies and procedures must be 

detailed in the employer’s written 

policy pursuant to paragraph (d)(2) of 

this ETS. For example, the employer 

must specify how testing will be 

conducted (e.g., testing provided by the 

employer at the workplace, employees 

independently scheduling tests at pointof-care locations, etc.). The employer 

must also specify in their policy how 

employees should provide their COVID– 

19 test results to the employer (e.g., an 

online portal, to the human resources 

department). The Summary and 

Explanation for paragraph (d) (Section 

VI.D. of this preamble) provides 

additional information regarding the 

requirements of paragraph (d)(2) of this 

ETS. Test results given to the employer 

must contain information that identifies 

the worker (i.e., full name plus at least 

one other identifier, such as date of 

birth), the specimen collection date, the 

type of test, the entity issuing the result 

(e.g., laboratory, healthcare entity), and 

the test result. 

If an employer is notified that an 

employee has a positive screening test, 

the employer must remove that 

employee from the workplace pursuant 

to paragraph (h)(2) of this ETS. The 

employee should quarantine and the 

employer must not allow the employee 

to return to the workplace until they 

meet the requirements in paragraphs 

(h)(2)(i) through (iii). More discussion of 

employee notification to their employer 

of a COVID–19 positive status and 

removal requirements is available in the 

Summary and Explanation for 

paragraph (h) (Section VI.H. of this 

preamble). 

OSHA expects that most screening 

testing will be antigen testing that is 

conducted at point-of-care locations due 

to the reduced cost and faster processing 

time when compared to NAAT testing 

in laboratories. Most NAATs need to be 

processed in a laboratory with variable 

time to results (approximately 1–2 

days). In contrast, most antigen tests can 

be processed at the point of care with 

results available in about 15–30 minutes 

(CDC, October 7, 2021). Rapid point-ofcare tests are administered in various 

settings, such as: Physician offices, 

urgent care facilities, pharmacies, 

school health clinics, workplace health 

clinics, long-term care facilities and 

nursing homes, and at temporary 

locations, such as drive-through sites 

managed by local organizations. As 

explained above, COVID–19 tests that 

are both self-administered and self-read 

do not meet the definition of ‘‘COVID– 

19 test’’ in this ETS (unless observed by 

the employer or an authorized 

telehealth proctor) and therefore do not 

satisfy the testing requirements of 

paragraph (g). 

Because antigen testing in point-ofcare locations will typically produce 

results within minutes, the use of 

antigen testing should not result in an 

inability to provide the employer with 

test results in a timely fashion. 

However, the agency recognizes that 

where the employee or employer uses 

an off-site laboratory for testing, there 

may be delays beyond the employee’s or 

employer’s control. In the event that 

there is a delay in the laboratory 

reporting results and the employer 

permits the employee to continue 

working, OSHA will look at the pattern 

and practice of the individual employee 

or the employer’s testing verification 

process and consider refraining from 

enforcement where the facts show good 

faith in attempting to comply with the 

standard. 

OSHA has determined that employers 

may use pooling procedures to satisfy 

the requirements of screening testing 

under paragraph (g)(1). Pooling (also 

referred to as pool testing or pooled 

testing) means combining the same type 

of specimen from several people and 

conducting one laboratory test on the 

combined pool of specimens to detect 

SARS–CoV–2 (e.g., four samples may be 

tested together, using only the resources 

needed for a single test). The advantages 

of pooling include preserving testing 

resources, reducing the amount of time 

required to test large numbers of 

specimens (increasing throughput), and 

lowering the overall cost of testing 

(CDC, June 30, 2021). 

If pooling procedures are used and a 

pooled test result comes back negative, 

then all the specimens can be presumed 

negative with the single test. In other 

words, all of the employees who 

provided specimens for that pool test 

can be assumed to have a negative test 

result for SARS–CoV–2 infection. 

Therefore, documentation of the 

negative pooled test result would satisfy 

the paragraph (g)(1) documentation 

requirement for each employee in the 

pool and no additional testing is 

necessary. However, if the pooled test 

result is positive, immediate additional 

testing would be necessary to determine 

which employees are positive or 

negative. Each of the original specimens 

collected in the pool must be tested 

individually to determine which 

specimen(s) is (are) positive. If original 

specimens from the workers in a pooled 

test with a positive result are 

insufficient to be subsequently tested 

individually, those workers in the 

positive pool would need to be 

immediately re-swabbed and tested. The 

individual employee test results would 

be necessary to satisfy the employee 

documentation requirements of 

paragraph (g)(1). Where pooled testing is 

used (in accordance with paragraph 

(g)(1)), CDC and FDA procedures and 


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recommendations for implementing 

screening pooled tests should be 

followed (CDC, June 30, 2021; FDA, 

August 24, 2020). OSHA notes that only 

some tests are authorized for pooled 

testing, and should be performed per the 

authorization. 

In a note to paragraph (g)(1), OSHA 

explains that this section does not 

require the employer to pay for any 

costs associated with testing. As 

explained in Pertinent Legal Authority, 

Section II. of this preamble, the OSH 

Act authorizes OSHA to require 

employers to bear the costs of 

compliance with occupational safety 

and health standards, but OSHA has 

discretion to decide whether to impose 

certain costs—such as those related to 

medical examinations or other tests—on 

employers ‘‘[w]here [it determines that 

such costs are] appropriate.’’ 29 U.S.C. 

655(b)(7). OSHA has commonly 

required employers to bear the costs of 

compliance with standards as a cost of 

doing business, including requiring 

employers to bear the costs of medical 

examinations and procedures (see, e.g., 

29 CFR 1910.1018(n)(1)(i) (inorganic 

arsenic standard requires employers to 

ensure that medical examinations and 

procedures are provided ‘‘without cost 

to the employee’’); see also United 

Steelworkers, 647 F.2d at 1229–31 

(discussing Lead standard’s medical 

removal provisions and OSHA’s 

authority for imposing cost of medical 

removal on employers)). Requiring 

employers to bear the costs of 

compliance makes it more likely that 

employees will take advantage of 

workplace protections (see 86 FR 

32605). For example, employees are 

more likely to use personal protective 

equipment (PPE) when employers 

provide the PPE to their employees at 

no cost (see 72 FR 64342, 64344). 

In this ETS, OSHA has largely 

required employers to bear the costs of 

compliance, including the typical costs 

associated with vaccination, but has 

determined that it would not be 

appropriate to impose on employers any 

costs associated with COVID–19 testing 

for employees who choose not to be 

vaccinated. As explained in Need for 

the ETS, Section III.B. of this preamble, 

this ETS is designed to strongly 

encourage vaccination because 

vaccination is the most efficient and 

effective control for protecting 

unvaccinated workers from the grave 

danger posed by COVID–19. COVID–19 

testing is only required under the ETS 

where an employee has made an 

individual choice to forgo vaccination 

and pursue a less protective option. 

Given the superior protectiveness of 

vaccination, and OSHA’s intent for this 

ETS to strongly encourage vaccination, 

requiring employers to bear the costs of 

COVID–19 testing would be counterproductive. As mentioned above, 

requiring employers to pay for 

workplace protections makes it more 

likely that employees will take 

advantage of that protection, and in this 

ETS, OSHA intends to strongly 

encourage employees to choose 

vaccination, not regular COVID–19 

testing. Because employees who choose 

to remain unvaccinated will generally 

be required to pay for their own COVID– 

19 testing, this standard creates a 

financial incentive for those employees 

to become fully vaccinated and avoid 

that cost. 

Although this ETS does not require 

employers to pay for testing, employer 

payment for testing may be required by 

other laws, regulations, or collective 

bargaining agreements or other 

collectively negotiated agreements. This 

section also does not prohibit the 

employer from paying for costs 

associated with testing required by 

paragraph (g)(1) of this section. 

Otherwise, the agency leaves the 

decision regarding who pays for the 

testing to the employer. Because OSHA 

does not specify who pays for the 

testing, OSHA expects that some 

workers and/or their representatives 

will negotiate the terms of payment. 

OSHA has also considered that some 

employers may choose to pay for some 

or all of the costs of testing as an 

inducement to keep employees in a tight 

labor market. Other employers may 

choose to put the full cost of testing on 

employees in recognition of the 

employee’s decision not to become fully 

vaccinated. It is also possible that some 

employers may be required to cover the 

cost of testing for employees pursuant to 

other laws or regulations. OSHA notes, 

for instance, that in certain 

circumstances, the employer may be 

required, under the Fair Labor 

Standards Act, to pay for the time it 

takes an employee to be tested (e.g., if 

employee testing is conducted in the 

middle of a work shift). The subject of 

payment for the costs associated with 

testing pursuant to other laws or 

regulations not associated with the OSH 

Act is beyond OSHA’s authority and 

jurisdiction. As explained in a note to 

paragraph (d) of this ETS, under various 

anti-discrimination laws, workers who 

cannot be tested because of a sincerely 

held religious belief may ask for a 

reasonable accommodation from their 

employer. For more information about 

evaluating requests for reasonable 

accommodation for a sincerely held 

religious belief, employers should 

consult the Equal Employment 

Opportunity Commission’s website: 

https://www.eeoc.gov/wysk/what-youshould-know-about-covid-19-and-adarehabilitation-act-and-other-eeo-laws. 

Pursuant to paragraph (g)(2), if an 

employee does not provide the result of 

a COVID–19 test as required by 

paragraph (g)(1), the employer must 

keep the employee removed from the 

workplace until the employee provides 

a test result. This provision is 

imperative because workers with 

asymptomatic or pre-symptomatic 

SARS–CoV–2 infection are significant 

contributors to COVID–19 transmission, 

and screening testing will help to 

identify and remove those individuals 

from the workplace. Employees 

providing accurate and weekly test 

results to their employer is of utmost 

importance for preventing and reducing 

the transmission of COVID–19 in the 

workplace. 

Paragraph (g)(3) provides that when 

an employee has received a positive 

COVID–19 test, or has been diagnosed 

with COVID–19 by a licensed healthcare 

provider, the employer must not require 

that employee to undergo COVID–19 

testing for 90 days following the date of 

their positive test or diagnosis. This 

provision is specifically intended to 

prohibit screening testing for 90 days 

because of the high likelihood of false 

positive results that do not indicate 

active infection but are rather a 

reflection of past infection. Studies of 

patients who were hospitalized and 

recovered indicate that SARS–CoV–2 

RNA can be detected in upper 

respiratory tract specimens for up to 

three months (90 days) after symptom 

onset (CDC, August 2, 2021; CDC, 

September 14, 2021). If employees were 

to be subjected to screening tests in such 

a situation it would both undermine the 

confidence in the COVID–19 screening 

tests and could result in a harm to the 

worker of being unnecessarily removed 

from the workplace and subjected to the 

additional burden of unnecessary tests. 

Where employers implement a 

vaccination policy that allows 

employees to choose to provide proof of 

regular testing and wear a face covering 

rather than getting vaccinated, the 

employer’s policy and procedures to 

implement this temporary suspension of 

testing must be included in their written 

workplace policy as required by 

paragraph (d)(2) of this ETS. 

Paragraph (g)(4) provides that the 

employer must maintain a record of 

each test result required to be provided 

by each employee under paragraph 

(g)(1) of this ETS or obtained during 

tests conducted by the employer. These 

records must be maintained in 


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accordance with 29 CFR 1910.1020 as 

an employee medical record and must 

not be disclosed except as required by 

this ETS or other federal law. However, 

these records are not subject to the 

retention requirements of 29 CFR 

1910.1020(d)(1)(i) (Employee medical 

records), but must be maintained and 

preserved while this ETS remains in 

effect. 

Additionally, paragraph (l) of this ETS 

includes specific timeframes for 

providing access to records, including 

the COVID–19 test results required by 

paragraph (g)(1). As a result, the 

timeframes for providing access to 

employee medical records in 29 CFR 

1910.1020(e) do not apply. Instead, 

when providing access to an employee, 

anyone with written authorized consent 

from that employee, and OSHA, 

employers must follow the access 

timeframes set forth in paragraph (l) of 

this ETS. The Summary and 

Explanation for paragraph (l) (Section 

VI.L. of this preamble) contains 

additional information about accessing 

records gathered pursuant to paragraph 

(g)(1). 

Finally, while the access timeframes 

in 29 CFR 1910.1020(e) and retention 

requirements of 29 CFR 

1910.1020(d)(1)(i) do not apply to test 

result records required by this ETS, the 

other provisions in 29 CFR 1910.1020 

do apply. For example, 29 CFR 

1910.1020(h) includes requirements for 

the transfer of employee medical 

records when an employer ceases to do 

business. Like the vaccine records 

required by paragraph (e)(4) of this ETS, 

and because they concern the health 

status of an employee, test result records 

required by paragraph (g)(1) are 

employee medical records for purposes 

of 29 CFR 1910.1020. These test result 

records contain personally identifiable 

medical information and must be 

maintained in a confidential manner. 

The Summary and Explanation for 

paragraph (e) (Section VI.E. of this 

preamble) contains additional 

information about the interplay between 

this ETS and OSHA’s regulation at 29 

CFR 1910.1020. 

References 

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of Asymptomatic and Presymptomatic 

Transmission in SARS–CoV–2 Outbreak, 

Germany, 2020. https://wwwnc.cdc.gov/ 

eid/article/27/4/20-4576_article. (Bender 

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Centers for Disease Control and Prevention 

(CDC). (2021, August 2). COVID–19 

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(CDC). (2021, September 10). Using 

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lab/resources/antibody-tests.html. (CDC, 

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(CDC). (2021, September 14). Ending 

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hcp/duration-isolation.html. (CDC, 

September 14, 2021). 

Centers for Disease Control and Prevention 

(CDC). (2021, September 15). Science 

Brief: COVID–19 Vaccines and 

Vaccination. https://www.cdc.gov/ 

coronavirus/2019-ncov/science/sciencebriefs/fully-vaccinated-people.html. 

(CDC, September 15, 2021). 

Centers for Disease Control and Prevention 

(CDC). (2021, October 7) Interim 

Guidance for SARS–CoV–2 Testing in 

Non-Healthcare Workplaces. https://

www.cdc.gov/coronavirus/2019-ncov/ 

community/organizations/testing-nonhealthcare-workplaces.html. (CDC, 

October 7, 2021). 

Food and Drug Administration (FDA). (2020, 

August 24). Pooled Sample Testing and 

Screening Testing for COVID–19. https:// 

www.fda.gov/medical-devices/ 

coronavirus-covid-19-and-medicaldevices/pooled-sample-testing-andscreening-testing-covid-19. (FDA, August 

24, 2020). 

Food and Drug Administration (FDA). (2021, 

May 19). Antibody Testing Is Not 

Currently Recommended to Assess 

Immunity After COVID–19 Vaccination: 

FDA Safety Communication. https://

www.fda.gov/medical-devices/safetycommunications/antibody-testing-notcurrently-recommended-assessimmunity-after-covid-19-vaccinationfda-safety. (FDA, May 19, 2021). 

Food and Drug Administration (FDA). (2021, 

October 6). In Vitro Diagnostics EUAs. 

https://www.fda.gov/medical-devices/ 

coronavirus-disease-2019-covid-19- 

emergency-use-authorizations-medicaldevices/in-vitro-diagnostics-euas. (FDA, 

October 6, 2021). 

Griffin JB et al. (2021, August 27). SARS– 

CoV–2 infections and hospitalizations 

among persons aged ≥16 years, by 

vaccination status—Los Angeles County, 

California, May 1–July 25, 2021. MMWR 

70: 1170–1176. http://dx.doi.org/ 

10.15585/mmwr.mm7034e5. (Griffin et 

al., August 27, 2021). 

Johansson MA et al. (2021, January 7). SARS– 

CoV–2 transmission from people without 

COVID–19 symptoms. JAMA Network 

Open. 4(1): e2035057. doi:10.1001/ 

jamanetworkopen.2020.35057. 

(Johansson et al., January 7, 2021). 

Klompas M et al., (2021, September). The 

case for mandating COVID–19 vaccines 

for health care workers. Annals of 

Internal Medicine. https://doi.org/ 

10.7326/M21-2366. (Klompas et al., 

September 2021). 

Larremore DB et al. (2021, January 1). Test 

sensitivity is secondary to frequency and 

turnaround time for COVID–19 

screening. Sci Adv 2021; 7(1): eabd5393. 

https://doi.org/10.1126/sciadv.abd5393. 

(Larremore, January 1, 2021). 

Lopez Bernal et al. (2021, July 21). 

Effectiveness of COVID–19 vaccines 

against the B.1.617.2 (Delta) variant. The 

New England Journal of Medicine, 

385(7), 585–594. https://doi.org/10.1056/ 

NEJMoa2108891. (Lopez Bernal, July 21, 

2021). 

National Institutes of Health (NIH). (2021, 

September 24). Therapeutic Management 

of Nonhospitalized Adults With COVID– 

19. https://www.covid19treatmentguide

lines.nih.gov/management/clinicalmanagement/nonhospitalized-adults-- 

therapeutic-management/. (NIH, 

September 24, 2021). 

Nishiura H et al. (2020, March 4). Serial 

interval of novel coronavirus (COVID– 

19) infections. Int J Infect Dis. 2020 Apr; 

93: 284–286. doi:10.1016/ 

j.ijid.2020.02.060. Epub 2020 Mar 4. 

PMID: 32145466; PMCID: PMC7128842. 

(Nishiura et al., March 4, 2020). 

Sah P et al. (2021, August 10). Asymptomatic 

SARS–COV–2 infection: A systematic 

review and meta-analysis. Proceedings of 

the National Academy of Sciences, 

118(34), 1–12. https://doi.org/10.1073/ 

pnas.2109229118. (Sah et al., August 10, 

2021). 

Schulte P et al. (2021, May 19). Proposed 

Framework for Considering SARS–CoV– 

2 Antigen Testing of Unexposed 

Asymptomatic Workers in Selected 

Workplaces. J Occup Environ Med. 2021 

Aug; 63(8): 646–656. Published online 

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Smith R et al. (2021, September 15). 

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https://doi.org/10.1093/infdis/jiab337. 

(Smith et al., September 15, 2021). 

Tindale LC et al. (2020, June 22). Evidence 

for transmission of COVID–19 prior to 

symptom onset. Elife. 2020; 9: e57149. 

Published 2020 Jun 22. doi:10.7554/ 

eLife.57149. (Tindale et al., June 22, 

2020). 

H. Employee Notification to Employer of 

a Positive COVID–19 Test and Removal 

Employers can substantially reduce 

disease transmission in the workplace 

by removing employees who are 

confirmed to have COVID–19 based on 

a COVID–19 test or diagnosis by a 

healthcare provider. It is necessary that 

employees who are confirmed to have 

COVID–19 be removed from the 

workplace to prevent transmission to 

other employees. Several studies have 

focused on the impact of isolating 

persons with COVID–19 from others 

during their likely known infectious 

period, and those studies show that 

isolation is a strategy that reduces the 

transmission of infections. For example, 

Kucharski et al. (2020) found that 

transmission of SARS–CoV–2 would 

decrease by 29% with self-isolation 

within the household, which would 

extend to 37% if the entire household 

quarantined. Similarly, Wells et al. 

(2021) found that isolation of 

individuals at symptom onset would 

decrease the reproductive rate (R0) of 

COVID–19 from 2.5 to 1.6. Lastly, 

Moghadas et al. (2020) reported results 

that highlight the role of silent 

transmission, from a combination of the 

pre-symptomatic stage and 

asymptomatic infections, as the primary 

driver of COVID–19 outbreaks and 

underscore the need for mitigation 

strategies, including those that detect 

and isolate infectious individuals prior 

to the onset of symptoms. Isolating 

contagious employees from their coworkers can prevent further spread at 

the workplace and safeguard the health 

of other employees. 

