Mandatory Employee Vaccines – Coming to A State Near You?

While available vaccines have proven highly effective in controlling COVID-19 and its variants to date, the virus continues to spread, particularly among unvaccinated populations. In the face of flagging interest, officials across the U.S. have tried different approaches to increase vaccination rates. For example, officials launched incentive programs, stressed personal responsibility, deployed mobile vaccination units, and coordinated with corporate and community partners to encourage and effectuate vaccine uptake.

Having exhausted those avenues, and with the rise of more contagious COVID-19 variants, some officials are going a step further. Federal, state, and local authorities have announced that, in essence, they are requiring certain categories of workers to be vaccinated. Generally, under these types of mandates, workers who decline vaccination must comply with measures that do not apply to their vaccinated counterparts, such as weekly COVID-19 testing and/or mask wearing. Depending on the jurisdiction and the sector involved, however, unvaccinated workers might not have such alternatives.

The chart below – current as of December 2, 2021 at 9:00 a.m. (Central) – provides basic information on vaccination mandates issued at the federal and statewide levels. It covers directives that affect public or private entities as employers.

This chart also includes information about state responses to the (currently enjoined) vaccine-or-test emergency temporary standard (ETS), which was released on November 4, 2021 by the federal Occupational Safety and Health Administration (OSHA). That information will be provided only for states that have workplace safety and health programs approved by OSHA. States with approved plans are required to adopt standards that are at least as effective as (even if not identical to) OSHA’s standards. 
 

This post does not address local guidance, orders that relate to customer or patron vaccination status (e.g., “vaccine passports”), narrower mandates specific only to schools or educational institutions, or recommendations that do not impose obligations.  

In addition, this post does not address pending litigation over particular mandates, or other significant substantive issues related to employee vaccinations, including potential leaves of absence, discrimination, accommodation, incentives, and privacy concerns. As a result, employers should consult with counsel for guidance on these legal questions and the latest developments.

Employers interested in further information might also wish to review our posts summarizing statewide guidance on reopening and mitigation protocols, face coverings, and employee health screenings.

Jurisdictions Seeking to Curtail Private Employer Vaccine Mandates

While mandatory vaccine programs are the focus of this post, employers should be aware that numerous states have taken the opposite approach, adopting new laws intended to curtail workplace vaccine mandates. A couple of states — Montana and Tennessee — have sought to ban such mandates entirely. Others have enacted laws that may not preclude private employers from requiring employee vaccinations but, rather, impose specific limitations on any such programs. For example, several states enacted laws that require private employers to offer expanded exemption options for employees who do not wish to be vaccinated for various reasons. Such laws are not summarized in the chart below but are in place in the following1 jurisdictions:  

Employers requiring further information on specific restrictions should consult with an attorney for details about this pushback from certain states.

Jurisdictions Mandating Vaccination Programs for Certain Workers

Jurisdiction

Vaccine Requirements for Employees

OSHA Vaccine-or-Test ETS Adopted?
This column covers states with OSHA-approved state plans only.

Last Updated

Federal – OSHA ETS

The text of the 11/4/21 OSHA ETS may be found here. OSHA also released this summary and launched an FAQs page.

On September 9, President Biden announced an action plan: Path Out of the Pandemic. As discussed in this Littler article, the plan includes, among other things, requirements that employees working for large private employers, the federal government, federal contractors, and healthcare entities be vaccinated against COVID-19.

For the private sector, the plan directed the Department of Labor’s Occupational Safety and Health Administration to develop an Emergency Temporary Standard (ETS) to require all employers with at least 100 employees to ensure their workforce is fully vaccinated or else subjected to weekly COVID-19 testing before coming into work. 

The ETS and a fact sheet summarizing the rule were released on November 4, 2021. OSHA also released this three-page summary sheet about the ETS and launched an FAQs page. Additional details and resources can be found here.

Highlights of the ETS include, per the fact sheet:

  • "All covered employers must ensure that their employees have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4th. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider."
     
  • "All covered employers are required to provide paid-time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working."
     
  • "All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace."
     
  • "While the testing requirement for unvaccinated workers will begin after January 4th, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on December 5th."

Further information and analysis can be found in this Littler article.

While the twists and turns of specific legislation or lawsuits are outside the scope of this chart, employers should be aware that numerous states and other entities are pursuing various challenges to the federal vaccine mandates.

Significantly, and as discussed in this Littler article, the U.S. Court of Appeals for the Fifth Circuit enjoined enforcement and implementation of the ETS on November 12, 2021. Consistent with that order, OSHA updated its website on the Vaccination and Testing ETS with the following statement: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation." Proceedings remain pending and have been assigned to the Sixth Circuit

 

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11/17/21

Federal – Federal Contractors

For FAQs and further details, visit the Safer Federal Workforce site, including the For Federal Contractors and What's New? pages, which are updated regularly.

As part of the Path Out of the Pandemic, the president issued an executive order mandating vaccination for some employees of some federal contractors. The new order supplements an earlier July 29 directive and eliminates the testing option for those who are not vaccinated unless they receive an approved exemption.

Requirements for federal contractors are coordinated by a Safer Federal Workforce Task Force, which issued its initial guidance on September 24.

As discussed in these Littler articles, the Safer Federal Workforce COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors requires:

  1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
  2. Compliance by individuals, including covered contractor employees and visitors, with the guidance related to masking and physical distancing while in covered contractor workplaces; and
  3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Covered employees originally were required to be fully vaccinated by December 8. As discussed in this Littler article, however, the White House announced on November 4 that the deadline for employers covered by the federal contractor vaccine requirement to comply with the vaccine mandate will be extended to January 4, 2022.  According to a Fact Sheet, in order to “make it easy for businesses and workers to comply,” the deadline for covered workers to be fully vaccinated – either two doses of the Pfizer or Moderna vaccines, or one dose of the Johnson & Johnson vaccine – “will be the same for the OSHA rule, the CMS rule, and the previously-announced federal contractor vaccination requirement” – i.e., no later than January 4, 2022.

