A Capehart Scatchard Blog

OSHA-What’s Next On COVID-19 Vaccinations?

By on January 31, 2022 in OSHA with 0 Comments

We all know that thanks to the United States Supreme Court’s recent decision invalidating the COVID-19 vaccination mandate for large employers previously issued by the Occupational Health and Safety Administration (“OSHA”) that employers with 100 or more employees no longer need to require employee vaccinations. But what is next for OSHA in this area in addressing COVID-19 workplace issues?

For one thing, OSHA has not completely given up on having a vaccination mandate. The agency is still contemplating issuing such a requirement through its usual rulemaking process. This time around, OSHA tried to short-circuit that process by using its emergency rulemaking authority that allows it to avoid the usual lengthy rulemaking process for significant workplace hazards that require immediate attention. But would that prove more successful and pass legal scrutiny? Hard to tell, but the Supreme Court decision poses a tough obstacle since the majority of the Court concluded that Congress did not grant OSHA authority to issue broad requirements to address issues that are more akin to public health matters and not direct workplace hazards.

Another available tactic for OSHA left open by the court’s decision is to issue a vaccination mandate limited to very specific industries where COVID-19 could clearly be shown to pose more of a particular workplace threat, such as where employees work closely in proximity to one another, such as factory and industrial settings. We know meatpacking plants were a festering ground for COVID-19 infections. One could see OSHA issuing rules there in such industries to increase employee vaccination rates. This is one possible area where even the Court’s decision itself recognized OSHA’s authority to act, so maybe the agency moves forward to accept that invitation to regulate workplaces there.

Finally, OSHA still has its investigatory authority to indirectly force employers to increase steps in the workplace to promote safety, including maybe even possible vaccinations. The OSHA law’s General Duties Clause requires employers to provide a safe workplace for its employees, and OSHA could invoke this legal duty to expect employers to actively promote workplace COVID-19 safety by taking steps such as requiring masks, testing, and even vaccination requirements given the particular workplace circumstances. By crafting specific requirements for particular workplaces, OSHA could claim that it is meeting the Court’s directive of tailoring specific relief to the precise workplace and not blanketly regulating a general public health issue.

So, the moral of this story is stay tuned. The pandemic isn’t over, and neither will be OSHA’s efforts to find a way to promote broader vaccination rates in the country’s workforce to facilitate greater workplace safety.

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About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.

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