Paragraph (h) provides that employers 

must require each employee to promptly 

notify the employer when the employee 

receives a positive COVID–19 test or is 

diagnosed with COVID–19 by a licensed 

healthcare provider. This notification 

must occur regardless of employee 

vaccination status. As discussed in 

Grave Danger (Section III.A. of this 

preamble), exposure to SARS–CoV–2 in 

the workplace presents a grave danger to 

employees; removing those who are 

confirmed to have COVID–19 from the 

workplace mitigates that grave danger. 

This is true even for fully vaccinated 

employees since they also have the 

potential to transmit COVID–19 to other 

individuals, including other employees. 

Because the goal of this ETS, and the 

notification requirements in this 

paragraph, is to reduce transmission of 

COVID–19 in the workplace, employees 

are required to notify the employer of 

any COVID–19 positive test or diagnosis 

that they receive, not just positive 

results that are received from testing 

required under paragraph (g) of this 

ETS. 

Paragraph (h)(1) states that the 

employer must require each employee 

who is COVID–19 positive to notify the 

employer of their COVID–19 test result 

or diagnosis ‘‘promptly.’’ For employees 

who are not at the workplace when they 

receive a positive COVID–19 test result 

or diagnosis, ‘‘promptly’’ notifying the 

employer means notifying the employer 

as soon as practicable before the 

employee is scheduled to start their 

shift or return to work. In the event that 

the employee is in the workplace when 

they receive a positive COVID–19 test 

result or diagnosis of COVID–19, 

‘‘promptly’’ notifying the employer 

means notifying the employer as soon as 

safely possible while avoiding exposing 

any other individuals in the workplace. 

The employer should establish 

notification procedures and inform 

employees about these procedures (see 

paragraph (j)(1)), so that employees are 

aware of the appropriate method for 

providing this notification to their 

employer. These notification procedures 

can be based on the employer’s current 

protocols for employees to notify the 

employer if they are not able to come to 

work or need to leave work because of 

illness or injury. However the employer 

chooses to implement its notification 

procedures, it must ensure that an 

employee notification of a positive 

COVID–19 test or diagnoses results in 

the employee’s immediate removal from 

the workplace, as required under 

paragraph (h)(2). For example, the 

employer may require employees to 

report any positive COVID–19 test or 

diagnosis to a company supervisor with 

the authority to temporarily remove the 

employee from the workplace. If an 

employer takes all steps required under 

this paragraph but an employee fails to 

report required information, the ETS 

does not dictate that any disciplinary 

action be taken against the employee. If 

an employer is cited by OSHA under 

this provision under such 

circumstances, the employer is entitled 

to contest the citation if it can establish 

an employee misconduct defense in 

accordance with applicable case law. 

The notification requirement in 

paragraph (h)(1) is an important 

measure to ensure employers can take 

adequate steps to protect their 

employees from the hazard of COVID– 

19 because it is connected to a parallel 

requirement in paragraph (h)(2) to 

remove, from the workplace, any 

employee who receives a positive 

COVID–19 test or is diagnosed with 

COVID–19. It is important to remove 

employees who test positive or are 

diagnosed with COVID–19 from the 

workplace as soon as possible to prevent 

the transmission of COVID–19 to other 

employees. Therefore, the requirement 

that employees promptly inform their 

employer of a positive COVID–19 test 

result or COVID–19 diagnosis is 

necessary because this information 

allows the employer to take actions to 

protect other employees, including most 

critically by removing employees whose 

illness poses a direct threat of infection 

to other employees in the workplace. 

Paragraph (h)(2) requires employers to 

immediately remove from the workplace 

any employee, regardless of vaccination 

status, who receives a positive COVID– 

19 test or is diagnosed with COVID–19 

by a licensed healthcare provider. 

OSHA determined that directing an 

employee who tests positive or is 

diagnosed with COVID–19 to stay home 

until return to work criteria are 

achieved is critical to preventing the 

transmission of COVID–19 in the 

workplace. Similar to the notification 

required in paragraph (h)(1), this 

removal must occur regardless of 

employee vaccination status since 

someone who is fully vaccinated can 

still transmit COVID–19 to others, 

including other employees (see Grave 

Danger, Section III.A. of this preamble). 

OSHA notes that, in most 

circumstances, any positive COVID–19 

test would result in removal. However, 

this is not necessarily the case where an 

employer uses pooled COVID–19 

testing, a method where one laboratory 

test is conducted using the specimens of 

several people to detect the virus that 

causes COVID–19 (CDC, June 30, 2021). 

If an employer conducts pooled testing 

for COVID–19, a positive pooled test 

result would trigger a need to 

immediately re-test those employees in 

the pool using an individual COVID–19 

test because the positive pooled result 

would not satisfy the requirements of 

paragraph (g). Only those employees 

who test positive on their individual retest would need to be removed from the 

workplace. 

OSHA intends ‘‘removal’’ under 

paragraph (h)(2) to refer only to the 

temporary removal from the workplace 

of an employee while that employee is 

infectious. The requirement in 

paragraph (h)(2) to temporarily remove 

a COVID–19 positive employee from the 

workplace does not mean permanent 

removal of an employee from their 

position. Any time an employee is 


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required to be removed from the 

workplace under paragraph (h)(2) of this 

section, the employer can require the 

employee to work remotely or in 

isolation if suitable work is available 

and if the employee is not too ill to 

work. In cases where working remotely 

or in isolation is not possible, OSHA 

encourages employers to consider 

flexible and creative solutions, such as 

a temporary reassignment to a different 

position that can be performed by 

telework. However, if an employee is 

too ill to work, remote work should not 

be required, and sick leave or other 

leave should be made available as 

consistent with the employer’s general 

policies and practices, and as may be 

required under applicable laws. 

After an employee has been removed 

from the workplace as required by 

paragraph (h)(2), the employer must 

ensure that they do not return to the 

workplace until the employee meets one 

of three criteria outlined in paragraphs 

(h)(2)(i) through (h)(2)(iii). The purpose 

of these provisions is to ensure that an 

employee who has COVID–19 does not 

return to work until the risk that they 

will transmit the disease to others in the 

workplace has been minimized. Each of 

these provisions is based on the best 

scientific evidence available on when a 

person with COVID–19 is no longer 

likely to transmit the virus. 

Under paragraph (h)(2)(i), the 

employee can return to work if they 

receive a negative result on a COVID–19 

nucleic acid amplification test (NAAT) 

following a positive result on a COVID– 

19 antigen test (the most common 

screening test). There is a small 

possibility for employees to receive false 

positive test results when conducting 

regular screening with an antigen test. 

Positive results are usually highly 

accurate at moderate-to-high peak viral 

load, but false positives can occur, 

depending on the course of infection 

(FDA, April 2021). OSHA recognizes 

that an employee might choose to seek 

a NAAT test for confirmatory testing. 

NAATs are considered the ‘‘gold 

standard’’ for clinical diagnosis of 

SARS–CoV–2 and may have a higher 

sensitivity (i.e., ability to correctly 

generate a positive result) than antigen 

tests (CDC, September 9, 2021). If an 

employee tested positive for COVID–19 

via an antigen test, but then received 

follow-up confirmatory testing via a 

NAAT and the NAAT was negative, the 

positive antigen test can be considered 

a false positive and the employee can 

return to work (CDC, September 9, 

2021). For a more detailed discussion of 

COVID–19 tests, see the Summary and 

Explanation for paragraph (c) (Section 

VI.C. of this preamble). 

The employee may also return to 

work if they meet the return to work 

criteria in CDC’s ‘‘Isolation Guidance’’ 

(incorporated by reference, § 1910.509) 

(CDC, February 18, 2021) as described 

in paragraph (h)(2)(ii). CDC’s guidance 

states that a COVID–19 positive person 

can stop isolating when three criteria 

are met: (1) At least ten days have 

passed since the first appearance of the 

person’s symptoms; (2) the person has 

gone at least 24 hours without a fever 

(without the use of fever-reducing 

medication); and (3) the person’s other 

symptoms of COVID–19 are improving 

(excluding loss of taste and smell). If a 

person has tested positive but never 

experiences symptoms, then the person 

can stop isolating after ten days from the 

date of their positive test. These 

recommendations are based on 

scientific evidence reviewed by CDC, 

which indicates that levels of viral RNA 

in upper respiratory tract samples begin 

decreasing after the onset of symptoms 

(CDC, September 14, 2021). The 

rationale for including CDC’s ‘‘Isolation 

Guidance’’ in the ETS was addressed in 

detail in Need for Specific Provisions in 

the agency’s prior rulemaking on 

1910.502 (see 86 FR 32376, 32455). 

Finally, the employee may return to 

work, per paragraph (h)(2)(iii), if the 

employee receives a return-to-work 

recommendation from a licensed 

healthcare provider. The appropriate 

duration of removal from work for any 

given individual may differ depending 

on factors such as disease severity or the 

health of the employee’s immune 

system. For this reason, the ETS permits 

employers to make decisions about an 

employee’s return to work in 

accordance with guidance from a 

licensed healthcare provider (who 

would be better acquainted with a 

particular employee’s condition). If a 

licensed healthcare provider 

recommends a longer period of isolation 

for a particular employee than the CDC’s 

‘‘Isolation Guidance’’ would otherwise 

recommend, then the employer would 

need to abide by that longer period 

rather than returning the employee to 

work after ten days. 

OSHA’s removal requirements as 

outlined in paragraph (h)(2) are 

intended to set the floor for what is 

required; however, OSHA encourages 

employers who are able to do so to have 

a more robust program of medical 

removal, as indeed some employers 

have already done. In addition to 

removal from the workplace based on a 

positive COVID–19 test or diagnosis of 

COVID–19, employers may consider 

removal based on COVID–19 symptoms 

or certain exposure or close contacts 

employees have had outside of the 

workplace. Similarly, employers may 

consider removing employees from the 

workplace if the employer learns that 

the employee was notified by a state or 

local public health authority to 

quarantine or isolate; the employer 

might even be contacted by such an 

authority directly. Although this ETS 

does not require removal from the 

workplace in those situations, the 

employer might choose to remove 

employees from the workplace, above 

and beyond what is required by this 

ETS. 

Finally, the note to paragraph (h)(2) 

clarifies that this ETS does not require 

employers to provide paid time to any 

employee for removal as a result of a 

positive COVID–19 test or diagnosis of 

COVID–19; however, paid time may be 

required by other laws, regulations, or 

collective bargaining agreements or 

other collectively negotiated 

agreements. On the other hand, the ETS 

does not preclude employers from 

choosing to pay employees for time 

required for removal under this 

standard. Additionally, employers 

should allow their employees to make 

use of any accrued leave in accordance 

with the employer’s policies and 

practices on use of leave. This 

provision, while not placing the burden 

on the employer to provide paid time, 

should not be read as depriving 

employees of the benefits they are 

normally entitled to as part of their 

employment. 

Because it does not require employers 

to provide paid time to employees who 

are removed for a positive COVID–19 

test or diagnosis of COVID–19, this ETS 

differs from OSHA’s COVID–19 

Healthcare ETS, which applies to 

employees in the healthcare industry 

who are expected to be exposed to 

COVID–19, and requires paid medical 

removal protection benefits 

(§ 1910.502(l)(5)) for most employees. 

This difference reflects the structure and 

focus of this ETS relative to the 

Healthcare ETS. The Healthcare ETS 

requires employees to report symptoms 

of COVID–19 to their employers, as well 

as positive COVID–19 tests or diagnoses 

(see § 1910.502(l)(2)), but does not 

require employees to be regularly tested 

for COVID–19. A primary function of 

the payment for medical removal in that 

standard is, therefore, to remove the 

potential for financial disincentives that 

might deter employees from reporting 

any signs or symptoms of COVID–19 

that they experience. Because this ETS 

already requires testing for 

unvaccinated workers, which should 

result in employers learning of cases of 

COVID–19 in unvaccinated workers, 

and does not otherwise require 


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employees to report signs and 

symptoms of COVID–19 to their 

employers, OSHA found that requiring 

employer payment for removal was not 

necessary in this standard. 

As the note to paragraph (h) indicates, 

the employer may be required to follow 

other laws or regulations that would 

require paid medical removal. For 

example, if an employee covered by this 

ETS believes they were exposed to 

COVID–19 in the workplace and then 

tested positive, that employee may be 

entitled to workers’ compensation 

benefits. Workers’ compensation is a 

system already in place to provide 

benefits to employees who get sick or 

injured on the job from occupational 

disease or a work-related injury. Some 

states have expressly clarified or 

expanded their workers compensation 

rules to allow for COVID–19 claims 

during the pandemic (see, e.g., 

Industrial Commission of Arizona, May 

15, 2020; Connecticut Executive Order 

No. 7JJJ, July 24, 2020; Minn. Stat. Ann. 

§ 176.011 Subd. (15)(f), 2020)). 

Finally, the ETS does not contain 

specific requirements under this 

paragraph for the employer to establish 

or maintain records of employee 

notifications of a positive COVID–19 

test or diagnosis of COVID–19 by a 

licensed healthcare provider. However, 

should an employer determine that a 

reported case of COVID–19 is workrelated, the employer must continue to 

record that information on the OSHA 

Forms 300, 300A, and 301, or on 

equivalent forms, if required to do so 

under 29 CFR part 1904. This also 

includes confirmed cases of COVID–19 

identified under paragraph (h) that an 

employer determines are work-related. 

Under 29 CFR part 1904, COVID–19 is 

a recordable illness and employers are 

responsible for recording cases of 

COVID–19 if: (1) The case is a 

confirmed case of COVID–19 as defined 

by the Centers for Disease Control and 

Prevention (CDC); (2) the case is workrelated as defined by 29 CFR part 

1904.5; and (3) the case involves one or 

more of the general recording criteria in 

set forth in 29 CFR part 1904.7 (e.g., 

medical treatment beyond first aid, days 

away from work). Under 29 CFR part 

1904, employers must generally provide 

access to the 300 log to employees, 

former employees, and their 

representatives with the names of 

injured or ill employees included on the 

form. If, however, the employee requests 

that their name not be entered on the 

300 log, the employer must treat their 

illness as a privacy concern case and 

may not enter their name on the log (see 

29 CFR 1904.29(b)(6), (b)(7)(vi)). 

References 

Centers for Disease Control and Prevention 

(CDC). (2021, February 18). Isolate if you 

are sick. https://www.cdc.gov/ 

coronavirus/2019-ncov/if-you-are-sick/ 

isolation.html. (CDC, February 18, 2021). 

Centers for Disease Control and Prevention 

(CDC). (2021, June 30). Interim Guidance 

for Use of Pooling Procedures in SARSCoV–2 Diagnostic and Screening Testing. 

https://www.cdc.gov/coronavirus/2019- 

ncov/lab/pooling-procedures.html. (CDC, 

June 30, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, September 9). Interim 

Guidance for Antigen Testing for SARSCoV–2. https://www.cdc.gov/ 

coronavirus/2019-ncov/lab/resources/ 

antigen-tests-guidelines.html. (CDC, 

September 9, 2021). 

Centers for Disease Control and Prevention 

(CDC). (2021, September 14). Ending 

Isolation and Precautions for People with 

COVID–19: Interim Guidance. https://

www.cdc.gov/coronavirus/2019-ncov/ 

hcp/duration-isolation.html. (CDC, 

September 14, 2021). 

Connecticut Executive Order No. 7JJJ. (2020, 

July 24). Executive Order No. 7JJJ 

Protection of public health and safety 

during COVID–19 pandemic and 

response—rebuttable presumption 

regarding workers compensation benefits 

related to contraction of COVID–19. 

https://portal.ct.gov/-/media/Office-ofthe-Governor/Executive-Orders/LamontExecutive-Orders/Executive-Order-No7JJJ.pdf. (Connecticut Executive Order 

No. 7JJJ, July 24, 2020). 

Food and Drug Administration (FDA). (2021, 

April). Coronavirus Disease 2019 Testing 

Basics. https://www.fda.gov/media/ 

140161/download. (FDA, April 2021). 

Industrial Commission of Arizona. (2020, 

May 15). COVID–19 Workers’ 

Compensation Claims. https://

www.azica.gov/sites/default/files/ 

SPS%20-COVID-19%20FINAL.pdf. 

(Industrial Commission of Arizona, May 

15, 2020). 

Kucharski AJ et al. (2020). Effectiveness of 

isolation, testing, contact tracing, and 

physical distancing on reducing 

transmission of SARS–CoV–2 in 

different settings: a mathematical 

modelling study. The Lancet Infectious 

Disease. 2020 Oct; 20(10): 1151–1160. 

doi:10.1016/S1473–3099(20)30457–6. 

Epub 2020 Jun 16. PMID: 32559451; 

PMCID: PMC7511527. (Kucharski et al., 

2020) 

Minnesota Statutes Annotated, Section 

176.011 Definitions. Subd. 15(f). (2020). 

https://www.revisor.mn.gov/statutes/ 

cite/176.011/pdf. (Minn. Stat. Ann. 

§ 176.011 Subd. (15)(f), 2020) 

Moghadas S et al. (2020, July 6). The 

implications of silent transmission for 

the control of COVID–19 outbreaks. 

Proceedings of the National Academy of 

Sciences of the United States of America, 

117(30), 17513–17515. doi:https://

doi.org/10.1073/pnas.2008373117. 

(Moghadas et al., July 6, 2020) 

Wells CR et al. (2021). Optimal COVID–19 

quarantine and testing strategies. Nature 

Communications 2021 Jan 7; 12(1): 356. 

doi:10.1038/s41467–020–20742–8. 

PMID: 33414470; PMCID: PMC7788536. 

(Wells et al., 2021) 

I. Face Coverings 

Paragraph (i) of this standard 

addresses the use of face coverings. As 

previously discussed in Grave Danger 

(Section III.A. of this preamble), 

COVID–19 spreads when an infected 

person breathes out droplets and very 

small particles that contain the virus. 

These droplets and particles can be 

breathed in by other people or land on 

their eyes, noses, or mouth. Face 

coverings reduce the risk of droplet 

transmission of COVID–19. The CDC 

recommends that people who are not 

fully vaccinated wear a face covering 

(e.g., a mask) in indoor public places. 

(CDC, July 14, 2021). Additional 

discussion on the efficacy of face 

coverings is provided below. 

Face coverings are simple bidirectional barriers that tend to keep 

droplets, and to a lesser extent airborne 

particulates, on the side of the filter 

from which they originate. An 

explanation of the term ‘‘face covering’’, 

as used in this ETS, can be found in the 

Summary and Explanation for 

paragraph (c) (Section VI.C. of this 

preamble). The CDC (August 13, 2021) 

recommends unvaccinated people wear 

face coverings when indoors to prevent 

getting and spreading COVID–19 mostly 

by blocking large respiratory droplets 

from either leaving the face covering of 

the wearer (source control) or by 

preventing someone else’s droplets from 

reaching the wearer (personal 

protection). The need for face coverings 

in workplaces applies particularly to 

unvaccinated workers due to their 

increased potential for asymptomatic 

and pre-symptomatic transmission of 

COVID–19. 

The CDC Healthcare Infection Control 

Practices Advisory Committee’s 

(HICPAC) ‘‘Isolation Guidance’’ for 

healthcare settings has long 

recommended facemasks, among other 

controls, to prevent the transmission of 

viruses that cause respiratory illnesses 

(Siegel et al., 2007). Face coverings play 

an important dual role in protecting 

workers from droplet transmission of 

COVID–19. One of their key purposes is 

to function as source control. In this 

role, the face covering helps protect 

people around the wearer by reducing 

the number of infectious droplets 

released into the air by the wearer and 

limiting the distance traveled by any 

particles that are released. As a result, 

anyone near the wearer is exposed to 

fewer (if any) droplets and the 

transmission risk is lowered (OSHA, 


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January 28, 2021; Siegel et al., 2007). 

Face coverings also provide a degree of 

particulate filtration to reduce the 

amount of inhaled particulate matter, 

meaning face coverings can help protect 

the wearer themselves, by reducing their 

inhalation of droplets produced by an 

infected person nearby (CDC, May 7, 

2021; Brooks et al., February 10, 2021). 