Additional FAQs and an overview page for federal contractors were released on September 30 and are periodically revised with further guidance.

On October 1, the FAR Council released a Memorandum on Issuance of Agency Deviations to Implement Executive Order 14042. "It supports agencies in their issuance of deviations to incorporate a clause into their solicitations and contracts that implements Safer Federal Workforce Task Force guidance on workplace safety protocols for contractor or subcontractor workplace locations." 

While the twists and turns of specific pending lawsuits are outside the scope of this chart, employers should be aware that numerous states have filed legal challenges to the federal contractor mandate. On November 30, 2021, a federal district court judge in Kentucky issued a preliminary injunction precluding the implementation of the contractor mandate. The injunction as issued covers Kentucky, Ohio and Tennessee.

 

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11/30/21

Federal – CMS Requirements

The text of the CMS rule may be found here. CMS also issued these FAQs.

On August 18, the White House issued a Fact Sheet announcing that U.S. Department of Health and Human Services will develop new regulations requiring nursing homes to require that all of their workers be fully vaccinated against COVID-19 in order to continue receiving Medicare and Medicaid funding. 

As part of the Path Out of the Pandemic, and building on the earlier announcement concerning nursing home staff, the president's plan provides that the Centers for Medicare and Medicaid Services will begin requiring vaccination for employees in most healthcare settings, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, as a condition for continued federal funding.

In conjunction with the release of the OSHA ETS, on November 4, 2021, the Biden administration and CMS issued an interim final rule requiring healthcare worker vaccinations to be completed by January 4, 2022. CMS also issued these FAQsThis Littler article provides a brief summary of the rule, including its phases and coverage. 

While the twists and turns of specific pending lawsuits are outside the scope of this chart, employers should be aware that numerous states have filed legal challenges to the CMS mandate. On November 29, 2021, a federal district court judge in Missouri granted a preliminary injunction, blocking the CMS rule. The order enjoins implementation and enforcement of the mandate “against any and all Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits.”

A federal district court judge in Louisiana issued a separate injunction order on November 30, 2021. Per its terms, the preliminary injunction applies nationwide, except for the 10 states already subject to the above-noted November 29 injunction.

 

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11/30/21

Federal – Federal Employees

For FAQs and further details, visit the Safer Federal Workforce site, including the What's New? page.

Per President Biden’s July 29, 2021 announcement, and this fact sheet, federal government employees were asked to attest to their vaccination status. Anyone who does not attest or is not vaccinated will be required to mask at all times, test one to two times per week, socially distance, and generally will not be allowed to travel for work. Relatedly, on August 25, 2021, and following the FDA's approval of the Pfizer vaccine,  the Department of Defense announced the release of a memo that “directs the secretaries of the military departments to immediately begin full vaccination of all members of the department on active duty or in the Guard or Reserve, who aren't yet fully vaccinated against COVID-19.”

The U.S. Department of Health and Human Services announced that it will require more than 25,000 members of its healthcare workforce to be vaccinated against COVID-19. Members include NIH’s and Indian Health Service’s staff, contractors, trainees, and volunteers who serve in federally operated health care and research facilities or may come in contact with patients. The U.S. Surgeon General will require members of the U.S. Public Health Service Commissioned Corps to be vaccinated as well.

As part of the Path Out of the Pandemic, the president issued an executive order mandating vaccination for all executive branch employees. The new order supplements the earlier July 29 directive and eliminates the testing option for those who are not vaccinated unless they receive an approved exemption.

On September 16, the Safer Federal Workforce Task Force released vaccination guidance on how agencies must implement the president's September 9 order, requiring vaccination for federal employees by November 22 (last dose received by November 8). The guidance page includes new and updated FAQs addressing protocols for federal employees and for federal contractors and visitors.

On October 1, the  Chief Human Capital Officers Council issued the following guidance related to the vaccine requirement for federal employees under Executive Order 14043:

More information is available at the Safer Federal Workforce FAQs on Vaccination Requirements.

 

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11/4/21

Alabama

No requirement

(no OSHA-approved state plan)

 

Alaska

No requirement

Alaska joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

11/5/21

Arizona

No requirement

NOTE: At least one Arizona locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

The Arizona attorney general filed a lawsuit on 9/14/21, which was amended 10/22/21, that includes a challenge to the (then-forthcoming) OSHA ETS.

The attorney general also joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

The Industrial Commission of Arizona issued a statement on 11/4/21, explaining that it "has exclusive authority to decide if, when, and to what extent the State of Arizona will adopt the OSHA vaccination ETS. . . . Until such time that the Industrial Commission takes formal action to adopt all or part of the vaccination ETS, however, the temporary standards are not binding or enforceable against Arizona’s private and public sector employers and employees."

11/5/21

Arkansas

No requirement

(no OSHA-approved state plan)

 

California

Per the governor’s announcement, and this public health order, all state workers – plus workers in health care and high-risk congregate settings – must “either show proof of full vaccination or be tested at least once per week. . . . The new policy for state workers will take effect August 2 and testing will be phased in over the next few weeks. The new policy for health care workers and congregate facilities will take effect on August 9, and health care facilities will have until August 23 to come into full compliance.” The state released related Q&A guidance on that order; that guidance was updated on September 3.

