Skip to main content

As the situation in Ukraine evolves, businesses should be mindful of potential risks to their people, assets, operations, or supply chains in the region and globally. Marsh, as part of the Marsh McLennan family of companies, has created a page with information, tools, and resources related to the Russia-Ukraine conflict. Please visit the page for the latest information.

November 9, 2021

OSHA’s COVID-19 vaccination and testing emergency temporary standard in the courts – now what?

This past September, President Joe Biden outlined his COVID-19 plan for the nation. As part of that announcement, the President stated that OSHA would be establishing an Emergency Temporary Standard (ETS) requiring employers to implement a vaccination program if they had over 100 employees. On November 4, 2021, the final version of this standard was released.

This ETS applies to all employers who have 100 or more employees on November 5, 2021 and forward as long as the standard remains in place. The requirements for these employers are as follows:

  • Employers must implement a COVID-19 vaccination policy that requires mandatory vaccination or allows employees to either get vaccinated or undergo weekly COVID-19 testing.

  • Employers must determine the vaccination status for each employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records and a roster of each employee.

  • All employers must support vaccination by providing up to 4 hours of paid time to receive each dose and up to 2 days to recover from any side effects from each dose.

  • Employers must ensure that employees who aren’t fully vaccinated are tested at least weekly (if in the workplace at least once a week) or within 7 days before entering the workplace.
    • The ETS does not require employers to pay for any costs associated with testing; however, there could be other labor laws, state requirements, or contractual agreements that may require the employer to pay.
  • Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes.

  • Employees must be required to provide prompt notice when they test positive for COVID-19 or if they are diagnosed with COVID-19. Employees who have received a positive test or a COVID-19 diagnosis must immediately be removed from the workplace, regardless of their vaccination status and they must not be allowed to return until they meet certain return to work criteria.

  • Employers must provide employees with information about the requirements of the ETS, the company policy, information on vaccine efficacy, protections against retaliation and laws on knowingly supplying false information.

  • Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

The U.S. Court of Appeals for the Fifth Circuit granted an injunction delaying enforcement of the OSHA COVID-19 ETS after an emergency hearing on November 6, 2021. On November 8, 2021, the DOL/OSHA filed an appeal.

Now what? Below is a list of three action steps organizations should take right now, regardless of size.

  1. Assuming the two major policy options stay in place, organizations must select between either a) Mandated vaccinations or b) Vaccinations or weekly COVID testing. Organizations should use this time to draft a policy. Marsh McLennan Agency can assist organizations with templates for use in drafting a policy. Sample Employer Policy for Mandating the Vaccine and Sample Employer Policy for Providing Individual Choice with Weekly Testing

  2. Organizations must determine a strategy for tracking vaccinated employees and tracking any weekly COVID testing. There are a number of options available to employers. HR departments may track this information via an excel file, utilize paper forms, HR software such as ADP, Paycor, or Workday to list a few. Other options include third-party vendors such as Vital Check, US Wellness, Clear to Go, and Medikeeper to list just a few. Vendor services and pricing are often subject to change. Marsh McLennan Agency has resources that can help guide you in your decisions.

  3. Organizations will also need to determine how they will respond to request for a medical or religious exemption. Marsh McLennan Agency can assist with resources such as Guide Response for Medical WaiverMedical Waiver template, Guide Response for Religious Waiver, and Religious Waiver template.

The full text of the OSHA standard can be found at In addition to the regulatory information on their site, OSHA has provided fact sheets and resources for finding vaccination sites and reasonable accommodations.

This remains a very fluid situation and Marsh McLennan Agency is following it very closely. For the most up to date information, you can follow us on LinkedIn. If you have any questions specific to your organization, please reach out to your Marsh McLennan Agency representative.

About Marsh

Marsh is the world’s leading insurance broker and risk advisor. With around 40,000 colleagues operating in more than 130 countries, Marsh serves commercial and individual clients with data-driven risk solutions and advisory services. Marsh is a business of Marsh McLennan (NYSE: MMC), the world’s leading professional services firm in the areas of risk, strategy and people. With annual revenue over $17 billion, Marsh McLennan helps clients navigate an increasingly dynamic and complex environment through four market-leading businesses: Marsh, Guy Carpenter, Mercer and Oliver Wyman. Follow Marsh on Twitter @MarshGlobal; LinkedIn; Facebook; and YouTube, or subscribe to BRINK.

About Marsh McLennan Agency

Marsh McLennan Agency (MMA) provides business insurance, employee health & benefits, retirement, and private client insurance solutions to organizations and individuals seeking limitless possibilities. With 8,000 colleagues and 160 offices across North America, MMA combines the personalized service model of a local consultant with the global resources of the world’s leading professional services firm, Marsh McLennan (NYSE: MMC).

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Marsh & McLennan Agency LLC shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affected if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. d/b/a in California as Marsh & McLennan Insurance Agency LLC; CA Insurance Lic: 0H18131. Copyright © 2021 Marsh & McLennan Agency LLC. All rights reserved.