The efficacy of any given face 

covering in either functioning as source 

control or protecting the wearer will 

depend on the construction, design, and 

material used for the face covering. The 

CDC has stated that ‘‘masks are 

primarily intended to reduce the 

emission of virus-laden droplets 

(‘‘source control’’), which is especially 

relevant for asymptomatic or 

presymptomatic infected wearers who 

feel well and may be unaware of their 

infectiousness to others, and who are 

estimated to account for more than 50% 

of transmissions’’ (CDC, May 7, 2021). 

The CDC has also stated that: ‘‘Multilayer cloth masks block release of 

exhaled respiratory particles into the 

environment, along with the 

microorganisms these particles carry. 

Cloth masks not only effectively block 

most large droplets (i.e., 20–30 microns 

and larger) but they can also block the 

exhalation of fine droplets and particles 

(also often referred to as aerosols) 

smaller than 10 microns; which increase 

in number with the volume of speech 

and specific types of phonation. Multilayer cloth masks can both block up to 

50–70% of these fine droplets and 

particles and limit the forward spread of 

those that are not captured. Upwards of 

80% blockage has been achieved in 

human experiments that have measured 

blocking of all respiratory droplets, with 

cloth masks in some studies performing 

on par with surgical masks as barriers 

for source control’’ (CDC, May 7, 2021). 

Thus, the construction of the face 

covering is a significant factor in 

determining its efficacy at reducing 

COVID–19 transmission. 

While face coverings are generally 

effective as source control, because of 

the potential variations in protective 

properties, OSHA has not considered 

face coverings that are not certified to a 

consensus standard to be personal 

protective equipment (PPE) under 

OSHA’s general PPE standard (29 CFR 

1910.132), as there is insufficient 

assurance that any given face covering 

is of safe design and construction for the 

work to be performed, which is required 

by the PPE standard. Despite these 

limitations, many of the available face 

coverings have proven to be effective at 

providing source control, and where a 

face covering is also effective in 

providing personal protection, the 

wearer will be at reduced risk of, and 

could be protected from, infection. 

Accordingly, over the course of the 

pandemic, through its guidance, OSHA 

has strongly encouraged workers to 

wear face coverings when they are in 

close contact with others to reduce the 

risk of spreading COVID–19 despite the 

shortcomings that have prevented the 

agency from considering them to be PPE 

that complies with the requirement of 

the PPE standard. To enhance the 

effectiveness of any face covering 

required by this standard, this ETS 

imposes certain minimum design 

criteria, consistent with CDC 

recommendations. Thus, the face 

covering must consist of at least two 

layers of material that is either tightly 

woven or non-woven, and the face 

covering must not have visible holes or 

openings. CDC has found face coverings 

that are tightly woven and made with at 

least two layers are more effective at 

filtering droplets than face coverings 

that are loosely woven or consist of a 

single layer of fabric (CDC, May 7, 2021; 

Ueki et al., June 25, 2020). 

OSHA’s determination on the 

importance of face coverings is 

supported by a substantial body of 

evidence. As described in further detail 

below, consistent and correct use of face 

coverings is widely recognized and 

scientifically supported as an important 

evidence-based strategy for COVID–19 

control. Accordingly, with specific 

exceptions relevant to outdoor areas and 

vaccinated persons, the CDC 

recommends everyone two years of age 

and older wear a face covering in public 

settings and when around people 

outside of their household (CDC, August 

13, 2021). And, on January 21, 2021, 

President Biden issued Executive Order 

13998, which recognizes the use of face 

coverings or facemasks as a necessary, 

science-based public health measure to 

prevent the spread of COVID–19, and 

therefore directed regulatory action to 

require that they be worn in compliance 

with CDC guidance while traveling on 

public transportation (e.g., buses, trains, 

subway) and while at airports 

(Executive Order 13998, 86 FR 7205, 

7205 (Jan. 21, 2021); CDC, February 2, 

2021). Similarly, the World Health 

Organization (WHO) has recognized face 

coverings as a key measure in 

suppressing COVID–19 transmission, 

and thus, saving lives. The WHO 

observes that face coverings serve two 

purposes, to both protect healthy people 

from acquiring COVID–19 and to 

prevent sick people from further 

spreading it. Since December of 2020, 

the WHO has recommended that the 

general public wear face coverings in 

indoor settings and in outdoor settings 

where physical distancing cannot be 

maintained (WHO, December 1, 2020). 

In the United States, several states 

have imposed statewide face covering 

mandates in order to mitigate the spread 

of COVID–19. One study examined data 

on statewide face covering mandates 

during March 1–October 22, 2020, and 

found that statewide face covering 

mandates were associated with a 

decline in weekly COVID–19–associated 

hospitalization growth rates by up to 5.6 

percentage points for adults aged 18–64 

years after mandate implementation, 

compared with growth rates during the 

4 weeks preceding implementation of 

the mandate (Joo et al., February 12, 

2021). Similarly, another study 

examined the association of state-issued 

face covering mandates with COVID–19 

cases and deaths during March 1– 

December 31, 2020, and found 

mandating face coverings was 

associated with a decrease in daily 

COVID–19 case and death growth rates 

within 20 days of implementation (Guy 

et al., March 12, 2021). 

School face covering policies for 

students, staff members, faculty, and 

visitors are associated with a reduction 

in COVID–19 outbreaks. Between July 

15 and August 31, 2021, schools in 

Arizona were analyzed for school mask 

policies, which provided that all 

persons, regardless of vaccination 

status, were required to wear a mask 

indoors. The odds of a school-associated 

COVID–19 outbreak in schools without 

a mask requirement were 3.5 times 

higher than those in schools with an 

early mask requirement (Odds Ratio = 

3.5; 95% Confidence Interval = 1.8–6.9) 

(Jehn et al., October 1, 2021). 

The effectiveness of face coverings in 

limiting the emission and spread of 

droplets has also been demonstrated in 

numerous studies. For example, 

multiple studies in which droplets were 

visualized while individuals were 

talking or a manikin was used to 

simulate coughs and sneezes 

demonstrated that two-layer face 

coverings limited the number of 

droplets released into the air, and 

limited the forward spread of those not 

captured (Fischer et al., September 2, 

2020; Verma et al., June 30, 2020; CDC, 

May 7, 2021). 

The effectiveness of face coverings in 

preventing infections was also observed 

in a number of epidemiological studies. 

For example, in June of 2020 an 

outbreak was studied aboard the USS 

Theodore Roosevelt, an environment 

notable for congregate living quarters, 

close working environments, and a 

sample of mostly young, healthy adults. 

The investigation found that use of face 


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coverings on board was associated with 

a 70% reduced risk of transmission, 

which demonstrates that the use of face 

coverings, especially among 

asymptomatic cases, can help mitigate 

future transmission (Payne et al., June 

12, 2020). Another publication, released 

in July of 2020, included an 

investigation of a high-exposure event 

among 139 clients exposed to two 

symptomatic hair stylists with 

confirmed cases of COVID–19. Both of 

the stylists and all of their clients wore 

face coverings during their interactions. 

Among 67 clients subsequently tested 

for COVID–19, all test results were 

negative; no symptomatic secondary 

cases were reported by any clients, 

including those who were not tested. 

The study concluded that the strict use 

of face coverings likely mitigated the 

spread of COVID–19 (Hendrix et al., 

July 17, 2020). 

Several other observational 

epidemiological studies have reviewed 

data regarding the ‘‘real-world’’ 

effectiveness of face covering usage. 

First, in a study of 124 Beijing 

households with one or more 

laboratory-confirmed case of COVID–19, 

face covering use by both the index 

patient and all family contacts before 

the index patient developed symptoms 

reduced secondary transmission (i.e., 

infections occurring within two weeks 

of symptom onset in the index case) 

within the households by 79% (Wang et 

al., May 11, 2020). Second, a 

retrospective case-control study from 

Thailand documented that, among more 

than 1,000 persons interviewed as part 

of contact tracing investigations, those 

who reported having always worn a face 

covering during high-risk exposures 

experienced a greater than 70% reduced 

risk of infection compared with persons 

who did not wear face coverings under 

these circumstances. The risk for 

infection was not significantly lower in 

those who reported only sometimes 

wearing face coverings compared to 

those who did not wear face coverings 

at all. This evidence supports the 

conclusion that face coverings must be 

worn consistently and correctly to 

meaningfully reduce the risk of 

infection (Doung-ngern et al., September 

14, 2020). 

Community-level analyses have also 

confirmed the benefit of universal face 

covering use in: A unified hospital 

system (Wang et al., July 14, 2020); a 

German city (Mitze et al., June 1, 2020); 

a U.S. state (Gallaway et al., October 6, 

2020); a panel of 15 U.S. states and 

Washington, DC (Lyu and Wehby, June 

16, 2020; Hatzius et al., June 29, 2020); 

as well as both Canada (Karaivanov et 

al., October 1, 2020) and the U.S. 

(Chernozhukov et al., September 15, 

2020) nationally. Each community 

analysis demonstrated that, following 

universal face covering directives from 

both organizational and political 

leadership, new infections were shown 

to fall significantly. These analyses have 

also shown reductions in mortality and 

the need for lockdowns, with their 

associated monetary/gross domestic 

product losses (Leffler et al., December 

2, 2020; Hatzius et al., June 29, 2020). 

Additionally, multiple investigations 

involving infected passengers aboard 

flights longer than ten hours strongly 

suggest that face covering usage 

prevented in-flight transmissions, as 

demonstrated by the absence of 

infection developing in other passengers 

and crew in the 14 days following 

exposure (Schwartz et al., April 14, 

2020; Freedman and Wilder-Smith, 

September 25, 2020). 

Researchers from the COVID–19 

Systematic Urgent Review Group Effort 

investigated the effects of face coverings 

and eye protection on virus 

transmission in both healthcare and 

non-healthcare settings. They identified 

172 observational studies for their 

systematic review and 44 comparative 

studies for their meta-analysis, 

including data on 25,697 COVID–19, 

SARS, or MERS patients. They 

concluded for the general public, based 

mainly on evidence from face covering 

use within households and among 

contacts of cases, that disposable 

surgical masks or face coverings 

(reusable multi-layer cotton face 

coverings) are associated with 

protection from viral transmission. 

Through the meta-analysis, combining 

39 of the studies’ results, they found a 

14.3% reduction in the difference of 

anticipated absolute effect (e.g., the 

chance of viral infection or 

transmission) between no face covering 

and face covering groups (Chu et al., 

June 27, 2020). 

Ueki et al. (June 25, 2020) evaluated 

the effectiveness of cotton face 

coverings, facemasks, and N95s (a 

commonly used respirator) in 

preventing transmission of SARS–CoV– 

2 using a laboratory experimental 

setting with manikins. The researchers 

found that all offerings provided some 

measure of protection as source control, 

limiting droplets expelled from both 

infected and uninfected wearers. For 

instance, when spaced roughly 20 

inches apart, an uninfected person can 

reduce inhalation of infectious virus by 

37% by wearing a cotton face covering. 

If only the infected person wears a 

cotton face covering, the amount 

breathed in by the uninfected recipient 

is reduced by 57%. However, if both 

individuals wear a cotton face covering, 

the exposure is reduced 67%. If both are 

wearing facemasks, exposure is reduced 

by 76%. When an infected individual 

wore an N95 respirator, exposure was 

reduced by 96% or, when the seams 

were taped, 99.7%. 

As demonstrated by the studies above, 

proper face covering usage leads to a 

substantial reduction in the emission of 

virus-containing droplets and 

consequent transmission of the virus. 

This is especially critical for 

asymptomatic or pre-symptomatic 

infected wearers who feel well and may 

not be taking other preventative 

measures—like self-isolation—because 

they are unaware of their infectiousness 

to others. Combined, these individuals 

are estimated to account for more than 

50% of COVID–19 transmissions 

(Honein et al., December 11, 2020; 

Moghadas et al., July 6, 2020; Johansson 

et al., January 7, 2021). This figure could 

be substantially reduced if face 

coverings are required, even for 

individuals who do not feel sick. Face 

covering use is also especially important 

in indoor spaces (Honein et al., 

December 11, 2020). The studies 

reviewed above show that face 

coverings reduce the release of droplets 

but do not completely eliminate them. 

CDC guidance affirms that COVID–19 

pandemic control requires face covering 

use (Honein et al., December 11, 2020; 

CDC, May 7, 2021). Similarly, the WHO 

advises face covering use as a critical 

measure of a comprehensive package of 

prevention and control measures to 

limit the spread of COVID–19 (WHO, 

December 1, 2020). 

Although increasing COVID–19 

vaccination coverage remains the most 

effective means to achieve control of the 

pandemic, additional layered 

prevention strategies will be needed in 

the short term to minimize preventable 

morbidity and mortality among 

unvaccinated individuals. Unvaccinated 

individuals remain at substantial risk 

for infection, severe illness, and death, 

especially in areas where the level of 

SARS–CoV–2 community transmission 

is high (discussed in detail in Grave 

Danger (Section III.A. of this preamble)). 

Among strategies to prevent COVID–19, 

CDC recommends all unvaccinated 

individuals wear face coverings in 

public indoor settings. A proven 

effective strategy against SARS–CoV–2 

transmission, beyond vaccination, 

includes using face coverings 

consistently and correctly (Christie et 

al., July 30, 2021). 

The agency is not requiring the use of 

face coverings by workers who are fully 

vaccinated because vaccination is 

sufficient to reduce the grave danger to 


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themselves or others. While vaccination 

is sufficient to reduce grave danger to 

the workers themselves, the agency 

recognizes that there may still be 

residual risk (e.g., breakthrough 

infections); severe health outcomes 

among vaccinated workers, however, are 

unlikely. Vaccination is also sufficient 

to reduce the grave danger that fully 

vaccinated workers present to others 

given the reduced likelihood of 

transmission (see Grave Danger in 

Section III.A. of this preamble). 

Nonetheless, the use of face coverings 

by fully vaccinated workers, while not 

required by this ETS, is strongly 

encouraged in a wide range of 

circumstances to reduce the overall risk 

of transmitting COVID–19, particularly 

in areas of substantial or high 

transmission, when indoors and when 

in crowded outdoor areas. The use of 

face coverings by customers and visitors 

to workplaces is also beneficial in 

reducing the overall risk of workplace 

transmission of COVID–19. 

OSHA has always considered 

recognized consensus standards, with 

design and construction specifications, 

when determining the PPE requirements 

of the agency’s standards. The OSH Act 

(29 U.S.C. 655(b)(8)) requires the agency 

to generally give deference to consensus 

standards unless setting its own 

specifications would better effectuate 

the purposes of the Act. The agency’s 

standards generally require PPE to 

conform to the specifications in 

consensus standards through 

incorporation by reference (e.g., eye and 

face protection, head protection, foot 

protection). ASTM released a 

specification standard on February 15, 

2021, to establish a national standard 

baseline for barrier face coverings 

(ASTM F3502–21). OSHA considered, 

as required, incorporation of ASTM 

F3502–21 in this ETS. However, the 

agency has determined that it is 

infeasible for the timeframe of this ETS 

to incorporate this consensus standard 

or to otherwise establish additional 

criteria for face coverings beyond that 

already recommended by the CDC due 

to the time needed to manufacture and 

distribute any new product. OSHA 

notes the CDC’s guidance on types of 

masks, including those that meet ASTM 

F3502–21 requirements, and respirators 

as helpful to employers and workers in 

selecting an appropriate product (CDC, 

September 23, 2021). 

Relatedly, OSHA has previously 

established that medical facemasks are 

essential PPE for workers in healthcare 

and associated industries, and are 

already used by workers under both the 

general PPE standard (29 CFR 

1910.132), and more specifically, the 

Bloodborne Pathogens standard (29 CFR 

1910.1030). Facemasks are intended for 

a medical purpose, such as prevention 

of infectious disease transmission 

(including uses related to COVID–19). 

Facemasks can function as a barrier to 

protect the wearer from hazards such as 

splashes or large droplets of blood and 

bodily fluids. Facemasks, such as 

surgical masks, must be FDA-cleared or 

authorized by FDA, including under an 

EUA and provide a similar or greater 

level of protection when serving the 

purposes of a face covering. Respirators 

are another type of personal protective 

device that OSHA has regulated under 

the Respiratory Protection standard (29 

CFR 1910.134). 

The best available experimental and 

epidemiological data support consistent 

use of face coverings by unvaccinated 

workers in work settings to reduce the 

spread of COVID–19 through droplet 

transmission. As discussed in Need for 

the ETS (Section III.B. of this preamble), 

adopting face covering policies is 

necessary, as part of a strategy combined 

with testing, to protect employees from 

exposure to COVID–19. Requiring 

unvaccinated workers to wear face 

coverings in the workplace will reduce 

the likelihood that, in conjunction with 

the testing (paragraph (g)) and removal, 

of infected workers, (paragraph (h)) 

requirements, they will spread the virus 

to others, including other unvaccinated 

coworkers. Based on the proven 

effectiveness of face covering use, 

OSHA’s COVID–19 ETS includes 

necessary provisions for required use of 

face coverings by unvaccinated workers 

and provisions to allow vaccinated 

workers and customers and visitors to 

wear face coverings or respirators as a 

component of reducing the overall risk 

of COVID–19 transmission in the 

workplace. 

The benefits that result from the use 

of face coverings for preventing 

transmission of COVID–19 are derived 

from the combination of source control 

(i.e., reducing the spread of large 

respiratory droplets to others by 

covering an infected person’s mouth 

and nose) and some personal protection 

for the wearer, as was discussed above 

in the Need for Face Coverings section. 

Face coverings are a vital layer of 

protection, and the benefit to any given 

individual increases with increasing 

community use. Paragraph (i) contains 

requirements for the use of face 

coverings by each employee who is not 

fully vaccinated, as well as alternatives 

to face coverings (e.g., facemasks, 

respirators) that may be acceptable in 

some situations (described in detail 

below). As defined in paragraph (c), a 

face covering means a covering that 

completely covers the nose and mouth 

of the wearer, excluding face shields, 

which is made with two or more layers 

of a breathable fabric that is tightly 

woven, is secured to the wearer’s head 

with ties, ear loops, or elastic bands that 

go behind the head, and is a solid piece 

of material without slits, exhalation 

valves, visible holes, or other openings 

in the material. This definition 

encompasses face coverings that 

otherwise meet the definition of face 

covering under paragraph (c), but 

include clear plastic windows, such as 

those utilized by persons 

communicating with those who are deaf 

or hard-of-hearing or when seeing a 

person’s mouth is otherwise important. 

Face coverings can be manufactured or 

homemade, and they can incorporate a 

variety of designs, structures, and 

materials. Face coverings can be 

disposable or reusable. Face coverings 

do not have to meet a consensus 

standard, although they might. Apart 

from any applicable FDA or NIOSH 

regulatory requirements that might 

otherwise apply, such requirements are 

not required solely for the purposes of 

meeting the requirements of this 

standard. 

As a general rule, OSHA has authority 

to, and does, require employers to bear 

the costs for protective equipment, 

among other worker protections, 

required by an OSHA standard. See, 

e.g., 29 CFR 1910.1018(j) (requiring the 

employer to provide protective clothing 

at no cost to the employee). However, in 

limited circumstances, OSHA has 

chosen not to require employers to pay 

for some forms of non-specialized 

protective equipment, such as every-day 

clothing, products providing weatherrelated protection, and non-specialized 

equipment that the employee wears off 

the job site. See 29 CFR 1910.132(h)(2)– 

(5). Like the analogous situations listed 

above, here employees may use their 

personal face coverings in a variety of 

circumstances on and off the job site as 

part of their every-day protection. 

Because the types of face coverings 

permitted under this ETS are widely 

used and readily available, (see 

Technological Feasibility (Section IV.A. 

of this preamble)), employees will have 

no difficulty obtaining them. OSHA is 

requiring employers to bear the costs for 

employee vaccination, because it is the 

more protective control, (Need for the 

ETS (Section III.B. of this preamble). 