Moreover, per an August 5 announcement, officials expanded the vaccination requirement to cover more types of health care facilities and issued two new public health orders. "The first order requires workers in health care settings to be fully vaccinated or receive their second dose by September 30, 2021." If a health care worker remains unvaccinated for religious or qualifying medical reasons, testing is required. The state released related Q&A guidance on that order, updated September 14. The second August 5 order applies to visitors at hospitals, skilled nursing facilities, and intermediate care facilities and was superseded by an amended health officer order dated August 26

Per an August 11 announcement, the Department of Public Health released a public health order “requiring all school staff to either show proof of full vaccination or be tested at least once per week. . . . The new policy for school staff will take effect August 12, 2021, and schools must be in full compliance by October 15, 2021.” The order applies to public and private K-12 schools but does not apply to higher education or child care facilities.

An August 19 vaccination order applies to health care workers in state and local correctional facilities and detention centers. The state released related Q&A guidance on that order on September 15.

On September 28, the Department of Public Health announced the issuance of a public health order (Adult Care Facilities and Direct Care Worker Vaccine Requirement) “requiring COVID-19 vaccinations for workers in adult and senior care facilities and those employed in in-home direct care settings. The order applies to all adult and senior care facilities, certain persons who provide In-Home Supportive Services (IHSS), certified home care aides, and Waiver Personal Care Services (WPCS) providers, hospice workers who provide services in the home or a licensed facility, and all employees, as well as service provider workers, who provide services through the state's regional centers that serve individuals with developmental and intellectual disabilities.” Covered workers “must have their first dose of a one-dose regimen or their second dose of a two-dose regimen by November 30.”

NOTE: Several California localities may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

9/28/21

Colorado

Per the governor’s announcement, and as summarized in these FAQs, “unvaccinated state workers must begin serial testing and continue mask-wearing indoors in public spaces. . . . The plan is effective Sept. 20, 2021.”

The Colorado Department of Corrections, Department of Public Health and Environment (CDPHE), and Department of Human Services announced that agency staff members and other state employees who interact with vulnerable populations and populations living in congregate living settings will be required to be vaccinated.  The staff members included in the mandate for CDOC and CDPHE will have until September 30 to receive the first dose of the vaccine and are required to be fully vaccinated by October 31. CDHS staff will be on a staggered rollout by facility with fully vaccinated dates between October 31 and November 14. 

On August 30, the Board of Health announced that it adopted emergency regulations mandating that all employees, direct contractors, and support staff of licensed healthcare settings receive their first dose of the COVID-19 vaccine by September 30 and be fully vaccinated no later than October 31. The rule also requires healthcare facilities to hire only fully vaccinated workers after October 31.

In addition, per an August 31 announcement and the Sixth Amended Public Health Order 20-38, the CDPHE added a vaccination requirement applicable to state contractors (including subcontractors) and their workers if they physically enter state facilities. Such workers must receive their first dose by September 30 and must be fully vaccinated by October 31. Contractors and workers who do not provide proof of vaccination will be considered unvaccinated and will not be permitted to access state facilities but may provide remote services.

Amending the above provisions, on September 30 the CDPHE  issued its Seventh Amended Public Health Order 20-38. As summarized here, the order requires “state contractors entering state facilities to provide services to a client, patient, resident or youth living in the facility who have a medical or religious exemption from immunization approved by their employer to be tested for COVID-19 twice weekly, and excluded from the facility and required to isolate if they test positive.” It imposes the same mandatory testing/exclusion protocol to “all other state contractors entering state facilities who are unvaccinated or not fully vaccinated or who have a medical or religious exemption from immunization approved by their employer.” Finally, the amendment requires state contractors to confirm “that all state contract workers who are not fully vaccinated and are required to participate in twice weekly COVID-19 testing are doing so.”

NOTE: At least one Colorado locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

9/30/21

Connecticut

Per the governor's announcement, state law as amended by Executive Order No. 13A, the Department of Public Health "plans to require that all unvaccinated nursing home staff statewide receive weekly testing for COVID-19."

Moreover, as explained by the governor and pursuant to Executive Order 13B, by September 7, all employees working at long-term care facilities: (i) must be fully vaccinated against COVID-19; (ii) must have received a first dose and have either received a second dose or have an appointment for the second dose; or (iii) must have been exempted from vaccination. On September 3, the governor issued Executive Order 13F, which extends the deadline for these workers to September 27 (matching the below requirement for childcare and schools).

Per Executive Order No. 13D (see subsequent order below, however), all state employees, as well as staff of all childcare facilities and preK-12 schools statewide, must receive at least one dose of a COVID-19 vaccine by September 27. Those who do not get vaccinated due to certain exemptions will be required to be tested for COVID-19 on a weekly basis. State hospital and long-term care employees will not have the option of being tested in lieu of vaccination.

On September 10, the governor announced that he issued Executive Order No. 13G, which "replaces and clarifies" Executive Order No. 13D. Order No. 13G does not change the substance or timelines of the previous order and still requires that all Connecticut state employees and staff of all childcare facilities and preK-12 schools statewide receive at least one dose of a COVID-19 vaccine by September 27, 2021. Those who do not get vaccinated due to certain exemptions will be required to test for COVID-19 on a weekly basis. However, state hospital and long-term care employees do not have the option of testing in lieu of vaccination.” The order also lists the facilities with employees or contract workers affected by the mandate and “clarifies contractors’ obligation to verify the vaccination and testing status of the workers that they provide to state agencies, school boards, or childcare facilities.” 

NOTE: At least one Connecticut locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

9/10/21

Delaware

Per the governor's announcement, beginning September 30, staff in long-term care and other healthcare facilities will be required to provide proof of vaccination or undergo regular testing. The requirements should be available here. State employees will be required to provide proof of vaccination or undergo regular testing for COVID-19. Additional information will be provided to state employees by the Delaware Department of Human Resources. 

On September 28, officials announced that, as of November 1, “educators, school staff, contractors, and volunteers who work in K-12 public and private schools must get vaccinated for COVID-19 or undergo weekly testing.”

