Answers to the Most Common COVID-19 Coronavirus Questions

Private employers with 100 or more employees are required to implement a mandatory COVID-19 vaccination policy, with or without an option allowing employees to instead undergo weekly COVID-19 testing. All employees, absent approved medical and religious accommodations, must be fully vaccinated (or within their two-week period after their final dose), or begin weekly testing as of Jan. 4, 2022. Additionally, beginning Dec. 6, 2021 all unvaccinated employees must wear a face covering at the workplace.

Employees who work entirely remotely or exclusively outdoors can be exempt from the policy; however, these employees must be counted when determining if an employer has 100 or more employees.

Employers must also keep a roster of each employee’s vaccination status and report any COVID-19 hospitalizations or deaths to OSHA.

SHRM members have exclusive access to our How to Comply with OSHA’s COVID-19 Vaccination Emergency Temporary Standard guide, offering an overview and step-by-step instructions on how to comply.

All private employers with 100 or more total employees at any time the ETS is in effect (i.e., from Nov. 5, 2021 until the ETS expires) are subject to the standard. The 100-employee threshold is based on a companywide headcount, rather than the number of employees at a particular worksite.

Employers should count all employees individually, whether they are full time, part time or working on a temporary basis. Independent contractors and leased employees (where the client employer is not the employer of record) are not counted.

Employees who work entirely remotely or exclusively outside are not subject to the vaccination or testing requirements of the standard; however, these employees must be counted when determining if an employer has 100 or more employees.

When determining employee count for a company with multiple entities, the ETS states that “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 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.” As this suggests, separate EINs will not be a deciding factor; rather, a fuller analysis will need to be made, and if safety matters are centrally controlled for all or some entities, those under that control must be counted together as a single employer.

Employers must provide up to four hours of paid leave at the employee’s regular rate of pay for each primary dose of a COVID-19 vaccine an employee receives during normal work hours. This paid leave is in addition to any other leave that the employee has accrued, such as sick leave or vacation leave. If an employee needs more than four hours to receive a COVID-19 vaccination, the employee may use regular paid leave for any time off in excess of four hours.

When taking leave to recover from any side effects after receiving a vaccine, employers may require an employee to use available paid sick leave (or PTO when different types of leave aren’t separated); employers may not require the use of paid vacation leave.

If an employee does not have any paid leave available, the employer must provide a reasonable amount of additional paid leave. The employer may not consider the leave an advance of leave or require an employee to go into a negative leave balance.

The ETS requires covered employers to provide up to four hours of paid leave per dose of the primary vaccine. Booster shots are not covered. This paid leave is in addition to any other leave that the employee has accrued, such as sick leave or vacation leave. If an employee needs more than four hours to receive a dose of a COVID-19 vaccine, the employee may use regular paid leave for any time off in excess of four hours.

Additionally, a reasonable amount of paid sick leave must also be provided for employees to recover from any side effects from each dose of a primary vaccination. OSHA has indicated that providing up to two days of paid sick leave per primary vaccination dose would be considered a reasonable amount of leave.

For time off to recover from side effects, employers may require an employee to use available paid sick leave (or PTO when different types of leave aren’t separated); employers may not require the use of paid vacation leave.

If an employee does not have any paid leave available, the employer must provide a reasonable amount of additional paid leave. The employer may not consider the leave an advance of leave or require an employee to go into a negative leave balance.

Covered employers must provide all employees with information they can understand about the requirements of the ETS and the workplace policies and procedures established to implement the ETS; vaccine efficacy, safety and the benefits of being vaccinated by providing the Centers for Disease Control and Prevention (CDC) document Key Things to Know About COVID-19 Vaccines; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Not all, but many. On Nov. 5, 2021, CMS published an interim rule in the Federal Register establishing COVID-19 vaccination requirements that most Medicare- and Medicaid-certified providers and suppliers must meet to participate in the Medicare and Medicaid programs. This rule is open to a 30-day comment period, but employers should expect the rule to go into effect.

Covered employers must establish a process or policy to meet the vaccination requirements over two phases:

• For Phase 1, by Dec. 6, 2021, employees must have received—at a minimum—the first dose of a primary series or a single dose COVID-19 vaccine.
• For Phase 2, by Jan. 4, 2022, employees must complete the primary vaccination series (except for those who have been granted exemptions from the COVID-19 vaccine or those staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by the Centers for Disease Control and Prevention).

Full-time remote workers are excluded from the requirements.

CMS has provided FAQs to help employers comply with the requirements. See CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule.

CMS also has a slide presentation on the rule that may be helpful to review. See Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule with Comment, and a webcast, Healthcare COVID-19 Health Care Staff Vaccination.

The CMS rule will be considered primary for covered employers and takes priority over the other rules.