OSHA does not believe it appropriate to 

impose the costs of personal face 

coverings on an employer where an 

employee has made an individual 

choice to pursue a less protective 

option. For these reasons, OSHA has 


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determined not to impose the costs of 

face coverings on the employer as a 

requirement under this ETS. 

Paragraph (i)(1) requires employers to 

ensure that each employee who is not 

fully vaccinated wears a face covering 

when indoors or when occupying a 

vehicle with another person for work 

purposes, except (i) when an employee 

is alone in a room with floor to ceilings 

windows and a closed door. However, if 

that employee exits the room or another 

individual enters the room, they are 

required to wear a face covering. The 

second exception is (ii) for a limited 

time while an employee is eating or 

drinking at the workplace or for 

identification purposes in compliance 

with safety and security requirements. 

Under this exception, employees are not 

required to wear face coverings during 

the limited time while eating or 

drinking at the workplace. Employers 

may also let employees eat or drink 

outside where there may be more space 

and reduced risk of transmission. 

Additionally, under the exception in 

paragraph (i)(1)(ii), employees are not 

required to wear a face covering for a 

limited time for identification purposes 

in compliance with safety and security 

requirements. This means that an 

unvaccinated employee can temporarily 

remove their face covering when at a 

security checkpoint within their 

worksite and when identification is 

otherwise required. 

Another exception for required face 

coverings is under paragraph (i)(1)(iii) 

for when an employee is wearing a 

respirator or facemask in accordance 

with other OSHA standards (e.g., 

1910.134, 1910.504, 1910.1030, 

1910.502). Facemask or respirator use in 

accordance with other OSHA standards 

takes precedence over face covering use 

in this ETS. For example, OSHA 

standard 1910.1030 has requirements 

for facemasks in healthcare settings and 

requires that workers should continue to 

use the required facemask appropriate 

for that setting. Another example may 

include a worker who is required to use 

a respirator under 1910.134 for 

workplace exposure to harmful dusts, 

where effective engineering controls are 

not feasible; that worker should 

continue to use the required respirator. 

Employees must resume wearing a face 

covering when not engaged in the 

activity where a facemask or respirator 

is required as an essential part of their 

job. The last exception, contained in 

paragraph (i)(1)(iv), is for a very limited 

set of circumstances where employers 

can show that the use of the face 

covering is infeasible or creates a greater 

hazard. Situations where it is important 

to see an employee’s mouth for reasons 

related to their job duties, or their job 

requires the use of their uncovered 

mouth, or when the use of a face 

covering presents a risk of serious injury 

or death to the employee, would also be 

covered under this provision. As has 

been previously discussed in Summary 

and Explanation for paragraph (d) 

(Section VI.D. of this preamble), OSHA 

recognizes that there may be certain 

workers who may not be able to wear a 

face covering due to a disability or 

sincerely held religious belief and are 

entitled to an accommodation. 

If employers receive accommodation 

requests relating to face coverings or 

other protective gear, for example due to 

disability or religious garb or grooming, 

they should evaluate those requests 

under applicable laws (EEOC, October 

25, 2021). 

Paragraph (i)(2) requires that 

employers ensure that any face covering 

required to be worn by this section is: 

(i) Worn by the employee to fully cover 

the employee’s nose and mouth; and (ii) 

replaced when wet, soiled, or damaged 

(e.g., is ripped, has holes, or has broken 

ear loops). To be worn properly, face 

coverings must completely cover the 

wearer’s mouth and nose and must fit 

snugly against the sides of the face 

without gaps. Gaps can let air with 

respiratory droplets leak in and out 

around the edges of the mask. Face 

coverings with a nose wire help to avoid 

issues with glasses fogging and create a 

snug fit. Workers can also use a mask 

fitter or brace over a disposable mask or 

a cloth mask to prevent air from leaking 

around the edges of the mask. To ensure 

face coverings are worn properly, an 

employer might appoint a manager or 

senior employee to check that each 

unvaccinated employee is properly 

wearing a face covering at the start of 

and throughout each shift. Many aspects 

of proper mask use are easily observable 

(e.g., covering the mouth and nose, as 

well as no observable gaps). 

Additionally, employers may consider 

utilizing workplace announcements 

(email messages, safety talks, etc.) or 

displaying signs or posters throughout 

the facility about proper face covering 

usage. 

The employer must ensure that 

employees replace face coverings when 

wet, soiled, or damaged (paragraph 

(i)(2)(ii)). Face coverings can become 

soiled by splashes, sprays, or splatters, 

from contact with a contaminated 

surface, or by touching/adjusting them 

with contaminated hands. Damaged face 

coverings may not fit properly and thus 

will have reduced effectiveness. 

Employees who work where there is 

potential for spills, sprays, or splashes 

may need to change or replace their face 

coverings more frequently (e.g., in food, 

meat, or poultry processing plants; 

water, sanitation, or wastewater 

treatment facilities; or restaurants). As 

note 1 to paragraph (i) addresses, face 

shields may be worn in addition to face 

coverings to prevent them from getting 

wet and soiled. For work where face 

coverings are expected to become dirty 

or soiled less frequently, employees may 

only need to replace their face coverings 

daily (e.g., in retail or office buildings). 

Regardless of work location, reusable 

face coverings can become soiled after 

each use and may be contaminated with 

bacteria and viruses, including the virus 

that causes COVID–19. To ensure 

performance and minimize the risk of 

contaminating employees after contact 

with a soiled face covering, as described 

previously, the CDC recommends 

washing them whenever they get dirty, 

but at least once a day. The CDC also 

has guidance on the selection, proper 

wearing, cleaning, and storage of face 

coverings (CDC, August 13, 2021). 

The employer must not prevent any 

employee, regardless of vaccination 

status, from voluntarily wearing a face 

covering or facemask unless the 

employer can demonstrate that doing so 

would create a hazard (paragraph (i)(3)). 

While vaccination greatly reduces the 

risk of the most severe consequences of 

COVID–19 (e.g. hospitalizations and 

fatalities) to workers, it does not reduce 

the risk to zero and thus workers must 

be permitted to wear face coverings or 

facemasks even when not required to in 

order to allow the workers to further 

address residual risk. The agency has 

determined this provision is necessary 

because employees may themselves 

have additional medical risk factors that 

employers may or may not be aware of, 

and which require enhanced 

precautions. Similarly, employees may 

live with or have frequent contact with 

family members or others who have 

enhanced risk if infected with COVID– 

19 and thus justify assuring the 

employees’ ability to take reasonable 

precautions to protect their own health 

and safety or that of loved ones. 

Paragraph (i)(4) states that the 

employer must permit the employee to 

wear a respirator instead of a face 

covering whether required or not (i.e., 

without regard to vaccination status), 

and the employer may provide 

respirators to the employee, even if not 

required. This means that when a face 

covering is not required by paragraph 

(i)(1), the employer must permit the 

employee to wear a respirator or the 

employer may even provide a respirator; 

in such circumstances, the employer 

must also comply with 1910.504 (the 

mini respiratory protection program). 


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Respirators, as defined in paragraph (c), 

are a type of PPE that are certified by 

NIOSH or authorized under an 

Emergency Use Authorization (EUA) by 

the FDA, and protect against airborne 

hazards by removing specific air 

contaminants from the ambient 

(surrounding) air or by supplying 

breathable air from a safe source. 

Respirator use can provide an additional 

level of comfort and protection beyond 

that provided by face coverings for 

employees in circumstances that do not 

require a respirator to be used. As 

discussed previously, the agency has 

determined that workers need the 

ability to wear PPE, even when it is not 

required, in order to address residual 

risk and due to health conditions that 

either they or their close contacts may 

have that warrant enhanced 

precautions. For a more in-depth 

description of the mini respiratory 

protection program, see the preamble to 

the Healthcare ETS (86 FR 32615– 

32617). OSHA intends the mini 

respirator protection program to be 

preserved for the duration of this ETS, 

and any references relied upon by 

OSHA in those sections of the 

Healthcare ETS are also incorporated 

explicitly into the rulemaking docket for 

this ETS. 

The mini respiratory protection 

program is designed to strengthen 

employee protections with a small set of 

provisions for the safe use of respirators 

designed to be easier and faster to 

implement than the more 

comprehensive respiratory protection 

program under 29 CFR 1910.134. This 

ETS is addressing an emergency health 

crisis, so it is critical for employers to 

be able to get more employee protection 

in place quickly. OSHA expects that this 

approach will facilitate additional 

employee choice for the additional 

protection provided by respirators while 

reducing disincentives that may have 

discouraged employers from allowing or 

voluntarily providing respirators. A 

mini respirator program is therefore an 

important control to protect employees 

from the hazard posed by COVID–19. 

The mini respiratory protection 

program is primarily intended to be 

used for addressing circumstances 

where employees are not exposed to 

suspected or confirmed sources of 

COVID–19, but where respirator use 

could offer enhanced protection to 

employees. Examples include when a 

respirator could offer enhanced 

protection in circumstances where a less 

protective (in terms of filtering and fit) 

face covering is required under the ETS 

(See 29 CFR 1910.501(i)(1)). The 

decision to use a respirator in place of 

a face covering could be due to the 

higher filter efficiency and better sealing 

characteristics of respirators when 

compared to face coverings. For 

additional discussion, the rationale for 

the mini respiratory protection program 

was addressed in detail in Need for 

Specific Provisions in the agency’s prior 

rulemaking on 1910.504, and the 

requirements of the mini respiratory 

protection program section are 

discussed in Summary and Explanation 

in the agency’s prior rulemaking on 

1910.504. 

As required by paragraph (i)(5), the 

employers must not prohibit customers 

or visitors from wearing face coverings. 

Face coverings are a vital layer of 

protection against the risk of COVID–19. 

(See the discussion earlier in this 

section on the benefits to individuals 

associated with increased community 

use.) This provision is necessary 

because increased use of face coverings 

also reduces the overall risk of COVID– 

19 transmission from the customers and 

visitors to workers, both unvaccinated 

and vaccinated alike. Additionally, it 

allows customers and visitors to protect 

their own health and safety. Employers 

may even want to create a policy 

encouraging the use of face coverings by 

anyone who enters the business; they 

are encouraged to coordinate with state 

and local health officials to obtain and 

respond appropriately to timely and 

accurate information (e.g., level of 

community transmission, health system 

capacity, vaccination coverage, capacity 

for early detection of increases in 

COVID–19 cases, and populations at 

risk for severe outcomes from COVID– 

19). Local conditions will influence the 

decisions that public health officials 

make regarding community-level 

strategies. Additionally, workers and 

their representatives may also negotiate 

additional face covering measures not 

required by the ETS through collective 

bargaining agreements or other 

collectively negotiated agreements. 

Lastly, for the reasons explained 

above, note 2 to paragraph (i) clarifies 

that this section does not require the 

employer to pay for any costs associated 

with face coverings. However, the note 

also makes clear that this section does 

not prohibit the employer from paying 

for costs associated with face coverings 

required by this section. OSHA notes 

that employer payment for face 

coverings may be required by other 

laws, regulations, or collective 

bargaining agreements or other 

collectively negotiated agreements. 

Additionally, workers and their 

representatives may also negotiate 

employer payment for face coverings 

not required by the ETS through 

collective bargaining agreements or 

other collectively negotiated 

agreements. 

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J. Information Provided to Employees 

In order to successfully implement 

the provisions of the ETS, it is critical 

that employers provide relevant 

information to employees. Employers 

must provide employees with the 

information specified in paragraph (j), 

an essential part of this ETS, because it 

helps to ensure that employees 

understand both their rights and 

responsibilities under the ETS and their 

employer’s policies and procedures. The 

ETS cannot be effective if employees do 

not have sufficient knowledge and 

understanding of the requirements of 

the ETS, their employers’ policies and 

procedures, information about available 

COVID–19 vaccines, their protections 

against retaliation and discrimination, 

and the potential penalties for 

knowingly providing false information 

to their employer. 

Paragraph (j) provides that employers 

must provide the required information 

to each employee in a language and at 

a literacy level the employee 

understands. This means that if an 

employer has employees that speak 

different languages or are at different 

literacy levels, the employer must 

present information in a way that 

ensures each employee can understand 

it. This may require an employer to 

create different materials for different 

groups of employees (e.g., materials in 

different languages). When information 

must be translated into different 

languages, employers must ensure the 

translation is one the employees can 


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understand. When an employer 

provides employees with the required 

information in a manner employees 

understand, they help ensure that their 

implementation of this ETS is 

successful. 

The manner in which employers 

provide the required information to 

employees may vary based on the size 

and type of workplace. Employers have 

flexibility to communicate this 

information to employees using any 

effective methods that are typically used 

in their workplaces, and may choose 

any method of informing employees so 

long as each employee receives the 

information specified in the standard in 

a language and at a literacy level they 

understand. For example, an employer 

may provide this information to 

employees through email 

communications, printed fact sheets, or 

during a discussion at a regularly 

scheduled team meeting. To ensure 

comprehension of the information 

provided, employers can identify a 

point-of-contact for employees who 

have questions about the information 

provided. 

Paragraphs (j)(1)–(4) specify the 

information that employers must 

provide to employees. Paragraph (j)(1) 

requires employers to provide each 

employee with information regarding 

the requirements of § 1910.501 and any 

policies and procedures the employer 

establishes to implement this ETS. The 

information provided to employees 

must cover any employer policies under 

paragraph (d), including the details of 

the employer’s vaccination policy. 

Employers must also inform employees 

about the process that will be used to 

determine employee vaccination status, 

as required under paragraph (e). In 

addition, employers must inform 

employees about the time and pay/leave 

they are entitled to for vaccinations and 

any side effects experienced following 

vaccinations, as required by paragraph 

(f). And employers must also inform 

employees about the procedures they 

need to follow to provide notice of a 

positive COVID–19 test or diagnosis of 

COVID–19 by a licensed healthcare 

provider, as required under paragraph 

(h), as well as the procedures to be used 

for requesting records under paragraph 

(l). Employers must provide additional 

information to unvaccinated employees, 

including information about the 

employer’s policies and procedures for 

COVID–19 testing and face coverings, as 

required by paragraphs (g) and (i), 

respectively. 

Some employers may have informed 

employees about their COVID-related 

workplace-specific policies, e.g., 

policies on vaccination, testing, and face 

coverings, prior to the effective date of 

this ETS. Employers may rely on any 

such prior communications for purposes 

of complying with paragraph (j)(1) to the 

extent that the prior communications 

meet the relevant requirements of 

paragraph (j) and there have been no 

changes to the relevant policies. 

Employers must review and evaluate the 

information already provided to 

determine whether it covers all of the 

information necessary under paragraph 

(j)(1). If previous information provided 

to employees did not cover all of the 

required elements, the employer must 

provide employees the information on 

those missing elements to come into 

compliance with the ETS. For example, 

if an employer has a mandatory 

vaccination policy and has already 

provided information to the employees 

on the policies and procedures the 

employer has established to implement 

that policy, and provided that 

information in a language and at a 

literacy level each employee can 

understand, the employer would not 

need to expend resources to provide 

that information again to meet the 

requirements under this ETS. However, 

the employer would still need to 

provide information to its employees 

about other new policies and 

procedures established to implement 

the ETS. 

When an employer’s policies or 

procedures change, the employer must 

provide any updated or supplemental 

information to employees. For example, 

an employer may initially opt to allow 

only paper copies as proof of COVID–19 

test results. Over time, however, the 

employer may decide that it wants to 

accept electronic proof of test results. If 

that employer modifies its policy to 

permit employees to submit electronic 

proof of test results, the employer must 

inform employees of any new or altered 

policies and procedures that the 

employer implements as a result. 

Paragraph (j)(2) requires employers to 

provide information to each employee 

about COVID–19 vaccine efficacy, 

safety, and the benefits of being 

vaccinated. To meet this requirement, 

employers must provide the CDC’s 

document, ‘‘Key Things to Know About 

COVID–19 Vaccines,’’ available at 

https://www.cdc.gov/coronavirus/2019- 

ncov/vaccines/keythingstoknow.html 

(CDC, October 7, 2021), to each 

employee. The employer may choose to 

provide this information to employees 

in either an electronic or print format. 

The CDC currently provides this 

document in multiple languages; 

however, employers may need to 

provide additional translations if 

necessary to inform each employee of 

the contents of the document in a 

language they understand. Employers 

do not have any further obligations to 

create or provide information on 

vaccine efficacy, safety, or the benefits 

of being vaccinated beyond providing 

the aforementioned CDC document to 

each employee. 

Paragraph (j)(3) requires employers to 

inform each employee about the 

requirements of 29 CFR 

1904.35(b)(1)(iv) and section 11(c) of the 

OSH Act. These two provisions work 

together to protect employees from 

retaliation for engaging in activities 

protected by OSHA statute or 

regulation. The first of these provisions, 

section 1904.35(b)(1)(iv), prohibits 

employers from discharging or in any 

manner discriminating against any 

employee for reporting a work-related 

injury or illness. The second provision, 

section 11(c) of the OSH Act, prohibits 

employers from discriminating against 

employees for exercising rights under, 

or as a result of actions required by, the 

ETS. Section 11(c) also protects 

employees from retaliation for filing an 

occupational safety or health complaint, 

reporting a work-related injury or 

illness, or otherwise exercising any 

rights afforded by the OSH Act. 

Retaliation takes many forms; it 

occurs when an employer (through a 

manager, supervisor, or administrator) 

fires an employee or takes any other 

type of adverse employment action 

against an employee for engaging in a 

protected activity. Adverse employment 

actions include discipline, reducing pay 

or hours, reassignment to a less 

desirable position, denying overtime or 

promotion, intimidation or harassment, 

and any other action that would 

dissuade a reasonable employee from 

raising a concern about a possible 

violation or engaging in other protected 

activity (see Burlington Northern & 

Santa Fe Railway Co. v. White, 548 U.S. 

53, 57 (2006) holding, in the Title VII 

context, that the test for determining 

whether a particular employment action 

is materially adverse is whether it 

‘‘could well dissuade’’ a reasonable 

person from engaging in protected 

activity). 

The ETS does not change employers’ 

substantive obligations under either 29 

CFR 1904.35(b)(1)(iv) or section 11(c) of 

the OSH Act. Rather, it simply requires 

employers to make employees aware of 

these provisions and their requirements. 

By increasing awareness, OSHA 

believes that paragraph (j)(3) will 

prevent acts of retaliation from 

occurring in the workplace, encourage 

employees to exercise their right to the 

protections of the ETS, and engage 


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employees in actions required by the 

ETS. 

It is critically important for employees 

to be aware of, and to be able to 

exercise, their rights under the ETS. 

Employee participation is essential to 

mitigating the spread of COVID–19 in 

the workplace, and fear of retaliation 

would undermine the effectiveness of 

the ETS. For example, per paragraph (f) 

of this ETS, employers must provide 

employees up to 4 hours of paid time at 

the employee’s regular rate of pay for 

each vaccination dose, as well as 

reasonable time and paid sick leave for 

employees to recover from side effects 

experienced following any vaccination 

dose. If an employer fails to comply 

with paragraph (f) and then retaliates 

against employees who object, 

employees may be deterred from being 

vaccinated. Similarly, if employees fear 

retaliation, they will be less likely to 

voice concerns about unvaccinated coworkers who do not wear required face 

coverings (see paragraph (i)(1)). A 

workplace free from the threat of 

retaliation promotes collaboration 

between employers and employees and 

allows employers to more effectively 

implement the various requirements of 

this ETS. 

OSHA has received a record number 

of complaints of retaliation during the 

COVID–19 pandemic. The agency’s 

website shows that, as of September 26, 

2021, OSHA had received 5,788 

complaints of retaliation related to 

workplace protections from COVID–19 

(OSHA, September 29, 2021). These 

figures indicate that some employers 

need to be reminded that they are 

legally prohibited from engaging in 

retaliatory actions. Additionally, 

employees likely need reassurance of 

their legal right to engage in protected 

activity without fear of suffering from 

adverse employment actions. As such, it 

is critical for employers to inform 

employees of the prohibitions against 

retaliation in 29 CFR 1904.35(b)(1)(iv) 

and section 11(c) after the effective date 

of the ETS, without regard to any 

information they may have provided 

previously on these anti-retaliation 

provisions. As with the other parts of 

paragraph (j), employers have flexibility 

regarding how they will provide the 

required information. 