On October 15, officials released an Emergency Secretary’s Order, which implements the above announcement and formally requires educators, school staff, volunteers, and contractors working in Delaware schools (both public and private K-12) to be vaccinated against COVID-19 or undergo weekly testing beginning November 1.

(no OSHA-approved state plan)

10/15/21

District of Columbia

Per the mayor's announcement and Order 2021-099, "all employees, contractors, interns and grantees of the Government of the District of Columbia must be fully vaccinated against COVID-19" by September 19. The order also applies to new hires for vacancies posted on or after August 14. Employees who remain unvaccinated (even if exempted) will be required to undergo weekly testing. Moreover, all healthcare workers in the District must receive at least the first dose of a vaccine by September 30 (except those individuals that may be exempt due to religious beliefs or medical conditions). 

In addition, per a September 20 announcement, all adults who are regularly in schools and child care centers facilities in the District must be vaccinated against COVID-19 by November 1. There will be no test-out option. Order 2021-109 formalizes that announcement and lists the categories of people who are covered by the requirement, including adults involved in teaching, administration, athletics (including student athletes), tech support, social work, school buses, security, janitorial works, and busing.

(no OSHA-approved plan)

9/20/21

Florida

No requirement

NOTE: At least one Florida locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

 

Georgia

No requirement

(no OSHA-approved state plan)

 

Hawaii

Per the governor’s announcement, and this emergency proclamation, beginning August 16, “all State and county employees must provide their vaccination status to their department, office or agency. If they cannot provide proof of vaccination, they will be subject to regular COVID-19 testing.”

On September 9, Governor Ige announced that he signed “an executive order that requires contractors and visitors at state facilities and on state property to provide their vaccination or testing status prior to entry.” Executive Order No. 21-07 requires state agencies to “develop and implement policies to carry out [the] order no later than September 13.” Contractors will be required: (1) to identify employees accessing state facilities and attest to each individual’s vaccination status; (2) to verify on a weekly basis that employees who are not fully vaccinated have been tested once or twice a week; (3) to ensure that employees who are not fully vaccinated do not “enter, work, or provide services in any State facilities unless the employee obtains a negative test result;” and (4) if not otherwise required, to “ensure that all employees, whether fully vaccinated, unvaccinated, or partially vaccinated, will wear a mask the entire time they are present in any State facility and physically distance themselves from others.” 

Although the governor issued an amended emergency proclamation on November 29, he announced that the vaccination requirements will remain unchanged.

NOTE: At least one Hawaii locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

11/29/21

Idaho

No requirement

(no OSHA-approved state plan)

 

Illinois

Per the governor’s announcement, vaccinations will be required for state employees working in state-operated congregate settings, including state prisons and veterans homes, as of October 4.

The governor further announced that, as of September 5, the state will require additional individuals to be vaccinated or submit to testing at least once a week, including preschool through 12 teachers and staff; higher education personnel; and higher education students. In addition, “[t]o lower the number of breakthrough cases that require hospital admission, the majority of whom are 65 and over or immunocompromised, all healthcare workers, including workers at public and private nursing homes, must get vaccinated.”  

On August 26, the governor issued Executive Order 2021-20 to formalize the requirements for these groups.

On September 3, the governor announced a two-week extension of the September 5 deadline for mandatory vaccinations: "All healthcare workers, including nursing home employees, all P-12 teachers and staff, as well as higher education personnel and students will now be required to receive an initial dose of the COVID-19 vaccine by September 19, 2021.” Executive Order 2021-22 formalized that change. The state also released these FAQs about the order.

On September 17, the governor issued Executive Order 2021-23, which, among other things, extends the deadline for the vaccine mandate as applicable to state employees at state-owned or operated congregate facilities as well as to contractors and vendors who work at such facilities. Those workers must receive their first dose (or only dose, if a single-dose vaccine) no later than October 14 and their second dose by November 18. 

On October 15, the governor issued Executive Order 2021-27, which, among other things, again extends the above-mentioned deadline for the vaccine mandate as applicable to state employees at state-owned or operated congregate facilities as well as to contractors and vendors who work at such facilities. Those workers must receive their first dose (or only dose, if a single-dose vaccine) no later than October 26 and their second dose by November 30. 

On October 22, the governor issued  Executive Order 2021-28, which imposes vaccine-or-test requirements on people working in licensed day care centers. “[A]ll licensed daycare center staff in Illinois will be required to receive their first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by December 3, 2021, and the second dose of a two-dose COVID-19 vaccine series by January 3, 2022.  Any daycare center staff members who are not fully vaccinated by December 3, 2021, will have to do, at a minimum, weekly COVID-19 testing until they are fully vaccinated.”

NOTE: At least one Illinois locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

10/22/21

Indiana

No requirement

Indiana filed a lawsuit on 11/5/21, challenging the OSHA ETS.

11/5/21

Iowa

No requirement

Iowa joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

11/5/21

Kansas

No requirement

(no OSHA-approved state plan)

 

Kentucky

Per the governor’s announcement, “the cabinet will strongly encourage all contractors and state employees working in these state-operated facilities be fully vaccinated against COVID-19 by Oct. 1, unless there is a religious or medical reason they cannot be vaccinated. If any of the staff in these facilities is unvaccinated, they will be tested at least twice weekly for their safety and the safety of the Kentuckians they serve.”

Kentucky joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

11/5/21

Louisiana

No requirement

NOTE: At least one Louisiana locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

 

Maine

Per the governor's announcement, an Emergency Rule will require certain healthcare workers to be fully vaccinated for COVID by October 1. “Health care workers” Includes individuals employed by a hospital, multi-level health care facility, home health agency, nursing facility, residential care facility, and intermediate care facility for individuals with intellectual disabilities that is licensed by the State of Maine. The emergency rule also requires those employed by emergency medical service organizations or dental practices to be vaccinated for COVID. 