There are rare situations where the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors or the OSHA COVID-19 Healthcare ETS may also apply to staff who are not subject to the vaccination requirements outlined in the CMS rule. Employers with employees outside the scope of the CMS rule will need to look to these rules for compliance.

The OSHA COVID-19 ETS for private employers with 100 or more employees applies to employers that are not subject to the federal contractor or CMS vaccination requirements.

No, the CMS rule does not allow for a weekly testing option. Additionally, employees who are granted a reasonable accommodation making them exempt from vaccination are not required to undergo weekly testing at this time, but an employer can make testing part of an accommodation.

The ETS is aimed at protecting workers facing the highest COVID-19 hazards—those working in health care settings where suspected or confirmed COVID-19 patients are treated. This includes employees in hospitals, nursing homes and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. For more information, see Is your workplace covered by the COVID-19 Healthcare ETS?

Yes. The health care ETS does not apply to:

• First aid performed by an employee who is not a licensed health care provider.
• Dispensing of prescriptions by pharmacists in retail settings.
• Non-hospital ambulatory care settings where all nonemployees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings.
• Well-defined hospital ambulatory care settings where all employees are fully vaccinated, all nonemployees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings.
• Home health care settings where all employees are fully vaccinated, all nonemployees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present.
• Health care support services not performed in a health care setting (e.g., off-site laundry, off-site medical billing).
• Telehealth services performed outside of a setting where direct patient care occurs.

Yes. While vaccination is not required under the health care ETS, covered employers must provide a reasonable amount of paid time off for employees to receive a COVID-19 vaccine and to recover from any side effects.

Unless an employee is legally entitled to an accommodation, the vaccination requirement will apply to all covered contractor employees—including contractor or subcontractor employees in covered contractor workplaces who are not working on a federal government contract or contract-like instrument. Remote workers are also covered. There is no testing option available.

No. The executive order for federal contractors is considered primary for covered contractors and takes priority over the other rules. If a contractor has employees not covered under the executive order, then the ETS or CMS rule may apply to those employees.

The executive order does not require paid leave; however, OSHA strongly encourages all employers to offer paid leave to employees receiving a COVID-19 vaccine or recovering from side effects of receiving a vaccine.

Covered contractors must require employees to show or provide one of the following documents:

• A copy of 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 or state immunization information system.
• A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering the vaccine.

Covered contractors may allow employees to show or provide a digital copy of their vaccine records, including, for example, a digital photograph, scanned image or PDF of such a record.

An attestation of vaccination by an employee is not an acceptable substitute for documentation of proof of vaccination. Employees who do not have documentation of vaccination should be instructed to contact the vaccination provider or the employee’s state or local health department for assistance in obtaining the required documentation.

The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees applies to employees of the executive branch of the federal government. Employees in the judicial and legislative branches are not covered by the order. The Safer Federal Workforce Taskforce has issued guidance on the vaccination requirement for federal agencies.

Federal employees must be vaccinated as of Nov. 22, 2021.

Agencies can refer to the following templates to develop a form for employees who are seeking an exception based on a medical condition or based on religion. The information on the forms may be used by the agency to help determine whether the employee is entitled to an accommodation.

Per the Safer Federal Workforce FAQs, the following paid leave is required:

Primary Vaccination

Federal agencies must allow employees to use up to four hours of regular duty-time per dose to receive a primary COVID-19 vaccine. This time includes traveling to the vaccination site, receiving a vaccination dose and returning to work.

Agencies should require employees taking longer than four hours to document the reasons for the additional time (e.g., they may need to travel long distances to get the vaccine). If, due to unforeseen circumstances, the employee is unable to obtain the vaccine during regular duty hours, the normal overtime hours of work rules apply.

Post-Vaccination Recovery

An agency should grant up to two workdays of administrative leave if an employee has an adverse reaction to a COVID-19 vaccination dose that prevents the employee from working (i.e., no more than two workdays for reactions associated with a single dose).

Booster Shots/Additional Dose for Immunocompromised Employees

Agencies must give employees up to four hours of administrative leave to receive any authorized COVID-19 vaccine booster shot or additional dose for an immunocompromised employee. As booster shots are not required at this time, they cannot be charged to regular duty time. No leave is granted for booster shots received outside of regular duty time.

This paid leave may be applied retroactively to Aug. 12, 2021, for an immunocompromised employee, and to Sept. 22 for those who received a booster shot.

To Accompany a Family Member Receiving a COVID-19 Vaccination

An agency must grant administrative paid leave of up to four hours per dose (and per family member) to employees who accompany any family member who is receiving a COVID-19 vaccination. A family member is an individual who meets the definition of that term in the Office of Personnel Management’s leave regulations (see 5 CFR 630.201). Employees may not be credited with administrative leave or overtime work for time spent outside their tour of duty helping a family member get vaccinated.