Paragraph (j)(4) requires employers to 

provide each employee with 

information regarding the prohibitions 

of 18 U.S.C. 1001 and Section 17(g) of 

the OSH Act, which provide for 

criminal penalties associated with 

knowingly supplying false statements or 

documentation. The first of these two 

provisions, 18 U.S.C. 1001(a) is 

described earlier in this preamble and 

provides for fines or imprisonment for 

persons who ‘‘knowingly and willfully’’ 

(1) falsifies, conceals, or covers up by 

any trick, scheme, or device a material 

fact; (2) makes any materially false, 

fictitious, or fraudulent statement or 

representation; or (3) makes or uses any 

false writing or document knowing the 

same to contain any materially false, 

fictitious, or fraudulent statement or 

entry. And section 17(g) of the OSH Act 

provides for fines up to $10,000, and 

imprisonment for not more than six 

months, or both, for anyone who 

‘‘knowingly makes any false statement, 

representation, or certification’’ in any 

application, record, report, plan, or 

other document ‘‘filed or required to be 

maintained pursuant to this chapter.’’ 

False statements or documents made or 

submitted for purposes of complying 

with policies required by this ETS could 

fall under either or both of these 

statutory provisions. 

This ETS requires that each employee 

provide their employer either COVID– 

19 vaccination documentation 

(paragraph (e)), or, if applicable, regular 

COVID–19 test results (paragraph (g)). 

There is a significant public health 

interest in ensuring employees provide 

this information truthfully to the 

employer. Employers cannot effectively 

implement the requirements of this ETS 

based on false information. By 

increasing awareness of the possible 

penalties an employee may face for 

misrepresenting their vaccination status 

or test results, OSHA intends to 

discourage such behavior. Employers 

can satisfy the requirement of paragraph 

(j)(4) by providing each employee with 

the text of the two statutory provisions 

in hard copy or via electronic 

communication (e.g., email), translated 

as necessary into other languages, 

emphasizing the importance of 

providing truthful information about 

vaccine status and test results, and 

explaining that providing false 

information could be punishable under 

the two provisions. Employers are not 

required to provide further explanation 

of the statutory provisions or to provide 

legal advice. 

Information requirements are routine 

components of OSHA standards. The 

inclusion of information requirements 

in this ETS reflects the agency’s 

conviction, as noted above, that 

informed employees are essential to the 

implementation of any effective 

occupational safety and health policy or 

procedure. OSHA believes that 

informing employees about their rights 

and responsibilities under the ETS; the 

employer’s policies and procedures; and 

the safety, efficacy, and benefits of 

vaccination will help increase the 

number of employees vaccinated and 

will facilitate effective implementation 

of the standard by employers. 

References 

Centers for Disease Control and Prevention 

(CDC). (2021, October 7). Key Things to 

Know About COVID–19 Vaccines. 

https://www.cdc.gov/coronavirus/2019- 

ncov/vaccines/keythingstoknow.html. 

(CDC, October 7, 2021). 

Occupational Safety and Health 

Administration (OSHA). (2021, 

September 29). COVID–19 Response 

Summary: Summary Data for Federal 

Programs—Whistleblower Data. https://

www.whistleblowers.gov/covid-19-data. 

(OSHA, September 29, 2021). 

K. Reporting COVID–19 Fatalities and 

Hospitalizations to OSHA 

OSHA has required employers to 

report work-related fatalities and certain 

work-related hospitalizations under its 

recordkeeping regulation since 1971. 

These requirements have been an 

important part of the agency’s statutory 

mission to assure safe and healthful 

working conditions for all working 

people. All employers covered by the 

OSH Act, including employers who are 

partially exempt from maintaining 

injury and illness records, are required 

to comply with OSHA reporting 

requirements at 29 CFR 1904.39. Under 

OSHA’s current reporting regulation, 

employers are required to report each 

work-related fatality to OSHA within 8 

hours of the event, and each workrelated in-patient hospitalization, 

amputation, and loss of an eye within 

24 hours of the event. 

The purpose of the reporting 

requirement in § 1904.39 is to provide 

OSHA with information to determine 

whether it is necessary for the agency to 

conduct an immediate investigation at a 

specific establishment. Employer 

reports of work-related COVID–19 

fatalities and in-patient hospitalizations 

are an important element of the agency’s 

efforts to reduce occupational exposure 

to the virus. After receiving an employer 

report, OSHA decides whether an 

inspection is needed to determine the 

cause of a work-related COVID–19 

fatality or in-patient hospitalization, and 

whether any OSHA standards may have 

been violated. These reports are critical 

for the agency to respond quickly to 

COVID–19 exposure that may pose an 

ongoing risk to other employees at the 

worksite. Timely investigation also 

allows OSHA to view evidence at a 

workplace soon after a work-related 

COVID–19 fatality or in-patient 

hospitalization has occurred, and can 

make it easier for the agency to gather 

relevant information from others at the 

worksite that might be useful in 


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protecting other employees. Moreover, 

prompt inspection enables OSHA to 

gather information to evaluate whether 

its current standards adequately address 

the workplace hazard presented from 

COVID–19. The information gathered 

from employer reports is also used by 

the agency to form the basis of statistical 

data on the causes and remediation of 

work-related COVID–19 fatalities and 

in-patient hospitalizations. 

In order to address the unique 

circumstances presented by COVID–19, 

and to facilitate OSHA investigation and 

better workplace health surveillance, 

paragraph (k)(1) requires covered 

employers to report each work-related 

COVID–19 fatality to OSHA within 8 

hours of the employer learning about 

the fatality, and each work-related 

COVID–19 in-patient hospitalization to 

OSHA within 24 hours of the employer 

learning about the in-patient 

hospitalization. As described in more 

detail in the following discussion, 

OSHA is adding these additional 

COVID–19 reporting requirements 

because the delay in the manifestation 

and progression of symptoms of 

COVID–19 can lead to hospitalization or 

fatality outside the normal window for 

reporting those workplace events. 

Paragraph (k)(1)(i) provides that 

employers must report each workrelated COVID–19 fatality to OSHA 

within 8 hours of the employer learning 

about the fatality. Under this paragraph, 

an employer must make a report to 

OSHA within 8 hours of learning both 

(1) that an employee has died from a 

confirmed case of COVID–19, and (2) 

that the cause of death was the result of 

a work-related exposure to COVID–19. 

Employers are only required to report 

confirmed cases of COVID–19 as 

defined by the Centers for Disease 

Control and Prevention (CDC) (CDC, 

May 20, 2020). Typically, the cause of 

death is determined by the physician 

who was responsible for a patient who 

died in a hospital, although the cause of 

death can also be determined by others 

such as medical examiners or coroners 

(Pappas, May 19, 2020). 

The requirement in paragraph (k)(1)(i) 

is similar to the fatality reporting 

requirement in OSHA’s regulation at 29 

CFR 1904.39(a)(1), which requires an 

employer to report to OSHA within 8 

hours after the death of any employee as 

the result of a work-related incident. 

However, 29 CFR 1904.39(b)(6) requires 

employers to report a work-related 

fatality to OSHA only if the fatality 

occurs within 30 days of ‘‘the workrelated incident.’’ Prior to this ETS, for 

purposes of reporting events involving 

COVID–19, OSHA interpreted the 

phrase ‘‘the work-related incident’’ to 

mean ‘‘exposure’’ in the work 

environment. Therefore, in order to be 

reportable under 29 CFR 1904.39(a)(1), 

a work-related fatality due to COVID–19 

needed to have occurred within 30 days 

of an employee’s exposure in the work 

environment. Given the possibility of 

long-term illness before death, the 30- 

day limitation for reporting fatalities to 

OSHA could restrict OSHA’s ability to 

receive information about work-related 

COVID–19 fatalities. 

To address these issues, OSHA has 

chosen not to apply the 30-day 

limitation period from 29 CFR 

1904.39(b)(6) to the reporting provision 

in paragraph (k) (see paragraph (k)(2)). 

Therefore, the requirement to report 

these fatalities is not limited by the 

length of time between workplace 

exposure and death. The reporting of 

work-related COVID–19 fatalities that 

occur beyond 30 days from the time of 

exposure will enable the agency to 

evaluate more work-related COVID–19 

fatalities to determine whether 

immediate investigations are needed to 

prevent other employees at the same 

worksite from being exposed to the 

virus. The report of these fatalities to 

OSHA facilitates the agency’s timely 

tracking of this data. Accordingly, 

paragraph (k)(1)(i) requires employers to 

report each work-related COVID–19 

fatality to OSHA within 8 hours of the 

employer learning about the fatality 

regardless of when the exposure in the 

work environment occurred. 

Paragraph (k)(1)(ii) of the standard 

requires an employer to report each 

work-related COVID–19 in-patient 

hospitalization to OSHA within 24 

hours of the employer learning about 

the in-patient hospitalization. Under 

this paragraph, and similar to OSHA’s 

reporting regulation at 29 CFR 1904.39, 

an employer must make a report to 

OSHA within 24 hours of learning that 

(1) an employee has been in-patient 

hospitalized due to a confirmed case of 

COVID–19, and (2) the reason for the 

hospitalization was the result of a workrelated exposure to the illness. 

OSHA’s current reporting regulation 

at 29 CFR 1904.39(a)(2) provides that, 

within 24 hours after the in-patient 

hospitalization of one or more 

employees, as the result of a workrelated incident, an employer must 

report the in-patient hospitalization to 

OSHA. 29 CFR 1904.39(b)(6) requires 

employers to only report in-patient 

hospitalizations to OSHA if the 

hospitalization occurs within 24 hours 

of the work-related incident. For 

example, if an employee trips in the 

workplace and sustains an injury on 

Monday, but is not hospitalized until 

Thursday, the employer does not need 

to report the event. In this example, ‘‘the 

work-related incident’’ occurred on 

Monday when the employee tripped 

and was injured in the workplace. Also, 

under § 1904.39, employers must report 

in-patient hospitalizations to OSHA 

within 24 hours of knowing both that 

the employee has been in-patient 

hospitalized and that the reason for the 

hospitalization was the result of ‘‘the 

work-related incident’’ (see 29 CFR 

1904.39(a)(2), (b)(7)–(b)(8)). In nonCOVID cases, the work-relatedness of 

the injury is typically apparent 

immediately. 

Since the beginning of the pandemic, 

the reporting of work-related COVID–19 

in-patient hospitalizations under 29 

CFR 1904.39 has presented unique 

challenges. As noted above, for 

purposes of reporting COVID–19 

fatalities and in-patient hospitalizations, 

OSHA has interpreted the phrase ‘‘the 

work-related incident’’ in 29 CFR 

1904.39(b)(6) to mean an employee’s 

‘‘exposure’’ to COVID–19 in the work 

environment. Thus, in order to be 

reportable, an in-patient hospitalization 

needed to occur within 24 hours of an 

employee’s exposure to COVID–19 in 

the work environment. Given the 

incubation period of the virus, and the 

typical timeframe between exposure and 

the emergence of symptoms serious 

enough to require hospitalization, it is 

extremely unlikely for an in-patient 

hospitalization to occur within 24 hours 

of an employee’s exposure to the virus. 

To address these issues, paragraph 

(k)(1)(ii) does not limit the COVID–19 

reporting requirement to only those 

hospitalizations that occur within 24 

hours of exposure, as in 29 CFR 

1904.39(b)(6). This change in the 

reporting requirement will result in 

OSHA making more determinations as 

to whether immediate investigations are 

needed at additional worksites. Given 

the severity of the disease, and how 

quickly it can spread, it is essential that 

remediation efforts at a workplace be 

undertaken immediately. As noted 

above, it is critical for OSHA to respond 

quickly to hazardous conditions where 

employees have been hospitalized. The 

elimination of the 24-hour limitation 

period will not only allow OSHA to 

receive more employer reports about 

work-related COVID–19 in-patient 

hospitalizations and, as a result, shed 

light on where severe COVID–19 events 

are occurring, but it will also enable the 

agency to respond more quickly and 

effectively to these situations. 

Accordingly, employers must report 

each work-related COVID–19 in-patient 

hospitalization to OSHA regardless of 

when the employee’s exposure in the 

workplace occurred (paragraph 


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(k)(1)(ii)). But consistent with OSHA’s 

normal reporting requirements, when 

hospitalization for a work-related case 

of COVID–19 does occur, the employer 

must report it within 24 hours of 

learning about the hospitalization. 

Additionally, for purposes of this 

section, OSHA defines in-patient 

hospitalization as a formal admission to 

the in-patient services of a hospital or 

clinic for care or treatment (see 29 CFR 

1904.39(b)(9) and (b)(10)). The 

determination as to whether an 

employee is formally admitted into the 

in-patient service is made by the 

hospital or clinic. Treatment in an 

Emergency Room only is not reportable. 

I. Work-Relatedness Determinations 

Given the nature of the disease, and 

the extent of community spread, in 

some cases, it may be difficult for an 

employer to determine whether an 

employee’s COVID–19 illness is workrelated, especially when an employee 

has experienced potential exposure both 

in and out of the workplace. For 

purposes of this ETS, when evaluating 

whether a fatality or in-patient 

hospitalization is the result of a workrelated case of COVID–19, employers 

must follow the criteria in OSHA’s 

recordkeeping regulation at 29 CFR 

1904.5 for determining workrelatedness. Applying the criteria in 29 

CFR 1904.5 under paragraph (k) of this 

ETS is consistent with how employers 

make work-relatedness determinations 

when reporting fatalities and other 

serious events under 29 CFR 1904.39. 

Under § 1904.5, employers must 

consider an injury or illness to be workrelated if an event or exposure in the 

work environment either caused or 

contributed to the resulting condition, 

or significantly aggravated a pre-existing 

injury or illness. An injury or illness is 

presumed work-related if it results from 

events or exposures occurring in the 

work environment, unless an exception 

in § 1904.5(b)(2) specifically applies. 

Under this language, an injury or illness 

is presumed work-related if an event or 

exposure in the work environment is a 

discernable cause of the injury or illness 

(see 66 FR 66,943 (December 27, 2001)). 

According to 29 CFR 1904.5(b)(3), the 

‘‘work environment’’ includes the 

employer’s establishment and any other 

location where work is performed or 

where employees are present as a 

condition of their employment. Under 

29 CFR 1904.5(b)(3), employers should 

evaluate the employee’s work duties 

and environment and determine 

whether it is more likely than not that 

exposure at work caused or contributed 

to the illness (see 66 FR 5958–59 

(January 19, 2001)). 

Because of the typical incubation 

period of 3 to 14 days, an employee’s 

exposure to COVID–19 will usually be 

determined after the fact. Employers 

must make reasonable efforts to acquire 

the necessary information to make goodfaith work-relatedness determinations 

under this section. In addition, the 

employer should rely on information 

that is reasonably available at the time 

of the fatality or in-patient 

hospitalization. 

A work-related exposure in the work 

environment would likely include close 

contact with a person known to be 

infected with COVID–19. For example, 

although work-relatedness must be 

determined on a case-by-case basis, if a 

number of COVID–19 illnesses develop 

among coworkers who work closely 

together without an alternative 

explanation, it is reasonable to conclude 

that an employee’s fatality or in-patient 

hospitalization is work-related. On the 

other hand, if there is not a known 

exposure to COVID–19 that would 

trigger the presumption of workrelatedness, the employer must evaluate 

the employee’s work duties and 

environment to determine whether it is 

more likely than not that the employee 

was exposed to COVID–19 during the 

course of their employment. Employers 

should consider factors such as: 

• The type, extent, and duration of 

contact the employee had at the work 

environment with other people, 

particularly the general public. 

• Physical distancing and other 

controls that impact the likelihood of 

work-related exposure. 

• The extent and duration of time 

spent in a shared indoor space with 

limited ventilation. 

• Whether the employee had workrelated contact with anyone who 

exhibited signs and symptoms of 

COVID–19. 

Since 1971, under OSHA’s 

recordkeeping system, employers have 

been making work-relatedness 

determinations regarding workplace 

fatalities, injuries, and illnesses. In 

general, employers are in the best 

position to obtain information, both 

from the employee and the workplace, 

necessary to make a work-relatedness 

determination. Although employers may 

rely on experts and healthcare 

professionals for guidance, the 

determination of work-relatedness 

ultimately rests with the employer. 

Finally, OSHA wishes to emphasize 

that, under OSHA’s recordkeeping 

regulation at 29 CFR 1904, employers 

must record on the OSHA 300 log each 

work-related fatality, injury, and illness 

reported to OSHA under § 1904.39. The 

work-relatedness determination for 

fatality and in-patient hospitalization is 

no different than the requirement to 

determine work-relatedness when 

entering fatalities, injuries and illness 

on the OSH 300 log. Accordingly, the 

work-relatedness determination for 

reporting COVID–19 fatalities and inpatient hospitalizations is a 

determination that is already required to 

be made by the employer. 

II. Time Periods for Reporting COVID– 

19 Fatalities and In-Patient 

Hospitalizations 

As noted above, under paragraph (k), 

employers must report each workrelated COVID–19 fatality or 

hospitalization to OSHA within the 

specified timeframes based on when any 

agent or employee of the employer 

becomes aware of the reportable event. 

For example, an employer ‘‘learns’’ of a 

COVID–19 fatality or in-patient 

hospitalization when a supervisor, 

receptionist, or other employee at the 

company receives information from a 

family member or medical professional 

about an employee fatality or in-patient 

hospitalization. It is the employer’s 

responsibility to ensure that appropriate 

instructions and procedures are in place 

so that managers, supervisors, medical 

personnel, as well as other employees or 

agents of the company, who learn of an 

employee’s death or in-patient 

hospitalization due to COVID–19 know 

that the company must make a report to 

OSHA. 

Consistent with OSHA’s regulation at 

29 CFR 1904.39, the reporting clock 

begins to run with the occurrence of the 

reportable event. Under paragraph (k), 

in situations where the employer or the 

employer’s agent does not learn about 

the work-related COVID–19 fatality or 

in-patient hospitalization right away, 

the employer must make the report to 

OSHA within 8 hours for a fatality, or 

24 hours for an in-patient 

hospitalization, from the time the 

employer (or the employer’s agent) 

learns about the reportable event. For 

example, if an employee dies from a 

work-related case of COVID–19 on 

Sunday at 6:00 a.m., but the employer 

does not learn about the death until 

Monday at 8:00 a.m., the employer has 

until 4:00 p.m. that day to make the 

report to OSHA. Similarly, if an 

employee is in-patient hospitalized for a 

work-related case of COVID–19 at 8:30 

p.m. on Monday, but the employer or 

the employer’s agent(s) does not learn 

about the hospitalization until 9:00 a.m. 

the next day (Tuesday), then the 

employer would be required to make the 

report to OSHA within 24 hours of 

learning of the in-patient hospitalization 


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(i.e., by 9:00 a.m. on Wednesday) (see 29 

CFR 1904.39(b)(7)). 

Likewise, if an employer does not 

learn right away that a reportable 

fatality or in-patient hospitalization is 

work-related, the employer must make 

the report to OSHA within 8 hours or 

24 hours of learning that the death or inpatient hospitalization was the result of 

a work-related COVID–19 exposure. For 

example, if an employee is in-patient 

hospitalized for a case of COVID–19 at 

9:00 a.m. on Monday, but the employer 

does not have enough information to 

make a work-relatedness determination 

until 11:00 a.m. on Monday, then the 

employer would be required to report 

the hospitalization within 24 hours of 

learning that the hospitalization was 

work-related (i.e., by 11:00 a.m. on 

Tuesday) (see 29 CFR 1904.39(b)(8)). 