On September 2, the governor announced that enforcement of the vaccine mandate for health care workers will not begin until October 29, “providing an additional month for health care workers to complete their vaccination protocol." 

The Maine Department of Health and Human Services announced the issuance of the state’s “final rule that adds COVID-19 to the set of vaccinations required of designated health care facility workers. After taking public comment, this final rule incorporates feedback, adopts some clarifying guidance, and replaces the emergency rule which has expired. Updated FAQs describe the final rule’s changes and potential interactions with recently issued State and Federal rules on vaccination for COVID-19 to promote workplace and health facility safety.” The final rule took effect on November 10. 

On September 17, the Maine Department of Labor confirmed that the OSHA ETS “will apply to public sector employers in Maine, including state, county, and local governments and public school systems.” (Maine’s state-approved plan covers state and local government workers only. OSHA regulations apply to the private sector.)

As announced on November 4, 2021 and discussed at this site, the Maine Department of Labor is in the process of reviewing the ETS.

Moreover, on November 15, officials announced that, at a December 2 meeting, they “will adopt for the public sector OSHAs Emergency Temporary Standard on requiring all private employers with 100 or more employees to ensure their workforce is fully vaccinated for COVID-19 or require any workers who remain unvaccinated to produce a negative COVID-19 test result on at least a weekly basis before coming to work.”

11/15/21

Maryland

Per the governor’s announcement, the Department of Health issued an Amended Directive and Order Regarding Vaccination Matters, which requires all employees of the state’s nursing homes and all employees of Maryland hospitals to show proof of vaccination, or adhere to ongoing COVID-19 screening and testing. The first dose must be received by September 1. The Directive and Order is effective until December 21 at 11:59 p.m. or when the federal Determination that a Public Health Emergency Exists Nationwide as the Result of the 2019 Novel Coronavirus is terminated, whichever condition comes first.

NOTE: At least one Maryland locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

8/19/21

Massachusetts

Per the governor’s announcement, and this public health order, Massachusetts plans to implement a vaccine mandate for staff at certain non-state operated skilled nursing facilities as well as for staff at two Soldiers’ Homes. Covered “[p]ersonnel includes all individuals employed directly or by contract by the LTC provider. All unvaccinated personnel are to receive a first dose of a two-dose series by September 1, 2021; and be fully vaccinated by October 10, 2021.” The State Department of Public Health issued updated Guidance Memorandum regarding COVID-19 personnel vaccination requirement to nursing home administrators. 

Per the governor’s announcement and an Executive Order 595, all Executive Department employees must provide proof they have been fully vaccinated on or before October 17 or be subject to disciplinary action, up to and including termination. The policy applies to both employees working in-person and those who are teleworking.

On September 1, the Executive Office of Health and Human Services announced that it planned to expand the previously-announced vaccine requirement applicable to nursing home staff “to all staff at rest homes, assisted living residences (ALRs), hospice programs and to home care workers (HCWs) providing in-home, direct care services, under a state contract or state program.” Under the proposal, all covered personnel will be required to provide proof of vaccination by October 31, unless they qualify for a limited medical or religious exemption. News outlets report that, at a September 8 meeting, the Massachusetts Public Health Council unanimously approved that proposal; minutes of the meeting will appear here .  

On September 24, the Department of Public Health released an updated guidance memo "to inform nursing homes about how to ensure all personnel are fully vaccinated, report vaccination data for their facility and explain the enforcement action for facilities who do not comply pursuant to the amendments to 105 CMR 150.000, Standards for Long-Term Care Facilities." Also on September 24, the department issued a guidance memo with similar information for hospice programs.

On October 1, and consistent with the governor's prior September 1 announcement, Massachusetts issued emergency regulations that require home care agencies contracting with state agencies and providing direct home-based care to ensure that their workers are vaccinated no later than October 31. The rule, which is set to expire on December 8, also applies to certain non-agency based home care workers. In the same set of regulations, the state promulgated vaccination rules applicable to rest homes, hospice programs, and assisted living facilities.

NOTE: At least one Massachusetts locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

10/1/21

Michigan

No requirement

According to this news article, Michigan does not intend to adopt a standard that is more stringent than the OSHA ETS.

10/21/21

Minnesota

Per the governor's announcement, "state agency employees will be required to show proof of vaccination or participate in regular testing before returning to the workplace,” by September 8.  “Employees who are not vaccinated will be required to receive a negative COVID-19 test at least once a week in order to work on-site at all public workplaces around the state.” 

NOTE: At least one Minnesota locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

Minnesota OSHA announced that it received and is reviewing the OSHA ETS. "After initial review, MNOSHA will provide more information about the ETS in future webinars and on the Department of Labor and Industry website."

The Minnesota OSHA rulemaking site was updated to indicate that “MNOSHA expects to adopt the federal ETS as written within 30 days. The ETS will be effective immediately in Minnesota as of the date of its publication in the State Register. MNOSHA will monitor current litigation and judicial outcomes and re-evaluate if litigation changes MNOSHA's obligations as a state-plan state.” 

11/17/21

Mississippi

No requirement

NOTE: At least one Mississippi locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

 

Missouri

No requirement

NOTE: At least one Missouri locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

 

Montana

No requirement

(no OSHA-approved state plan)

 

Nebraska

No requirement

(no OSHA-approved state plan)

 

Nevada

Per the governor’s announcement, as of August 15, 2021, state government “employees who are not fully vaccinated will be required to take weekly COVID-19 tests and proof of testing and results must be submitted to their human resources officer or department supervisor.” The testing protocol will be retired for any state government workplace that reaches a 70% vaccination rate.