Under federal law, employers are permitted to ask employees if they have been vaccinated against COVID-19; however, caution should be taken to avoid soliciting information related to an employee’s medical condition. A simple yes or no response from employees should be sufficient, and employers should instruct employees not to provide additional information about the reason they may not have received the vaccine. The Americans with Disabilities Act (ADA) requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. See Consider These Steps When Asking Employees About Vaccination Status.

Employers covered by OSHA’s ETS on vaccination, the CMS vaccination rule or the federal contractor executive order requiring vaccination must determine their employees’ vaccination status and collect proof of vaccination. The ETS pre-empts (overrides) any state or local laws that do not allow employers to ask employees for their vaccination status and proof of vaccination.

Employers not covered under a vaccination requirement should check their state laws. For example, Montana prohibits employers from requiring employees to disclose their immunization status, possess an immunity passport, or receive vaccines used under an emergency use authorization or undergoing safety trials.

When employers make vaccination a condition of employment (absent medical and religious accommodations), some employees may have general objections to receiving a COVID-19 vaccination and employers need to decide how to proceed in these circumstances. Terminating employees might not be the desired approach, but allowing for a leave of absence, transfer to another position, telework, regular testing or other modifications might be acceptable solutions. See What Employers Can Do If Workers Refuse a COVID-19 Vaccination.

Employers subject to OSHA’s vaccination ETS may allow unvaccinated employees to work from home full time in lieu of vaccination, and employees who only work outdoors may also be exempted if the employer chooses to do so. These employees would not be allowed into an indoor worksite without prior testing and wearing a mask.

Yes. Employers should develop a policy outlining any requirement or recommendation for COVID-19 vaccinations in the workplace. See Vaccination Policy: Mandatory and Vaccination Policy: Voluntary.

Employers subject to federal requirements can use the following:

OSHA ETS Vaccination and Testing Policies

Federal Contractor COVID-19 Vaccination Policy

COVID-19 Vaccination Policy for Health Care Staff

The U.S. government is providing the COVID-19 vaccine free of charge to all people living in the United States, regardless of their immigration or health insurance status. As a vaccine recipient, you cannot be charged for the COVID-19 vaccine.

If the vaccine is mandated by the employer, the employer may be required to pay an employee for time spent getting the vaccine. Under the Fair Labor Standards Act, an employer must cover any work-related expenses for an employee if the cost of the expense would drop the employee below minimum wage. In addition, an employer is obligated to pay an employee for time spent seeking medical attention that is required by the employer and occurs during work hours. The DOL also has FAQs on pay issues.

Additionally, OSHA’s COVID-19 Healthcare Emergency Temporary Standard requires employers to provide reasonable time off and paid leave for vaccinations and vaccine side effects to employees working in health care settings.

The OSHA ETS for private employers with 100 or more employees requires employers to provide up to four hours of paid leave for each primary vaccine dose. Booster shots are not covered. This is in addition to any paid leave an employee has already accrued.

A reasonable amount of paid sick leave (up to two hours) must also be provided for employees to recover from any side effect from each dose of a primary vaccination. Existing paid sick leave can be utilized for this purpose, as can time for a general PTO plan. Stand-alone paid vacation leave may not be used. If an employee has exhausted applicable leave, the employer may not advance leave to create a negative leave bank; rather, additional paid leave must be provided. See OSHA’s ETS Affects Paid Leave for COVID-19 Vaccines or Tests.

Many state laws also require employers to pay for time spent getting the vaccine and recovering from vaccine reactions requiring time off from work.

The Public Readiness and Emergency Preparedness Act (the PREP Act) may provide employers immunity from claims related to side effects of a vaccine or other injury at the employer’s vaccine site if the employer supervises or administers an onsite vaccine program.

In an effort to avoid discouraging vaccination and negatively impacting employer attempts to incentivize the COVID-19 vaccine, current OSHA guidance indicates that employers are not required to record an employee’s side effects from the COVID-19 vaccine on OSHA 300 logs through May 2022.

Yes. Under federal guidance, employers may offer incentives to employees to obtain a COVID-19 vaccination. State and local laws may also come into play and should be reviewed.

The Equal Employment Opportunity Commission (EEOC) has stated that employees who voluntarily receive a vaccination administered by their employer or its agent may be provided an incentive as long as it is not “so substantial as to be coercive.” Since pre-vaccination questions must be asked that could reveal medical disability information, the incentive cannot be so large that employees would feel pressured to divulge protected medical information. The EEOC did not, however, define what the incentive limits might be.

Alternatively, when employees voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer, then, per the EEOC, there are no limitations to the incentive employers may provide.

The OSHA ETS for private employers with 100 or more employees requires employers to give workers up to four hours of paid time off for each vaccine dose, and a reasonable amount of paid sick leave to recover from any side effects of getting vaccinated. This applies to primary vaccinations only, not booster shots.