Finally, if an employer makes a report 

to OSHA concerning a work-related 

COVID–19 in-patient hospitalization 

and that employee subsequently dies 

from the illness, the employer does not 

need to make an additional fatality 

report to OSHA. 

III. How To Report COVID–19 Fatalities 

and In-Patient Hospitalizations and 

What Information Must Be Included in 

the Report 

Paragraph (k)(2) of the standard 

provides that when reporting workrelated COVID–19 fatalities and inpatient hospitalizations to OSHA in 

accordance with paragraph (k)(1), the 

employer must follow the requirements 

in 29 CFR 1904.39, except for 29 CFR 

parts 1904.39(a)(1)–(2) and (b)(6). As 

explained above, OSHA has included 

specific provisions for the reporting of 

work-related COVID–19 fatalities and 

in-patient hospitalizations that differ 

from 29 CFR 1904.39. However, when 

making COVID–19 fatality and inpatient hospitalization reports to OSHA, 

employers must follow the other 

reporting procedures set forth in 

§ 1904.39. Specifically, under 

§ 1904.39(a)(3), employers have three 

options for reporting work-related 

fatalities and in-patient hospitalizations 

to OSHA: 

1. By telephone to the OSHA Area 

Office that is nearest to the site of the 

incident; 

2. by telephone to the OSHA toll-free 

central telephone number, 1–800–321– 

OSHA (1–800–321–6742); 

3. by electronic submission using the 

reporting application located on 

OSHA’s public website at 

www.osha.gov. 

Section 1904.39(a)(3) also allows 

employers to report work-related 

fatalities and in-patient hospitalizations 

to OSHA in person to the OSHA Area 

Office that is nearest to the site of the 

incident. However, because many 

OSHA Area Offices are closed to the 

public during the COVID–19 pandemic, 

employers must use one of the three 

options listed above. In addition, 

§ 1904.39(b)(1) makes clear that, if the 

OSHA Area Office is closed, an 

employer may not report a work-related 

fatality or in-patient hospitalization by 

leaving a message on OSHA’s answering 

machine, faxing the Area Office, or 

sending an email. Instead, the employer 

must make the report by using the 800 

number or the reporting application 

located on OSHA’s public website at 

www.osha.gov. 

The other provisions in 29 CFR 

1904.39 (except for 29 CFR 

1904.39(a)(1)–(2) and (b)(6)) also apply 

to the reports required by paragraph (k). 

For example, employers should consult 

29 CFR 1904.39(b)(2) to determine what 

information employers must give to 

OSHA when making COVID–19 fatality 

or in-patient hospitalization reports. Per 

that provision, employers must give 

OSHA the following information for 

each fatality or in-patient 

hospitalization: The establishment 

name, the location of the work-related 

incident, the time of the work-related 

incident, the type of reportable event 

(i.e., fatality or in-patient 

hospitalization), the number of 

employees who suffered a fatality or inpatient hospitalization, the names of the 

employees who suffered a fatality or inpatient hospitalization, the employer’s 

contact person and his or her phone 

number, and a brief description of the 

work-related incident. 

References 

Centers for Disease Control and Prevention. 

(2020, May 20). Reporting and Coding 

Deaths Due to COVID–19. https://

www.cdc.gov/nchs/covid19/coding-andreporting.htm. (CDC, May 20, 2020). 

Pappas, S. (2020, May 19). How COVID–19 

Deaths are Counted. Scientific American. 

https://www.scientificamerican.com/ 

article/how-covid-19-deaths-arecounted1/. (Pappas, May 19, 2020). 

L. Availability of Records 

Section 8(c)(1) of the Act requires 

employers to ‘‘make, keep and preserve, 

and make available to the Secretary [of 

Labor] or the Secretary of Health and 

Human Services, such records regarding 

his activities relating to this Act as the 

Secretary, in cooperation with the 

Secretary of Health and Human 

Services, may prescribe by regulation as 

necessary or appropriate for the 

enforcement of this Act or for 

developing information regarding the 

causes and prevention of occupational 

accidents and illnesses.’’ Section 8(c)(2) 

of the Act specifically directs the 

Secretary of Labor to promulgate 

regulations requiring employers to 

maintain accurate records of workrelated injuries and illnesses. Section 

8(c)(3) of the Act requires employers to 

‘‘maintain accurate records of employee 

exposures to potentially toxic materials 

or harmful physical agents which are 

required to be monitored or measured 

under section 6 [of the Act.]’’ In 

accordance with section 8(c), paragraph 

(l) of the ETS includes availability of 

records requirements for certain 

COVID–19-related records required to 

be created and maintained by the ETS. 

This paragraph provides a right of 

access to records by employees, 

employee representatives, and OSHA. 

Paragraph (l)(1) specifies that the 

employer must make available, for 

examination and copying, the 

individual COVID–19 vaccine 

documentation and any COVID–19 test 

results required by the ETS for a 

particular employee to that employee 

and to anyone having written 

authorized consent of that employee by 

the end of the next business day after a 

request. Prompt employee access to this 

information ensures that employees 

have the information necessary to take 

an active role in their employers’ efforts 

to prevent COVID–19 transmission in 

the workplace. In particular, in 

circumstances where employers or 

employees choose to have the 

employee’s COVID–19 test results go 

directly to the employer, paragraph 

(l)(1) gives the employee access to their 

own records. Access to COVID–19 test 

results may be helpful for a requesting 

employee in evaluating information 

relevant to COVID–19 exposure, 

including if that exposure occurred at 

the workplace. Prompt production of 

these records can also assist employees 

in making personal medical decisions 

and seeking care from a licensed 

healthcare provider if necessary. 

Employers should note that employee 

privacy is protected under the access to 

records provisions in paragraph (l)(1). 

Specifically, as noted above, paragraph 

(l)(1) requires employers to provide 

access to the vaccination records or 

COVID–19 test results for a particular 

employee to that employee or to anyone 

having that employee’s written 

permission. However, it does not 

authorize employers to allow anyone 

other than the particular employee to 

access their records or results without 

the written consent of that employee 

(except as provided for under paragraph 

(l)(3)). 

Paragraph (l)(2) requires the employer 

to make the following information 

available to an employee or an 


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employee representative on request: (1) 

The aggregate number of fully 

vaccinated employees at a workplace 

and (2) the total number of employees 

at that workplace. This information 

must be made available to these 

individuals by the end of the next 

business day after a request. Employers 

will be able to utilize the roster of each 

employee’s vaccination status they are 

required to maintain under paragraph 

(e)(4) of this section to provide this 

information promptly to a requester. 

Since the aggregate totals of fully 

vaccinated employees and total 

employees made available by request in 

paragraph (l)(2) do not contain any 

personal identifiable information or 

personal medical information, OSHA 

does not believe that access to these 

records raises any serious 

confidentiality or privacy concern if 

disclosed to employees or their 

representatives. 

OSHA believes that access to this 

information will allow employees and 

employee representatives to calculate a 

percentage of fully vaccinated 

employees at a workplace, evaluate the 

efficacy of the employer’s vaccination 

policy, raise any concerns identified to 

OSHA, and actively participate in the 

employer’s vaccination efforts. Without 

the provision of this information to 

employees and their representatives, the 

only potential check on whether the 

employer is complying with the 

requirements of the ETS would be 

OSHA inspections. The agency believes 

that making this information available 

to employee representatives will help 

ensure compliance with the 

requirements of the ETS and thereby 

protect workers. 

Consistent with 29 CFR 1904.35(a)(3), 

OSHA interprets the term ‘‘employee’’ 

as used in paragraph (l) to include 

former employees. In addition, for 

purposes of paragraph (l)(2), the term 

‘‘representative’’ is intended to have the 

same meanings as in 29 CFR 

1904.35(b)(2), which encompasses two 

types of employee representatives. The 

first is a personal representative of the 

employee, who is a person the employee 

designates, in writing, as his or her 

personal representative, or is a legal 

representative of a deceased or legally 

incapacitated employee. The second is 

an authorized representative, which is 

defined as an authorized collective 

bargaining agent of one or more 

employees working at the employer’s 

worksite. In accordance with these 

interpretations, OSHA also interprets 

the phrase ‘‘employee representative,’’ 

as used in paragraph (l)(2), to include 

the personal and authorized 

representatives of former employees. 

These interpretations are limited to 

these provisions. 

Under paragraphs (l)(1) and (l)(2), 

requesters are entitled to one free copy 

of each requested record, which is 

consistent with OSHA’s recordkeeping 

regulation at 29 CFR 1904.35. The cost 

of providing one free copy to 

employees, former employees, and/or 

their representatives is minimal, and 

these individuals are more likely to 

access the records if it is without cost. 

Allowing the employer to charge for a 

copy of the record would only delay the 

production of the information. After 

receiving an initial, free copy of a 

requested record or document, an 

employee, former employee, or 

representative may be charged a 

reasonable fee for copying duplicative 

records. However, no fee may be 

charged for an update to a previously 

requested record. It should be noted that 

each COVID–19 test is a separate record, 

and, as such, the employee or the 

representative is entitled to one free 

copy of each COVID–19 test record. 

Paragraph (l)(3) provides OSHA with 

a specific right of access. Under 

paragraph (l)(3)(i), employers must 

provide the written policy required by 

paragraph (d), and the aggregate 

numbers described in paragraph (l)(2) of 

this section (both the aggregate number 

of fully vaccinated employees at a 

workplace and the total number of 

employees at that workplace), to the 

Assistant Secretary for examination and 

copying within 4 business hours of a 

request. Consistent with the 

requirements in 29 CFR 1904.40(b)(2), if 

the records are maintained at a location 

in a different time zone, the employer 

may use the business hours of the 

establishment at which the records are 

located when calculating the deadline. 

Providing OSHA with prompt access 

to the written policy and the aggregate 

numbers allows the agency to more 

rapidly focus inspections on employers 

that may not be in compliance with the 

requirements of this ETS. In addition, 

this information will help OSHA 

determine what to focus on in an 

investigation. For example, if an 

employer has established, implemented, 

and is enforcing a written mandatory 

vaccination policy under paragraph 

(d)(1) and their aggregate numbers 

indicate that their entire workforce is 

fully vaccinated against COVID–19, the 

agency might approach the investigation 

differently than in a workplace where 

the employer’s written policy (under 

paragraph (d)(2)) allows employees to 

provide proof of regular testing for 

COVID–19 in accordance with 

paragraph (g) and wear a face covering 

in accordance with paragraph (i), 

instead of being fully vaccinated. This 

information also provides OSHA 

representatives with the ability to 

quickly check any vaccination claims 

made by an employer without 

undertaking an employee-by-employee 

assessment and assists OSHA 

representatives in their evaluation of the 

effectiveness of the employer’s written 

policy. 

Having this information within 4 

business hours of the request helps the 

agency act more quickly to protect 

employees and preserves agency 

resources. In addition, the 4-hour 

response time is consistent with similar 

obligations under other OSHA 

recordkeeping requirements, such as the 

recordkeeping requirement in 29 CFR 

1904.40(a). 

Paragraph (l)(3)(ii) requires employers 

to provide all other records and other 

documents that are required to be 

maintained by this section to the 

Assistant Secretary for examination and 

copying by the end of the next business 

day after a request. This means that 

employers must allow OSHA 

representatives to examine and copy 

each employee’s COVID–19 vaccine 

documentation (required to be 

maintained under paragraph (e)(4)), the 

roster of employee vaccination status 

(required to be maintained under 

paragraph (e)(4)), and each employee’s 

COVID–19 test results (required to be 

maintained under paragraph (g)(4)), 

upon request. 

As indicated in paragraph (c), the 

term Assistant Secretary includes the 

Assistant Secretary’s designees. 

Consequently, the records and 

information required to be provided to 

the Assistant Secretary under paragraph 

(l)(3) must be given to the Assistant 

Secretary or their representatives, such 

as OSHA’s Compliance Safety and 

Health Officers. 

As noted above, section 8 of the OSH 

Act recognizes OSHA’s right of access to 

records relating to employer compliance 

with occupational safety and health 

standards and regulations, including 

access to relevant employee medical 

records. OSHA does not believe that its 

inspectors need to obtain employee 

permission to access and review 

personally identifiable information. 

Gaining this permission would 

essentially make it impossible to obtain 

full access to the records in a timely 

manner, which is needed by OSHA to 

perform a meaningful workplace 

investigation. OSHA also has policies 

and procedures in place to ensure the 

privacy and confidentiality of employee 

records it accesses during inspections. 

Finally, without complete and timely 

access to the vaccine and testing 


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records, agency efforts to conduct 

immediate interventions to ensure 

employees are protected from COVID– 

19 at a specific workplace would be 

limited. 

OSHA does not prescribe specific 

methods for requests for records in this 

ETS. Employees, employee 

representatives, and the Assistant 

Secretary and designees can submit 

requests in any manner that provides 

adequate notice of the request to the 

employer. This may include requests by 

in writing (e.g., email, fax, letter), by 

phone, or in person. 

M. Dates 

To minimize transmission of COVID– 

19 in the workplace, it is essential that 

employers ensure that the provisions of 

this ETS are implemented as quickly as 

possible, but no later than the dates 

outlined in paragraph (m). This 

paragraph sets forth the effective date of 

the section and the compliance dates for 

specific requirements of the standard. 

The effective date for this ETS, as 

required by section 6(c)(1) of the OSH 

Act (29 U.S.C. 655(c)(1)), is the date of 

publication in the Federal Register. The 

compliance date for all provisions in the 

ETS is 30 days after the effective date, 

except for paragraph (g) (COVID–19 

testing for employees who are not fully 

vaccinated), which requires compliance 

within 60 days of the effective date. 

Given the grave danger to employees 

from occupational exposure to COVID– 

19, as previously described, the effective 

date and compliance dates provided for 

this ETS are reasonable and appropriate. 

For over a year and a half—since at 

least January 2020, when the Secretary 

of Health and Human Services declared 

COVID–19 to be a public health 

emergency for the entire United States— 

all employers have been made acutely 

aware of the importance of minimizing 

employees’ exposure to COVID–19 and 

many have willingly joined the global 

response to stop the spread of COVID– 

19 and to protect their employees. 

Therefore, many employers have 

already been encouraging their 

employees to get vaccinated against 

COVID–19. Many employers have also 

instituted vaccination mandates (see 

Technological Feasibility, Section IV.A. 

of this preamble, for more information). 

OSHA has published this ETS 

because there is great urgency in 

instituting the workplace protections 

OSHA has found to be necessary as 

quickly as possible. Unvaccinated 

workers are being hospitalized with 

COVID–19 every day, and many are 

dying, so it is particularly critical to 

remove obstacles as soon as possible for 

those who wish to be vaccinated. At the 

same time, OSHA has set the 

compliance dates to allow enough time 

for employers to obtain and read the 

standard, become knowledgeable about 

the standard’s requirements, and 

undertake the necessary steps for 

compliance. 

OSHA anticipates that employers will 

be able to implement measures to 

comply with most provisions of the ETS 

well within 30 days, pursuant to 

paragraph (m)(2)(i). Even in situations 

where an employer has not previously 

taken the required actions to address 

COVID–19 hazards in the workplace, 

steps such as developing a vaccination 

policy, determining employee 

vaccination status, providing support 

for employee vaccination, ensuring 

employees who are not fully vaccinated 

wear face coverings, and most other 

measures required under the standard 

can readily be completed within the 30- 

day time period. These measures do not 

require extensive lead times for large 

employers to implement. The scope of 

the standard is limited to employers 

with more than 100 employees largely 

because OSHA is especially confident 

that these employers will have the 

ability to implement the standard. 

Paragraph (m)(2)(ii) of the ETS 

provides a longer period of time—60 

days—for employers to comply with the 

requirements for COVID–19 testing in 

paragraph (g). Paragraph (g) requires 

employers to implement COVID–19 

testing and reporting of results for 

employees who are not fully vaccinated. 

One reason for this extended period of 

time for testing is that employers may 

need additional time to develop policies 

and procedures regarding COVID–19 

testing and associated recordkeeping. 

Perhaps more critically, this ETS is 

intended to incentivize vaccination, so 

this delayed compliance date was 

established to allow sufficient time for 

employees to complete a COVID–19 

primary vaccination before it is 

necessary to comply with the testing 

requirements in paragraph (g). The 60- 

day compliance period in paragraph 

(m)(2)(ii) provides employees with 

sufficient time to receive one dose of a 

single-dose primary vaccination (e.g., 

Janssen (Johnson & Johnson)) or both 

doses of a two-dose primary vaccination 

series (e.g., Pfizer-BioNTech, Moderna). 

For the Janssen COVID–19 vaccine, the 

primary vaccination takes 1 day to 

complete (CDC, August 10, 2021). 

Employees who receive the Janssen 

vaccine could therefore begin their 

primary vaccination at any time up to 

and including the 60th day from the 

date of publication in the Federal 

Register in order to be exempt from the 

testing requirements of paragraph (g). 

For the Pfizer-BioNTech COVID–19 

vaccine, the primary vaccination series 

takes 21 days to complete (CDC, August 

25, 2021). Employees receiving the 

Pfizer-BioNTech series could begin their 

primary vaccination series up to 39 days 

from the date of publication in the 

Federal Register. Finally, for the 

Moderna COVID–19 vaccine, the 

primary vaccination series takes 28 days 

to complete (CDC, August 23, 2021). 

Employees receiving the Moderna series 

could therefore begin their primary 

vaccination series up to 32 days from 

the date of publication in the Federal 

Register. 

As specified in paragraph (m)(2)(ii), if 

an employee completes the entire 

primary vaccination within 60 days 

following publication in the Federal 

Register, that employee does not have to 

be tested under paragraph (g), even if 

they have not yet completed the two 

week waiting period that is required to 

meet the definition of fully vaccinated 

in paragraph (c). Employers must begin 

compliance with the testing 

requirements of paragraph (g) only for 

employees who have not yet completed 

primary vaccination (i.e., employees 

who have not received any doses, 

employees who have received only one 

dose of a two-dose series) within 60 

days from the date of publication in the 

Federal Register. And because 

employers must have their vaccination 

support processes (as required by 

paragraph (f)) in place before employees 

would need to initiate their primary 

vaccination in time to avoid testing 

under this section, employees will be 

able to avoid all testing costs required 

by this ETS. 

Compliance with the requirements of 

the ETS within the specified dates is 

achievable. Many employers are likely 

already in compliance with at least 

some of the provisions of the ETS. 

Resources are also readily available to 

help employers achieve compliance. 

These resources include guidance 

issued by OSHA, the CDC, state and 

local governments, trade associations, 

and other organizations to help 

employers successfully implement 

vaccination, testing, and face covering 

requirements to minimize the 

transmission of COVID–19 in the 

workplace. OSHA therefore concludes 

that the compliance dates in this ETS 

strike a reasonable balance between 

incentivizing vaccination and allowing 

enough time for employers to comply. 

Although employers are not required 

to comply with the requirements of this 

ETS until 30 days from the date of 

publication in the Federal Register (60 

days for paragraph (g)), OSHA strongly 

encourages employers to implement the 


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required measures to support employee 

vaccination as soon as practicable. 

Providing support for employees to 

receive the COVID–19 vaccine and 

recover from side effects, as required in 

paragraph (f) of the ETS, prior to the 

compliance date may encourage 

employees to receive a COVID–19 

vaccination at the earliest possible date. 

This would not only reduce the grave 

danger of COVID–19 in the workplace 

but also reduce burdens on both 

employers and employees when the 

compliance dates for the additional 

requirements for employees who are not 

fully vaccinated arrive. 

References 

Centers for Disease Control and Prevention 

(CDC). (2021, August 10). Janssen 

COVID–19 Vaccine (Johnson & Johnson). 

https://www.cdc.gov/vaccines/covid-19/ 

info-by-product/moderna/index.html. 