On September 2, the Board of Health announced that, in an emergency meeting to be held on September 10, it would “review COVID-19 vaccination requirements for Nevada Department of Health and Human Services and Nevada Department of Corrections employees working in certain programs." Following that meeting, the Board of Health announced its approval of emergency regulations (also available here; found in the meeting agenda) requiring all “State of Nevada staff who work with vulnerable populations in state-operated, licensed health care settings or state-operated detention facilities” to be fully vaccinated by November 1, 2021. “Employees, contractors and State employees who transfer to the Department of Health and Human Services (DHHS) or the Department of Corrections (NDOC) will be required to follow the new requirement,” along with new hires (who must receive their first shot prior to their start date). 

On September 14, the governor announced that he signed the Board's emergency regulations, which will be effective for 120 days.

 

9/14/21

New Hampshire

No requirement

(no OSHA-approved state plan)

 

New Jersey

Per the governor’s announcement, and Executive Order No. 252, “all workers in certain state and private health care facilities and high-risk congregate settings will be required to be fully vaccinated against COVID-19 or be subject to COVID-19 testing at minimum one to two times per week. . . . Health care facilities and other settings covered by the requirement will have until September 7, 2021 for all employees to come into full compliance with the vaccine mandate.”

The governor announced on August 23 that he signed Executive Order No. 253 "requiring all preschool to Grade 12 school personnel to be fully vaccinated against COVID-19 by October 18, 2021 or be subject to COVID-19 testing at minimum one to two times per week." The order covers "[c]ontractors, providers, and any other individuals performing work in preschool to Grade 12 settings whose job duties require them to make regular visits to such covered settings, including volunteers." Building on Order No. 252, the governor further announced that “[a]ll state employees – including those at state agencies, authorities, and public colleges and universities – are required to complete a full vaccination course or undergo regular testing at a minimum of once to twice each week,” with full compliance required by October 18. 

On September 20, the governor issued Executive Order No. 264, which, among other things, requires all child care center personnel to be fully vaccinated against COVID-19 by November 1 or be subject to COVID-19 testing one to two times per week. 

On October 20, the governor announced that he signed Executive Order No. 271, “which requires new and potential state contractors to demonstrate that all of their employees who enter, work at, or provide services in any state agency location are fully vaccinated or otherwise undergo weekly testing.” The order took immediate effect.

 

10/20/21

New Mexico

Per the governor’s announcement, as well as Executive Order 2021-045 and Executive Order 2021-046, “all state employees [must] either be fully vaccinated or otherwise submit to regular COVID-19 testing. Under the order, state employees who are not fully vaccinated against COVID-19 shall be required to demonstrate a negative COVID-19 test at least once every two weeks. State employees who are not fully vaccinated, under the order, must wear a facemask when indoors during the course and scope of their employment — with minor exceptions for eating and drinking.”

On October 15, the governor issued Executive Order 2021-057, which extends and amends the above provisions requiring state employees to wear masks and to either be vaccinated or undergo weekly testing. The amended order adds a section permitting unvaccinated state employees to return to work if they have tested positive and complete any mandatory isolation period. 

On August 17, the Department of Health issued a Public Health Emergency Order, which requires for all workers in certain medical close-contact congregate settings – including hospitals, nursing homes, juvenile justice facilities, rehabilitation facilities, state correctional facilities and more – to be vaccinated against COVID-19 (with limited exceptions). Unvaccinated individuals who do not qualify for an exemption must receive their first dose of a COVID-19 vaccine within 10 days of August 17, and their second dose, as needed, within 40 days of receiving the first shot. Those individuals must provide documentation to their supervisor or the operator of the facility in which they contract or work. Anyone granted an exemption by the operator of a hospital or congregate care facility must provide documentation of COVID-19 testing on a weekly basis. The Emergency Order also requires that, effective August 23, all workers at private, public, and charter schools in the state who are not fully vaccinated against COVID-19 or who are unwilling to provide proof of vaccination to their respective supervisors must provide proof of a COVID-19 test on a weekly basis.

Subsequently, on September 15, the Department of Health released an Amended Public Health Emergency Order, superseding the above order and addressing requirements for workers in schools, hospitals, and congregate care settings. The order also amends reporting requirements for hospital operators.

 

10/15/21

New York

Per Governor Cuomo's announcement, “patient-facing healthcare workers at state-run hospitals will be required to get vaccinated for COVID-19 by Labor Day. There will not be an option to be tested in lieu of vaccination for these patient-facing healthcare workers.” Further, “all New York State employees . . . will be required to get vaccinated for COVID-19 by Labor Day. State employees who do not get vaccinated will be required to be tested for COVID-19 on a weekly basis.” The governor also announced that “MTA and Port Authority employees working in New York facilities will be required to be vaccinated . . . or be tested weekly.” 

In addition, the governor announced that all healthcare workers in the state, including staff at hospitals and long-term care facilities (e.g., nursing homes, adult care, and other congregate care settings), will be required to be vaccinated against COVID-19 by Monday, September 27. To implement the move, the State Department of Health issued a Section 16 Order (Order for Summary Action) on August 18, with further details about the requirement and its limited exceptions for those with religious or medical reasons. A formal emergency rule concerning the prevention of COVID-19 transmission by healthcare facilities also was released on September 15. That rule, which is set to expire on November 23, requires certain healthcare entities (hospitals, home health agencies, certain home care programs, hospices, and adult care facilities) to require personnel, including contract staff and volunteers, to be fully vaccinated against COVID-19 absent some exemption. 