OSHA strongly encourages employers not covered by the ETS to provide paid time off for employees to receive a COVID-19 vaccine and to recover from any side effects, but there is not a legal requirement under federal law to do so, and employers could apply their normal paid-time-off policies.

When an employee misses work due to a COVID-19-related illness not caused by a vaccine, a company’s normal paid-time-off policies for absences due to illness would apply. Nonexempt employees who do not have paid leave available are not required to be paid for such absences, unless there is a collective bargaining agreement indicating otherwise. If an employer sends a nonexempt employee home because he or she has COVID-19 symptoms, some states’ wage and hour laws may require reporting time pay of a certain number of the employee’s scheduled hours.

Exempt employees who do not have paid leave available may only have their pay docked when full-day absences due to illness occur, and only where a bona fide sick-leave plan exists. See What is a “bona fide” sick leave plan under the FLSA Salary Basis Regulation?

The details of each employer's plan to return will look different, but SHRM has a checklist of 10 key issues for employers to address. See COVID-19 Back-to-Work Checklist.

According to OSHA’s guidance document Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, all employers should engage with workers and their representatives to determine how to implement multilayered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:

1. Facilitate employees getting vaccinated. Employers should grant paid time off for employees to get vaccinated and recover from any side effects.
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19.
3. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. Maintaining physical distancing at the workplace for such workers is an important control to limit the spread of COVID-19. Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time by, for example, implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or Web); or implementing flexible meeting and travel options, for such workers.
4. Provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission and notes that fully vaccinated people may appropriately choose to wear masks in public indoor settings regardless of community level of transmission, particularly if they are at risk or have someone in their household who is at risk or not fully vaccinated.
5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in languages they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace.
6. Suggest or require that unvaccinated customers, visitors or guests wear face coverings in public-facing workplaces such as retail establishments and that all customers, visitors or guests wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring that people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.
7. Maintain ventilation systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated and otherwise at-risk workers in particular.
8. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations.
9. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR part 1904, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: 1) The case is a confirmed case of COVID-19; 2) the case is work-related (as defined by 29 CFR 1904.5); and 3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7; e.g., medical treatment, days away from work).
10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards:Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities.
11. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR part 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 ETS. More information on that standard is available on OSHA's website. Employers are also required by the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

If the practice is applied consistently, an employer may ask an employee to be tested for the virus that causes a COVID-19 infection before allowing the employee to return to the workplace. However, not everyone will have immediate access to testing and employers may want to refer to the CDC guidance on allowing individuals to return to work without requiring a test. Antibody testing, however, is not currently permitted under the ADA, per EEOC guidance.

The CDC’s guidance on this is updated as recommendations change. SeeQuarantine and Isolation.

According to guidance from the EEOC, “Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19.”

State and local laws may differ and should be reviewed.

No. The ADA privacy rules restrict employers from sharing personal health information about an employee. Employers should inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

According to CDC guidance, essential employees who have had close contact with a person diagnosed with COVID-19 may continue to work as long as the employee is asymptomatic and protective measures are taken, such as having the employee wear a mask, screening the employee for temperature and other symptoms, and regularly disinfecting work areas.

As of July 27, 2021, CDC guidance recommends that fully vaccinated people wear a mask in public indoor settings in areas of substantial or high transmission. Additionally, many states and localities continue to enforce mask requirements, and private businesses and workplaces may set their own policies.

Employers should also continue to follow the Occupational Safety and Health Administration (OSHA) guidance for all employers, updated Aug. 13, 2021, which recommends employers continue to protect unvaccinated workers by requiring them to wear masks and encourages employers to require masks for everyone in indoor settings in areas of substantial or high community transmission. Additionally, employers with health care workers now have an actual emergency standard (regulation) to follow.

See What should we consider when relaxing or continuing mask-wearing policies?

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may measure employees' body temperature. As with all medical information, employers must maintain the confidentiality of employee temperatures and other symptoms as required by the ADA. See A Guide to Employee Temperature Checks.

Employers must weigh an employee’s health concerns and legal rights under the OSH Act, the National Labor Relations Act (NLRA) and the ADA with the organization’s business needs. See What to Do When Scared Workers Don’t Report to Work Due to COVID-19.

Some employers have discovered during this crisis that remote work can be a successful arrangement and will consider allowing telework arrangements to continue. However, absent a need to work remotely as a reasonable accommodation under the ADA, employers are not obligated to allow telework. See Work at Home/Telework as a Reasonable Accommodation.

In most cases, no. If the employees were not separated from payroll, documenting the temporary layoff or furlough dates for the personnel file is sufficient. Significant changes, such as a new job title or pay rate, should be documented as well.

No. According to the CDC, “Antibody test results should not be used to determine if someone can return to work.” The EEOC has also released guidance stating, “the ADA at this time does not allow employers to require antibody testing before allowing employees to re-enter the workplace.”