(CDC, August 10, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, August 23). Moderna 

COVID–19 Vaccine. https://

www.cdc.gov/vaccines/covid-19/info-byproduct/moderna/index.html. (CDC, 

August 23, 2021) 

Centers for Disease Control and Prevention 

(CDC). (2021, August 25). PfizerBioNTech COVID–19 Vaccine. https://

www.cdc.gov/vaccines/covid-19/info-byproduct/pfizer/index.html. (CDC, August 

25, 2021) 

N. Severability 

OSHA’s amendment to its COVID–19 

ETS, Part 1910, Subpart U, includes a 

republication of § 1910.505, 

Severability. Section 1910.505 contains 

a severability clause, the primary 

purpose of which is to express OSHA’s 

intent that if any section or provision of 

the COVID–19 ETS is held invalid or 

unenforceable or is stayed or enjoined 

by any court of competent jurisdiction, 

the remaining sections or provisions 

should remain effective and operative. 

OSHA is including 29 CFR 1910.505 as 

part of this ETS for the same reasons the 

agency included the provision in the 

Healthcare ETS, and OSHA intends for 

it to have the same purposes and effects 

as those expressed in the preamble to 

the Healthcare ETS (86 FR 32617– 

32618), which is hereby included in the 

record for this ETS. 

Because subpart U is the result of two 

separate ETSs published at different 

times and subject to different time 

frames, but OSHA intends for both ETSs 

to be subject to the same principles of 

severability, OSHA has relied on the 

same centralized severability section for 

both for efficiency. For the benefit of the 

reader and for administrative 

convenience, this centralized 

severability section is located in the 

same subpart as the other provisions of 

the ETS. While either ETS remains in 

effect, it is OSHA’s intent that 29 CFR 

1910.505 remain in subpart U and 

operative as to either ETS still in effect. 

If both ETSs are not made permanent, 

29 CFR 1910.505 will cease to have 

effect along with the rest of subpart U. 

If either ETS is made permanent, OSHA 

will provide notice at that time of the 

agency’s intended application of 29 CFR 

1910.505 to the newly permanent 

standard. For example, if 29 CFR 

1910.502 becomes permanent because it 

has been finalized, but 29 CFR 1910.501 

remains a temporary requirement 

because it is not yet finalized, 29 CFR 

1910.505 would remain in subpart U 

and operative as to 29 CFR 1910.501 

and the agency would separately 

provide notice of how severability is 

intended to apply to the newly 

permanent 29 CFR 1910.502. 

O. Incorporation by Reference 

OSHA’s amendment to its COVID–19 

ETS, Part 1910, Subpart U, includes the 

addition of § 1910.501, Vaccination, 

Testing, and Face Coverings. This 

section incorporates by reference CDC’s 

‘‘Isolation Guidance.’’ 

This document, listed below, will be 

fixed in time and made publicly 

available. OSHA had previously 

incorporated this same document into 

29 CFR 1910.502 and listed it in subpart 

U’s incorporation by reference (IBR) 

section, 29 CFR 1910.509. Because 

subpart U is the result of two separate 

ETSs published at different times and 

subject to different time frames, but both 

incorporate documents by reference, 

OSHA has relied on the same 

centralized IBR section for both. For the 

benefit of the reader and for 

administrative convenience, this 

centralized IBR section is located in the 

same subpart as the other provisions of 

the ETS. 

While either ETS remains in effect, it 

is OSHA’s intent that 29 CFR 1910.509 

remain in subpart U. If both ETSs are 

not made permanent, 29 CFR 1910.509 

will cease to have effect along with the 

rest of subpart U. If either ETS is made 

permanent, OSHA intends to recodify 

the relevant standards for that ETS from 

29 CFR 1910.509 into 29 CFR 1910.6, 

the centralized IBR section for part 

1910. For example, if 29 CFR 1910.502 

becomes permanent because it has been 

finalized, but 29 CFR 1910.501 remains 

a temporary requirement because it is 

not yet finalized, OSHA would relocate 

all of 29 CFR 1910.502’s incorporated 

documents into 29 CFR 1910.6, but 29 

CFR 1910.509 would remain in subpart 

U and would list the one document 

incorporated by reference into 29 CFR 

1910.501. 

In this section, OSHA includes a list 

of the titles, editions/versions, and years 

of the incorporated documents. 

Stakeholders may consult 29 CFR 

1910.509 both to locate all of the 

documents incorporated by reference in 

subpart U (the paragraph in which the 

document is incorporated is listed there) 

and to find more details regarding how 

to locate the specific consensus 

standard and guidelines that have been 

incorporated by reference in the ETS. 

OSHA recognizes that the Centers for 

Disease Control and Prevention (CDC) 

may update their guidelines based on 

the most current available scientific 

evidence, but OSHA is only requiring 

compliance with CDC’s ‘‘Isolation 

Guidance’’ as incorporated by reference, 

which is fixed in time as of February 18, 

2021. 

As discussed in the preamble of the 

Healthcare ETS at 86 FR 32619, CDC’s 

guidance, including its ‘‘Isolation 

Guidance,’’ is not expressed in 

mandatory terms. As such, OSHA has 

determined it is not sufficiently 

protective or a meaningful alternative to 

a mandatory standard. OSHA has 

reviewed this guidance and determined 

that compliance with the safety 

measures and specific instructions in 

CDC’s ‘‘Isolation Guidance’’ is 

important to protect workers who work 

for employees with over 100 employees. 

For the same reasons as described in the 

Healthcare ETS (86 FR 32619), OSHA is 

incorporating this guidance by 

reference, and compliance with the 

recommendations will be mandatory. 

OSHA will be able to cite employers 

who do not follow them. Compliance 

with all applicable provisions of the 

incorporated document is required 

where the provisions into which they 

are incorporated are mandatory, 

whether the incorporated document sets 

out its directions in mandatory language 

or recommendations. OSHA recognizes 

that this document incorporated by 

reference into the ETS may become 

outdated when newer versions are 

published or other entities revise those 

documents. In that case, OSHA will 

work quickly to update the ETS through 

a new rulemaking or issue enforcement 

guidance, as appropriate. But OSHA 

also has a longstanding de minimis 

enforcement policy to allow employers 

to rely on documents that are at least as 

protective. 

OSHA is incorporating by reference 

(in 29 CFR 1910.509) the material 

below. A brief description of the 

guidance is provided in the text below. 

A description of its use can be found in 

the Regulatory Text, and Summary and 

Explanation (Section VI. of this 


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preamble), where the guidance is 

referenced. 

Regulatory Text—§§ 1910.501(h); 

1910.502(l) 

CDC’s Isolation Guidance (2021): This 

guidance provides steps to take when 

someone is experiencing COVID–19 

symptoms and/or tested positive for 

COVID–19. This document is available 

at www.osha.gov/coronavirus/ets/ibr. 

The CDC document is available at no 

cost through the contact information 

listed above. In addition, in accordance 

with § 1910.509(a)(1), this guidance is 

available for inspection at any Regional 

Office of the Occupational Safety and 

Health Administration (OSHA), or at the 

OSHA Docket Office, U.S. Department 

of Labor, 200 Constitution Avenue NW, 

Room N–3508, Washington, DC 20210; 

telephone: 202–693–2350 (TTY number: 

877–889–5627). Due to copyright issues, 

OSHA cannot post consensus standards 

on the OSHA website or through 

www.regulations.gov. 

List of Subjects 

29 CFR Part 1910 

COVID–19, Disease, Health, Health 

care, Health facilities, Incorporation by 

reference, Occupational safety and 

health, Public health, Quarantine, 

Reporting and recordkeeping 

requirements, Respirators, SARS–CoV– 

2, Telework, Vaccines, Viruses. 

29 CFR Parts 1915, 1917, 1918, 1926, 

and 1928 

COVID–19, Disease, Health, Health 

care, Health facilities, Occupational 

safety and health, Public health, 

Quarantine, Reporting and 

recordkeeping requirements, 

Respirators, SARS–CoV–2, Telework, 

Vaccines, Viruses. 

Authority and Signature 

James S. Frederick, Acting Assistant 

Secretary of Labor for Occupational 

Safety and Health, U.S. Department of 

Labor, authorized the preparation of this 

document pursuant to the following 

authorities: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 

1970 (29 U.S.C. 653, 655, 657); Secretary 

of Labor’s Order 8–2020 (85 FR 58393 

(Sept. 18, 2020)); 29 CFR part 1911; and 

5 U.S.C. 553. 

James S. Frederick, 

Acting Assistant Secretary of Labor for 

Occupational Safety and Health. 

For the reasons set forth in the 

preamble, chapter XVII of title 29 of the 

Code of Federal Regulations is amended 

as follows: 

PART 1910—OCCUPATIONAL SAFETY 

AND HEALTH STANDARDS 

Subpart U—COVID–19 

■ 1. Revise the heading for Subpart U to 

read as set forth above. 

■ 2. The authority citation for subpart U 

continues to read as follows: 

Authority: 29 U.S.C. 653, 655, and 657; 

Secretary of Labor’s Order No. 8–2020 (85 FR 

58393); 29 CFR part 1911; and 5 U.S.C. 553. 

■ 3. Add § 1910.501 to subpart U to read 

as follows: 

§ 1910.501 Vaccination, testing, and face 

coverings. 

(a) Purpose. This section is intended 

to establish minimum vaccination, 

vaccination verification, face covering, 

and testing requirements to address the 

grave danger of COVID–19 in the 

workplace, and to preempt inconsistent 

state and local requirements relating to 

these issues, including requirements 

that ban or limit employers’ authority to 

require vaccination, face covering, or 

testing, regardless of the number of 

employees. 

Note 1 to paragraph (a): This section 

establishes minimum requirements that 

employers must implement. Nothing in this 

section prevents employers from agreeing 

with workers and their representatives to 

additional measures not required by this 

section and this section does not supplant 

collective bargaining agreements or other 

collectively negotiated agreements in effect 

that may have negotiated terms that exceed 

the requirements herein. The National Labor 

Relations Act of 1935 (NLRA) protects the 

right of most private-sector employees to take 

collective action to improve their wages and 

working conditions. 

(b) Scope and application. (1) This 

section covers all employers with a total 

of 100 or more employees at any time 

this section is in effect. 

(2) The requirements of this section 

do not apply to: 

(i) Workplaces covered under the 

Safer Federal Workforce Task Force 

COVID–19 Workplace Safety: Guidance 

for Federal Contractors and 

Subcontractors; or 

(ii) Settings where any employee 

provides healthcare services or 

healthcare support services when 

subject to the requirements of 

§ 1910.502. 

(3) The requirements of this section 

do not apply to the employees of 

covered employers: 

(i) Who do not report to a workplace 

where other individuals such as 

coworkers or customers are present; 

(ii) While working from home; or 

(iii) Who work exclusively outdoors. 

(c) Definitions. The following 

definitions apply to this section. 

Assistant Secretary means the 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, or designee. 

COVID–19 (Coronavirus Disease 2019) 

means the disease caused by SARS– 

CoV–2 (severe acute respiratory 

syndrome coronavirus 2). For clarity 

and ease of reference, this section also 

uses the term ‘‘COVID–19’’ when 

describing exposures or potential 

exposures to SARS–CoV–2. 

COVID–19 test means a test for SARS– 

CoV–2 that is: 

(i) Cleared, approved, or authorized, 

including in an Emergency Use 

Authorization (EUA), by the FDA to 

detect current infection with the SARS– 

CoV–2 virus (e.g., a viral test); 

(ii) Administered in accordance with 

the authorized instructions; and 

(iii) Not both self-administered and 

self-read unless observed by the 

employer or an authorized telehealth 

proctor. Examples of tests that satisfy 

this requirement include tests with 

specimens that are processed by a 

laboratory (including home or on-site 

collected specimens which are 

processed either individually or as 

pooled specimens), proctored over-thecounter tests, point of care tests, and 

tests where specimen collection and 

processing is either done or observed by 

an employer. 

Face covering means a covering that: 

(i)(A) completely covers the nose and 

mouth; 

(B) Is made with two or more layers 

of a breathable fabric that is tightly 

woven (i.e., fabrics that do not let light 

pass through when held up to a light 

source); 

(C) Is secured to the head with ties, 

ear loops, or elastic bands that go 

behind the head. If gaiters are worn, 

they should have two layers of fabric or 

be folded to make two layers; 

(D) Fits snugly over the nose, mouth, 

and chin with no large gaps on the 

outside of the face; and 

(E) Is a solid piece of material without 

slits, exhalation valves, visible holes, 

punctures, or other openings. 

(ii) This definition includes clear face 

coverings or cloth face coverings with a 

clear plastic panel that, despite the noncloth material allowing light to pass 

through, otherwise meet this definition 

and which may be used to facilitate 

communication with people who are 

deaf or hard-of-hearing or others who 

need to see a speaker’s mouth or facial 

expressions to understand speech or 

sign language respectively. 

Facemask means a surgical, medical 

procedure, dental, or isolation mask that 

is FDA-cleared, authorized by an FDA 

EUA, or offered or distributed as 


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described in an FDA enforcement 

policy. Facemasks may also be referred 

to as ‘‘medical procedure masks.’’ 

Fully vaccinated means: 

(i) A person’s status 2 weeks after 

completing primary vaccination with a 

COVID–19 vaccine with, if applicable, 

at least the minimum recommended 

interval between doses in accordance 

with the approval, authorization, or 

listing that is: 

(A) Approved or authorized for 

emergency use by the FDA; 

(B) Listed for emergency use by the 

World Health Organization (WHO); or 

(C) Administered as part of a clinical 

trial at a U.S. site, if the recipient is 

documented to have primary 

vaccination with the active (not 

placebo) COVID–19 vaccine candidate, 

for which vaccine efficacy has been 

independently confirmed (e.g., by a data 

and safety monitoring board) or if the 

clinical trial participant at U.S. sites had 

received a COVID–19 vaccine that is 

neither approved nor authorized for use 

by FDA but is listed for emergency use 

by WHO; or 

(ii) A person’s status 2 weeks after 

receiving the second dose of any 

combination of two doses of a COVID– 

19 vaccine that is approved or 

authorized by the FDA, or listed as a 

two-dose series by the WHO (i.e., a 

heterologous primary series of such 

vaccines, receiving doses of different 

COVID–19 vaccines as part of one 

primary series). The second dose of the 

series must not be received earlier than 

17 days (21 days with a 4-day grace 

period) after the first dose. 

Mandatory Vaccination Policy is an 

employer policy requiring each 

employee to be fully vaccinated. To 

meet this definition, the policy must 

require: Vaccination of all employees, 

including vaccination of all new 

employees as soon as practicable, other 

than those employees: 

(i) For whom a vaccine is medically 

contraindicated; 

(ii) For whom medical necessity 

requires a delay in vaccination; or 

(iii) Who are legally entitled to a 

reasonable accommodation under 

federal civil rights laws because they 

have a disability or sincerely held 

religious beliefs, practices, or 

observances that conflict with the 

vaccination requirement. 

Respirator means a type of personal 

protective equipment (PPE) that is 

certified by the National Institute for 

Occupational Safety and Health 

(NIOSH) under 42 CFR part 84 or is 

authorized under an EUA by the FDA. 

Respirators protect against airborne 

hazards by removing specific air 

contaminants from the ambient 

(surrounding) air or by supplying 

breathable air from a safe source. 

Common types of respirators include 

filtering facepiece respirators (e.g., N95), 

elastomeric respirators, and powered air 

purifying respirators (PAPRs). Face 

coverings, facemasks, and face shields 

are not respirators. 

Workplace means a physical location 

(e.g., fixed, mobile) where the 

employer’s work or operations are 

performed. It does not include an 

employee’s residence. 

(d) Employer policy on vaccination. 

(1) The employer must establish, 

implement, and enforce a written 

mandatory vaccination policy. 

(2) The employer is exempted from 

the requirement in paragraph (d)(1) of 

this section only if the employer 

establishes, implements, and enforces a 

written policy allowing any employee 

not subject to a mandatory vaccination 

policy to choose either to be fully 

vaccinated against COVID–19 or provide 

proof of regular testing for COVID–19 in 

accordance with paragraph (g) of this 

section and wear a face covering in 

accordance with paragraph (i) of this 

section. 

Note 1 to paragraph (d): Under federal law, 

including the Americans with Disabilities 

Act (ADA) and Title VII of the Civil Rights 

Act of 1964, workers may be entitled to a 

reasonable accommodation from their 

employer, absent undue hardship. If the 

worker requesting a reasonable 

accommodation cannot be vaccinated and/or 

wear a face covering because of a disability, 

as defined by the ADA, the worker may be 

entitled to a reasonable accommodation. In 

addition, if the vaccination, and/or testing for 

COVID–19, and/or wearing a face covering 

conflicts with a worker’s sincerely held 

religious belief, practice or observance, the 

worker may be entitled to a reasonable 

accommodation. For more information about 

evaluating requests for reasonable 

accommodation for disability or sincerely 

held religious belief, employers should 

consult the Equal Employment Opportunity 

Commission’s regulations, guidance, and 

technical assistance including at: https://

www.eeoc.gov/wysk/what-you-should-knowabout-covid-19-and-ada-rehabilitation-actand-other-eeo-laws. 

(e) Determination of employee 

vaccination status. (1) The employer 

must determine the vaccination status of 

each employee. This determination 

must include whether the employee is 

fully vaccinated. 

(2) The employer must require each 

vaccinated employee to provide 

acceptable proof of vaccination status, 

including whether they are fully or 

partially vaccinated. Acceptable proof of 

vaccination status is: 

(i) The record of immunization from 

a health care provider or pharmacy; 

(ii) A copy of the COVID–19 

Vaccination Record Card; 

(iii) A copy of medical records 

documenting the vaccination; 

(iv) A copy of immunization records 

from a public health, state, or tribal 

immunization information system; or 

(v) A copy of any other official 

documentation that contains the type of 

vaccine administered, date(s) of 

administration, and the name of the 

health care professional(s) or clinic 

site(s) administering the vaccine(s); 

(vi) In instances where an employee is 

unable to produce acceptable proof of 

vaccination under paragraphs (e)(2)(i) 

through (v) of this section, a signed and 

dated statement by the employee: 

(A) Attesting to their vaccination 

status (fully vaccinated or partially 

vaccinated); 

(B) Attesting that they have lost and 

are otherwise unable to produce proof 

required by this section; and 

(C) Including the following language: 

‘‘I declare (or certify, verify, or state) 

that this statement about my vaccination 

status is true and accurate. I understand 

that knowingly providing false 

information regarding my vaccination 

status on this form may subject me to 

criminal penalties.’’ 

Note 1 to paragraph (e)(2)(vi): An 

employee who attests to their vaccination 

status should, to the best of their recollection, 

include the following information in their 

attestation: The type of vaccine administered; 

date(s) of administration; and the name of the 

health care professional(s) or clinic site(s) 

administering the vaccine(s). 

(3) Any employee who does not 

provide one of the acceptable forms of 

proof of vaccination status in paragraph 

(e)(2) of this section to the employer 

must be treated as not fully vaccinated 

for the purpose of this section. 

(4) The employer must maintain a 

record of each employee’s vaccination 

status and must preserve acceptable 

proof of vaccination for each employee 

who is fully or partially vaccinated. The 

employer must maintain a roster of each 

employee’s vaccination status. These 

records and roster are considered to be 

employee medical records and must be 

maintained as such records in 

accordance with § 1910.1020 and must 

not be disclosed except as required or 

authorized by this section or other 

federal law. These records and roster are 

not subject to the retention requirements 

of § 1910.1020(d)(1)(i) but must be 

maintained and preserved while this 

section remains in effect. 

(5) When an employer has ascertained 

employee vaccination status prior to the 

effective date of this section through 

another form of attestation or proof, and 

retained records of that ascertainment, 


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the employer is exempt from the 

requirements in paragraphs (e)(1) 

through (3) of this section only for each 

employee whose fully vaccinated status 

has been documented prior to the 

effective date of this section. For 

purposes of paragraph (e)(4) of this 

section, the employer’s records of 

ascertainment of vaccination status for 

each such person constitute acceptable 

proof of vaccination. 

(f) Employer support for employee 

vaccination. The employer must 

support COVID–19 vaccination as 

described in this paragraph. 