Per Governor Hochul's August 31 announcement, she "will be working with localities, the state health department and the Public Health and Health Planning Council in the days ahead to put in place mandatory weekly COVID-19 testing for unvaccinated public and charter school employees, and to establish a vaccination requirement for all staff at state-regulated facilities and congregate settings." The governor further announced on September 2 that “the Public Health and Health Planning Council passed an emergency regulation and the Health Commissioner issued a determination requiring all teachers, administrators and other school employees to submit to weekly COVID-19 testing unless they show proof of vaccination, with either a CDC vaccine card or the Excelsior Pass. . . . The emergency regulation, which authorizes the Commissioner to require weekly testing or proof of vaccine, will apply to all schools in New York State until it is no longer necessary as described in the language of the regulation."

On October 5, Governor Hochul announced a “plan to expand the healthcare worker vaccine mandate to include employees who work in certain facilities offering health care to individuals served by the Office of Mental Health and the Office for People with Developmental Disabilities. Under the new directive, staff who work in [these] settings . . . will be required to show proof of at least the first shot of a COVID-19 vaccine series by November 1, without a test-out option. Ahead of that requirement, staff in these settings will be required to submit to weekly testing, if unvaccinated, beginning October 12.” The press release further notes that she intends “to continue expanding the vaccine requirement into the human service and mental hygiene care settings in the coming weeks.”

NOTE: At least one New York locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

10/5/21

North Carolina

Per the governor’s announcement and Executive Order 224 (as extended in Executive Order 229), summarized in these FAQs, state government employees (cabinet agency) who are not vaccinated will be required to wear masks and undergo weekly testing as of September 1.

NOTE: At least one North Carolina locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

The labor commissioner announced that the North Carolina Department of Labor is in the process of reviewing the ETS, while also noting concerns with the federal mandate.

11/4/21

North Dakota

No requirement

(no OSHA-approved state plan)

 

Ohio

No requirement

(no OSHA-approved state plan)

 

Oklahoma

No requirement

(no OSHA-approved state plan)

 

Oregon

Per the governor’s announcement, the Oregon Health Authority will issue a rule that will require “weekly COVID-19 testing for personnel in health care settings to prevent the spread of COVID-19 in health care settings, which can be waived with a proof of vaccination.”  Per a subsequent announcement by the governor, Oregon’s vaccination requirement for health care workers will no longer have a testing alternative. Health care workers will be required to be fully vaccinated by October 18 or 6 weeks after full FDA approval, whichever is later. 

In addition, per the governor's August 10 announcement, "all State of Oregon executive branch employees will be required to be fully vaccinated on or before October 18, or six weeks after a COVID-19 vaccine receives full approval from the U.S. Food and Drug Administration, whichever is later. . . . Individuals unable to be vaccinated due to disability or sincerely held religious belief may be able to qualify for an exception, as required by state and federal law. State of Oregon employees will not have the option of weekly testing instead of showing proof of vaccination." On August 13, the governor issued Executive Order No. 21-29. Per an agreement with their union, some state employees have until November 30 to comply.

Health officials announced that the Secretary of State published mandatory vaccination rules for healthcare providers and staff, and for K-12 school employees (including staff and volunteers) on August 25.

NOTE: At least one Oregon locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

9/20/21

Pennsylvania

Per the governor's announcement, "commonwealth employees in state health care facilities and high-risk congregate care facilities will be required to be fully vaccinated against COVID-19 by September 7, 2021. Individuals who are not vaccinated will be required to undergo weekly COVID-19 testing. Additionally, beginning September 7, all new external hires in these facilities must be vaccinated before commencing employment.”

NOTE: At least one Pennsylvania locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

8/10/21

Puerto Rico

Per the governor’s announcement, and Executive Order 2021-058 (available here), all public employees must receive their first dose of the vaccine by August 16 and complete vaccination by September 30. “All non-vaccinated employees (exempt or non-exempt) must bring a negative COVID-19 test result weekly or a positive result with medical certification that it is not contagious.”

According to news reports, and Executive Order 2021-062, the governor announced that the vaccination requirement also will extend to government contractors, the hospitality sector, and all health facility workers.

In addition, per the governor's August 11 announcement and Executive Order 2021-063, compulsory vaccination also will apply to employees working in (among other things) restaurants, fast food restaurants, food courts, bars, stadiums, cafeterias, theaters, cinemas, convention and activity centers, and places that sell prepared meals. Employees must receive the first dose by August 23, and the second (if needed) by October 7. Unvaccinated employees must present weekly negative or recovery test results.

The governor further extended vaccination requirements on August 19, per Executive Order 2021-064. The order requires gyms, beauty salons, barber shops, spas, childcare centers, casinos, and markets to ensure their employees and contractors are vaccinated, with one dose completed by August 30 and the second dose completed by October 15. Exempted employees must undergo weekly testing or provide a medical certification that they have already recovered from a prior infection. As of August 30, these businesses must also require customers to show proof of vaccination, a negative test result, proof of recovery from a prior infection – or they must reduce their operating capacity to 50%. 

On November 15,  and as discussed in this Littler article, the governor announced the release of Executive Order No. 2021-075, which, among other things, includes vaccine/testing requirements for employers with over 50 employees.

 

11/15/21

Rhode Island

According to news outlets, the governor announced that employees at “state-licensed health care centers” will be required to be fully vaccinated no later than October 1. On August 17, the Department of Health announced that it adopted an emergency rule requiring all health care workers and health care providers to be vaccinated by October 1. The rule also sets forth safety measures to be utilized by unvaccinated personnel in the interim: “[p]rior to October 1st, any worker in a RIDOH-licensed healthcare facility who is not vaccinated is required to wear a face mask and be tested at least twice weekly.” The rule is scheduled to expire on December 14, 2021.

The Rhode Island Department of Health issued FAQs concerning its vaccine mandate, which applies to “[a]ll state health care workers at RIDOH-licensed state health care facilities (Eleanor Slater Hospital, the State Health Laboratories and the Veterans Home) . . . as well as licensed health care providers at all other state facilities.” Vaccinations for covered healthcare workers must be completed by October 1. There is an exemption for medical reasons, but not for religious reasons. 