(1) Time for vaccination. The 

employer must: 

(i) Provide a reasonable amount of 

time to each employee for each of their 

primary vaccination dose(s); and 

(ii) Provide up to 4 hours paid time, 

including travel time, at the employee’s 

regular rate of pay for this purpose. 

(2) Time for recovery. The employer 

must provide reasonable time and paid 

sick leave to recover from side effects 

experienced following any primary 

vaccination dose to each employee for 

each dose. 

(g) COVID–19 testing for employees 

who are not fully vaccinated. (1) The 

employer must ensure that each 

employee who is not fully vaccinated 

complies with paragraph (g)(1)(i) or (ii) 

of this section: 

(i) An employee who reports at least 

once every 7 days to a workplace where 

other individuals such as coworkers or 

customers are present: 

(A) Must be tested for COVID–19 at 

least once every 7 days; and 

(B) Must provide documentation of 

the most recent COVID–19 test result to 

the employer no later than the 7th day 

following the date on which the 

employee last provided a test result. 

(ii) An employee who does not report 

during a period of 7 or more days to a 

workplace where other individuals such 

as coworkers or customers are present 

(e.g., teleworking for two weeks prior to 

reporting to a workplace with others): 

(A) Must be tested for COVID–19 

within 7 days prior to returning to the 

workplace; and 

(B) Must provide documentation of 

that test result to the employer upon 

return to the workplace. 

Note 1 to paragraph (g)(1): This section 

does not require the employer to pay for any 

costs associated with testing; however 

employer payment for testing may be 

required by other laws, regulations, or 

collective bargaining agreements or other 

collectively negotiated agreements. This 

section also does not prohibit the employer 

from paying for costs associated with testing 

required by paragraph (g)(1) of this section. 

(2) If an employee does not provide 

documentation of a COVID–19 test 

result as required by paragraph (g)(1) of 

this section, the employer must keep 

that employee removed from the 

workplace until the employee provides 

a test result. 

(3) When an employee has received a 

positive COVID–19 test, or has been 

diagnosed with COVID–19 by a licensed 

healthcare provider, the employer must 

not require that employee to undergo 

COVID–19 testing as required under 

paragraph (g) of this section for 90 days 

following the date of their positive test 

or diagnosis. 

(4) The employer must maintain a 

record of each test result provided by 

each employee under paragraph (g)(1) of 

this section or obtained during tests 

conducted by the employer. These 

records are considered to be employee 

medical records and must be 

maintained as such records in 

accordance with § 1910.1020 and must 

not be disclosed except as required or 

authorized by this section or other 

federal law. These records are not 

subject to the retention requirements of 

§ 1910.1020(d)(1)(i) but must be 

maintained and preserved while this 

section remains in effect. 

(h) Employee notification to employer 

of a positive COVID–19 test and 

removal. Regardless of COVID–19 

vaccination status or any COVID–19 

testing required under paragraph (g) of 

this section, the employer must: 

(1) Require each employee to 

promptly notify the employer when 

they receive a positive COVID–19 test or 

are diagnosed with COVID–19 by a 

licensed healthcare provider; and 

(2) Immediately remove from the 

workplace any employee who receives a 

positive COVID–19 test or is diagnosed 

with COVID–19 by a licensed healthcare 

provider and keep the employee 

removed until the employee: 

(i) Receives a negative result on a 

COVID–19 nucleic acid amplification 

test (NAAT) following a positive result 

on a COVID–19 antigen test if the 

employee chooses to seek a NAAT test 

for confirmatory testing; 

(ii) meets the return to work criteria 

in CDC’s ‘‘Isolation Guidance’’ 

(incorporated by reference, § 1910.509); 

or 

(iii) Receives a recommendation to 

return to work from a licensed 

healthcare provider. 

Note 1 to paragraph (h)(2): This section 

does not require employers to provide paid 

time to any employee for removal as a result 

of a positive COVID–19 test or diagnosis of 

COVID–19; however, paid time may be 

required by other laws, regulations, or 

collective bargaining agreements or other 

collectively negotiated agreements. 

(i) Face coverings. (1) The employer 

must ensure that each employee who is 

not fully vaccinated wears a face 

covering when indoors and when 

occupying a vehicle with another 

person for work purposes, except: 

(i) When an employee is alone in a 

room with floor to ceiling walls and a 

closed door. 

(ii) For a limited time while the 

employee is eating or drinking at the 

workplace or for identification purposes 

in compliance with safety and security 

requirements. 

(iii) When an employee is wearing a 

respirator or facemask. 

(iv) Where the employer can show 

that the use of face coverings is 

infeasible or creates a greater hazard 

that would excuse compliance with this 

paragraph (e.g., when it is important to 

see the employee’s mouth for reasons 

related to their job duties, when the 

work requires the use of the employee’s 

uncovered mouth, or when the use of a 

face covering presents a risk of serious 

injury or death to the employee). 

(2) The employer must ensure that 

any face covering required to be worn 

by this section: 

(i) Is worn by the employee to fully 

cover the employee’s nose and mouth; 

and 

(ii) Is replaced when wet, soiled, or 

damaged (e.g., is ripped, has holes, or 

has broken ear loops). 

(3) The employer must not prevent 

any employee from voluntarily wearing 

a face covering or facemask unless the 

employer can demonstrate that doing so 

would create a hazard of serious injury 

or death, such as interfering with the 

safe operation of equipment. 

(4) The employer must permit the 

employee to wear a respirator instead of 

a face covering whether required or not. 

In addition, the employer may provide 

respirators to the employee, even if not 

required. In such circumstances, the 

employer must also comply with 

§ 1910.504. 

(5) The employer must not prohibit 

customers or visitors from wearing face 

coverings. 

Note 1 to paragraph (i)(5): Nothing in this 

section precludes employers from requiring 

customers or visitors to wear face coverings. 

Note 1 to paragraph (i): Face shields may 

be worn in addition to face coverings to 

prevent them from getting wet and soiled. 

Note 2 to paragraph (i): This section does 

not require the employer to pay for any costs 

associated with face coverings; however 

employer payment for face coverings may be 

required by other laws, regulations, or 

collective bargaining agreements or other 

collectively negotiated agreements. This 

section also does not prohibit the employer 


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from paying for costs associated with face 

coverings required by this section. 

(j) Information provided to employees. 

The employer must inform each 

employee, in a language and at a literacy 

level the employee understands, about: 

(1) The requirements of this section as 

well as any employer policies and 

procedures established to implement 

this section; 

(2) COVID–19 vaccine efficacy, safety, 

and the benefits of being vaccinated, by 

providing the document, ‘‘Key Things to 

Know About COVID–19 Vaccines,’’ 

available at https://www.cdc.gov/ 

coronavirus/2019-ncov/vaccines/ 

keythingstoknow.html; 

(3) The requirements of 29 CFR 

1904.35(b)(1)(iv), which prohibits the 

employer from discharging or in any 

manner discriminating against an 

employee for reporting a work-related 

injuries or illness, and section 11(c) of 

the OSH Act, which prohibits the 

employer from discriminating against an 

employee for exercising rights under, or 

as a result of actions that are required 

by, this section. Section 11(c) also 

protects the employee from retaliation 

for filing an occupational safety or 

health complaint, reporting a workrelated injuries or illness, or otherwise 

exercising any rights afforded by the 

OSH Act; and 

(4) The prohibitions of 18 U.S.C. 1001 

and of section 17(g) of the OSH Act, 

which provide for criminal penalties 

associated with knowingly supplying 

false statements or documentation. 

(k) Reporting COVID–19 fatalities and 

hospitalizations to OSHA. (1) The 

employer must report to OSHA: 

(i) Each work-related COVID–19 

fatality within 8 hours of the employer 

learning about the fatality. 

(ii) Each work-related COVID–19 inpatient hospitalization within 24 hours 

of the employer learning about the inpatient hospitalization. 

(2) When reporting COVID–19 

fatalities and in-patient hospitalizations 

to OSHA in accordance with paragraph 

(j)(1) of this section, the employer must 

follow the requirements in 29 CFR part 

1904.39, except for 29 CFR part 

1904.39(a)(1) and (2) and (b)(6). 

(l) Availability of records. (1) By the 

end of the next business day after a 

request, the employer must make 

available, for examination and copying, 

the individual COVID–19 vaccine 

documentation and any COVID–19 test 

results for a particular employee to that 

employee and to anyone having written 

authorized consent of that employee. 

(2) By the end of the next business 

day after a request by an employee or an 

employee representative, the employer 

must make available to the requester the 

aggregate number of fully vaccinated 

employees at a workplace along with 

the total number of employees at that 

workplace. 

(3) The employer must provide to the 

Assistant Secretary for examination and 

copying: 

(i) Within 4 business hours of a 

request, the employer’s written policy 

required by paragraph (d) of this 

section, and the aggregate numbers 

described in paragraph (l)(2) of this 

section; and 

(ii) By the end of the next business 

day after a request, all other records and 

other documents required to be 

maintained by this section. 

(m) Dates—(1) Effective date. This 

section is effective as of November 5, 

2021. 

(2) Compliance dates. (i) Employers 

must comply with all requirements of 

this section, except for requirements in 

paragraph (g) of this section, by 

December 6, 2021. 

(ii) Employers must comply with the 

requirements of this section in 

paragraph (g) by January 4, 2022, but 

employees who have completed the 

entire primary vaccination by that date 

do not have to be tested, even if they 

have not yet completed the 2-week 

waiting period. 

■ 4. Amend § 1910.504 by revising 

paragraph (a) to read as follows: 

§ 1910.504 Mini Respiratory Protection 

Program. 

(a) Scope and application. This 

section applies only to respirator use in 

accordance with §§ 1910.501(i)(4) and 

1910.502(f)(4). 

* * * * * 

■ 5. Republish § 1910.505 to read as 

follows: 

§ 1910.505 Severability. 

Each section of this subpart U, and 

each provision within those sections, is 

separate and severable from the other 

sections and provisions. If any provision 

of this subpart is held to be invalid or 

unenforceable on its face, or as applied 

to any person, entity, or circumstance, 

or is stayed or enjoined, that provision 

shall be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, unless such 

holding shall be one of utter invalidity 

or unenforceability, in which event the 

provision shall be severable from this 

subpart and shall not affect the 

remainder of the subpart. 

■ 6. Amend § 1910.509 by revising 

paragraph (b)(5) to read as follows: 

§ 1910.509 Incorporation by reference. 

* * * * * 

(b) * * * 

(5) Isolation Guidance. COVID–19: 

Isolation If You Are Sick; Separate 

yourself from others if you have 

COVID–19, updated February 18, 2021, 

IBR approved for §§ 1910.501(h) and 

1910.502(l). 

* * * * * 

PART 1915—OCCUPATIONAL SAFETY 

AND HEALTH STANDARDS FOR 

SHIPYARD EMPLOYMENT 

■ 7. The authority citation for part 1915 

is revised to read as follows: 

Authority: 33 U.S.C. 941; 29 U.S.C. 653, 

655, 657; Secretary of Labor’s Order No. 12– 

71 (36 FR 8754); 8–76 (41 FR 25059), 9–83 

(48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 

FR 111), 3–2000 (65 FR 50017), 5–2002 (67 

FR 65008), 5–2007 (72 FR 31160), 4–2010 (75 

FR 55355), 1–2012 (77 FR 3912), or 8–2020 

(85 FR 58393); 29 CFR part 1911; and 5 

U.S.C. 553, as applicable. 

Subpart Z—Toxic and Hazardous 

Substances 

■ 8. Add § 1915.1501 to subpart Z to 

read as follows: 

§ 1915.1501 COVID–19. 

The requirements applicable to 

shipyard employment under this section 

are identical to those set forth at 29 CFR 

1910.501. 

PART 1917—MARINE TERMINALS 

■ 9. The authority citation for part 1917 

is revised to read as follows: 

Authority: 33 U.S.C. 941; 29 U.S.C. 653, 

655, 657; Secretary of Labor’s Order No. 12– 

71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 

(48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 

FR 111), 3–2000 (65 FR 50017), 5–2002 (67 

FR 65008), 5–2007 (72 FR 31160), 4–2010 (75 

FR 55355), 1–2012 (77 FR 3912), or 8–2020 

(85 FR 58393), as applicable; and 29 CFR part 

1911. 

Sections 1917.28 and 1917.31 also issued 

under 5 U.S.C. 553. 

Section 1917.29 also issued under 49 

U.S.C. 1801–1819 and 5 U.S.C. 553. 

Subpart B—Marine Terminal 

Operations 

■ 10. Add § 1917.31 to subpart B to read 

as follows: 

§ 1917.31 COVID–19. 

The requirements applicable to 

marine terminal work under this section 

are identical to those set forth at 29 CFR 

1910.501. 

PART 1918—SAFETY AND HEALTH 

REGULATIONS FOR LONGSHORING 

■ 11. The authority citation for part 

1918 is revised to read as follows: 


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Authority: 33 U.S.C. 941; 29 U.S.C. 653, 

655, 657; Secretary of Labor’s Order No. 12– 

71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 

(48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 

FR 111), 3–2000 (65 FR 50017), 5–2002 (67 

FR 65008), 5–2007 (72 FR 31160), 4–2010 (75 

FR 55355), 1–2012 (77 FR 3912), or 8–2020 

(85 FR 58393), as applicable; and 29 CFR 

1911. 

Sections 1918.90 and 1918.110 also issued 

under 5 U.S.C. 553. 

Section 1918.100 also issued under 49 

U.S.C. 5101 et seq. and 5 U.S.C. 553. 

■ 12. Add subpart K to part 1918 to read 

as follows: 

Subpart K—COVID–19. 

Sec. 

1918.107–1918.109 [Reserved] 

1918.110 COVID–19. 

1918.107 through 1918.109 [Reserved] 

§ 1918.110 COVID–19. 

The requirements applicable to 

longshoring work under this section are 

identical to those set forth at 29 CFR 

1910.501. 

PART 1926—SAFETY AND HEALTH 

REGULATIONS FOR CONSTRUCTION 

■ 13. The authority citation for part 

1926 is revised to read as follows: 

Authority: 40 U.S.C. 3704; 29 U.S.C. 653, 

655, and 657; and Secretary of Labor’s Order 

No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 

9–83 (48 FR 35736), 1–90 (55 FR 9033), 6– 

96 (62 FR 111), 3–2000 (65 FR 50017), 5– 

2002 (67 FR 65008), 5–2007 (72 FR 31159), 

4–2010 (75 FR 55355), 1–2012 (77 FR 3912), 

or 8–2020 (85 FR 58393), as applicable; and 

29 CFR part 1911. 

Sections 1926.58, 1926.59, 1926.60, and 

1926.65 also issued under 5 U.S.C. 553 and 

29 CFR part 1911. 

Section 1926.61 also issued under 49 

U.S.C. 1801–1819 and 5 U.S.C. 553. 

Section 1926.62 also issued under sec. 

1031, Public Law 102–550, 106 Stat. 3672 (42 

U.S.C. 4853). 

Section 1926.65 also issued under sec. 126, 

Public Law 99–499, 100 Stat. 1614 (reprinted 

at 29 U.S.C.A. 655 Note) and 5 U.S.C. 553. 

Subpart D—Occupational Health and 

Environmental Controls 

■ 14. Add § 1926.58 to read as follows: 

§ 1926.58 COVID–19. 

The requirements applicable to 

construction work under this section are 

identical to those set forth at 29 CFR 

1910.501 Subpart U. 

PART 1928—OCCUPATIONAL SAFETY 

AND HEALTH STANDARDS FOR 

AGRICULTURE 

■ 15. The authority citation for part 

1928 is revised to read as follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), 4–2010 (75 FR 

55355), or 8–2020 (85 FR 58393), as 

applicable; and 29 CFR 1911. 

Section 1928.21 also issued under 49 

U.S.C. 1801–1819 and 5 U.S.C. 553. 

Subpart B—Applicability of Standards 

■ 16. Amend § 1928.21 by adding 

paragraph (a)(8) to read as follows: 

§ 1928.21 Applicable standards in 29 CFR 

part 1910. 

(a) * * * 

(8) COVID–19—§ 1910.501, but only 

with respect to— 

(i) Agricultural establishments where 

eleven (11) or more employees are 

engaged on any given day in hand-labor 

operations in the field; and 

(ii) Agricultural establishments that 

maintain a temporary labor camp, 

regardless of how many employees are 

engaged on any given day in hand-labor 

operations in the field. 

* * * * * 

[FR Doc. 2021–23643 Filed 11–4–21; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 416, 418, 441, 460, 482, 

483, 484, 485, 486, 491 and 494 

[CMS–3415–IFC] 

RIN 0938–AU75 

Medicare and Medicaid Programs; 

Omnibus COVID–19 Health Care Staff 

Vaccination 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Interim final rule with comment 

period. 

SUMMARY: This interim final rule with 

comment period revises the 

requirements that most Medicare- and 

Medicaid-certified providers and 

suppliers must meet to participate in the 

Medicare and Medicaid programs. 

These changes are necessary to help 

protect the health and safety of 

residents, clients, patients, PACE 

participants, and staff, and reflect 

lessons learned to date as a result of the 

COVID–19 public health emergency. 

The revisions to the requirements 

establish COVID–19 vaccination 

requirements for staff at the included 

Medicare- and Medicaid-certified 

providers and suppliers. 

DATES: 

Effective date: These regulations are 

effective on November 5, 2021. 

Implementation dates: The 

regulations included in Phase 1 [42 CFR 

416.51(c) through (c)(3)(i) and (c)(3)(iii) 

through (x), 418.60(d) through (d)(3)(i) 

and (d)(3)(iii) through (x), 441.151(c) 

through (c)(3)(i) and (c)(3)(iii) through 

(x), 460.74(d) through (d)(3)(i) and 

(d)(3)(iii) through (x), 482.42(g) through 

(g)(3)(i) and (g)(3)(iii) through (x), 

483.80(d)(3)(v) and 483.80(i) through 

(i)(3)(i) and (i)(3)(iii) through (x), 

483.430(f) through (f)(3)(i) and (f)(3)(iii) 

through (x), 483.460(a)(4)(v), 484.70(d) 

through (d)(3)(i) and (d)(3)(iii) through 

(x), 485.58(d)(4), 485.70(n) through 

(n)(3)(i) and (n)(3)(iii) through (x), 

485.640(f) through (f)(3)(i) and (f)(3)(iii) 

through (x), 485.725(f) through (f)(3)(i) 

through (f)(3)(iii) through (x), 485.904(c) 

through (c)(3)(i) and (c)(3)(iii) through 

(x), 486.525(c) through (c)(3)(i) and 

(c)(3)(iii) through (x), 491.8(d) through 

(d)(3)(i) and (d)(3)(iii) through (x), 

494.30(b) through (b)((3)(i) and (b)(3)(iii) 

through (x) must be implemented by 

December 6, 2021. 

The regulations included in Phase 2 

[42 CFR 416.51(c)(3)(ii), 418.60(d)(3)(ii), 

441.151(c)(3)(ii), 460.74(d)(3)(ii), 

482.42(g)(3)(ii), 483.80(i)(3)(ii), 

483.430(f)(3)(ii), 484.70(d)(3)(ii), 

485.70(n)(3)(ii), 485.640(f)(3)(ii), 

485.725(f)(3)(ii), 485.904(c)(3)(ii), 

486.525(c)(3)(ii), 491.8(d)(3)(ii), 

494.30(b)(3)(ii)] must be implemented 

by January 4, 2022. Staff who have 

completed a primary vaccination series 

by this date are considered to have met 

these requirements, even if they have 

not yet completed the 14-day waiting 

period required for full vaccination. 

Comment date: To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. on 

January 4, 2022. 

ADDRESSES: In commenting, please refer 

to file code CMS–3415–IFC. 

Comments, including mass comment 

submissions, must be submitted in one 

of the following three ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–3415–IFC, P.O. Box 8016, 

Baltimore, MD 21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 


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