Thereafter, on September 22, officials announced a new enforcement strategy for the vaccination requirement for healthcare workers. While health care workers are subject to enforcement action if they are unvaccinated by the deadline, “[i]f there is a risk to quality of care and an unvaccinated worker must continue to work beyond October 1 to mitigate that risk, the employer has 30 days to ensure that role is fulfilled by a fully vaccinated healthcare worker.” The press release notes that further information about these requirements, “including information on deadlines for the submission of data and COVID-19 Vaccination Corrective Action Plans, will be shared directly with healthcare leadership across Rhode Island in the coming days. Plans will be due on October 1.”

(no OSHA-approved state plan)

9/22/21

South Carolina

No requirement

NOTE: At least one South Carolina locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

South Carolina joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

11/5/21

South Dakota

No requirement

(no OSHA-approved state plan)

 

Tennessee

No requirement

Tennessee joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

11/12/21

Texas

No requirement

(no OSHA-approved state plan)

 

Utah

No requirement

Utah joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

11/5/21

Vermont

As reported in news outlets, further discussed here, the governor announced that state employees who work with vulnerable populations – such as staff at correctional facilities, the veterans’ home, and a psychiatric hospital – must either be fully vaccinated or face regular testing or some other sort of “exit ramp.”

In addition, on September 8, the governor announced that state officials “have now notified the State Employees Union that, effective September 15th, all State of Vermont executive branch employees will be required to attest that they’re vaccinated, or be subject to at least weekly testing and mandatory masking at work.”

The Vermont Department of Labor announced that it is in the process of reviewing the ETS and will provide further guidance for employers when it becomes available.

11/4/21

Virginia

Per the governor’s announcement, and Executive Directive No. 18, “Virginia will require its state workers to show proof that they are fully vaccinated or be tested for COVID-19 every week. This policy . . . will go into effect on September 1.”

NOTE: At least one Virginia locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

The Department of Labor and Industry noted at this site that officials are in the process of reviewing the ETS.

11/4/21

Washington

Per the governor's announcement, and Proclamation 21-14, the state adopted “a requirement for most state workers, and on-site contractors and volunteers to be vaccinated against COVID-19 as a condition of employment. State employees and workers in private health care and long-term care settings will have until October 18 to be fully vaccinated.” Proclamation 21-14.1 expands the prior order to include all employees, on-site contractors and on-site volunteers at all public and private K-12 schools, public and private 2- and 4-year institutions of higher education, and early learning and child care programs serving children from multiple households. Proclamation 20-12.5, released August 27, further refines requirements for higher education staff, faculty, contractors, students, and volunteers. 

The governor released these FAQs, which add that the vaccination proclamation applies to “employees in private sector health care and in long term care settings including but not limited to nursing homes, adult family homes, assisted living, enhanced services facilities, RTFs, and other treatment facilities.” Those FAQs were updated in early September 2021.

The governor also announced that a COVID vaccine will be required for employees working in K-12, most childcare and early learning, and higher education, K -12 educators, school staff, coaches, bus drivers, school volunteers and others working in school facilities.  They will  have until October 18 to be fully vaccinated as a condition of employment; there will be no test-out option. The requirement includes public, private and charter schools. Unions may bargain with school districts to negotiate time off to receive the vaccine or recover from symptoms of the vaccine. There are limited exceptions under law that employees may apply for (e.g., legitimate medical reasons and sincerely held religious beliefs). Individuals who refuse to get vaccinated will be subject to dismissal. See also: COVID-19 Vaccination Requirement for K-12 School Employees: FAQs (most recently updated on September 3).

On September 8, the state released updated COVID-19 Vaccine Requirement FAQs for Child Care, Early Learning, and Youth Development Providers.

On September 27, the governor announced the release of an amended proclamation, Proclamation 21-14.2, which extends the aforementioned vaccine requirement for state agencies to also "include on-site contractors who contract with the Office of the Attorney General, the Office of the Commissioner of Public Lands and the Department of Natural Resources, the Office of Insurance Commissioner, the Office of the Lieutenant Governor and the Office of Superintendent of Public Instruction."

On November 24, the governor announced the release of an amended proclamation, Proclamation 21-14.3, which amends the vaccination requirements to address potential life-threatening circumstances in “24/7 facilities” (i.e., facilities that provide care to individuals, and include, but are not limited to, acute care, long-term care, corrections, rehabilitation and behavioral health in-patient facilities). For example, and among other things, the amendment allows such facilities to use the services of contractors whose full vaccination status has not been verified in very narrow and limited circumstances (e.g., emergent events or conditions that are unanticipated, discrete, temporary, and likely to result in death or serious bodily harm if the contractors’ prompt actions are not taken). 

A series of FAQs about the various requirements can be found here.

NOTE: Some Washington localities may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

 

11/24/21

West Virginia

No requirement

(no OSHA-approved state plan)

 

Wisconsin

On September 14, the state Department of Administration announced a new weekly testing requirement for all executive branch employees, interns, and contractors, effective October 18.  The requirement will apply to all employees who have either not submitted their vaccination status or reported their status as not fully vaccinated. More information, including FAQs, can be found here.

NOTE: At least one Wisconsin locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.

(no OSHA-approved state plan)

9/14/21

Wyoming

No requirement

Wyoming joined a multi-state lawsuit on 11/5/21, challenging the OSHA ETS.

11/5/21

Because the COVID-19 situation is dynamic, employers should consult with counsel for the latest developments and updated general and industry-specific guidance.

 

 


See Footnotes

This list of states that have taken action to curtail vaccination programs does not cover state measures directed at public sector employers (state and local entities or agencies, etc.).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.