The COVID-19 Vaccination – Testing Mandate Is Not Completely Dead


On January 13, 2022, the Supreme Court prohibited OSHA’s enforcement of its nationwide
emergency vaccination and testing standard declaring the scope of the regulation beyond
OSHA’s statutory authority. On January 25, OSHA conceded the point and withdrew the
standard. But even as OSHA withdrew the standard, OSHA made clear that employers are not
relieved of their obligation to protect employees from the risks of COVID-19 in the workplace.

After the Supreme Court declared the vaccination and testing standard unenforceable, OSHA
emphasized that it would use its existing authority under the General Duty Clause of the
Occupational Safety and Health Act and its COVID-19 National Emphasis Program to compel
employers to act.

In many respects, the result is more onerous for employers. Unlike the withdrawn standard, the
General Duty Clause is not limited to employers with 100 or more employees. Nor does the
General Duty Clause itemize the steps an employer may take to protect itself from citation and
penalty. Instead, now each employer must assess and address the risks of COVID-19 to its
workforce and workplace on a case-by-case basis.

What Is The General Duty Clause?

OSHA is equipped with two tools by which to lessen workplace hazards. First, OSHA is
empowered to issue mandatory workplace safety standards; OSHA tried and failed to establish a
vaccination and testing standard for COVID-19. Second, in the absence of a standard, OSHA
may compel action through what is commonly called the General Duty Clause which requires
that employers provide “employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious physical harm to its employees

To prove a violation of the General Duty Clause, OSHA must show (1) a condition in the
workplace presents a hazard to employees; (2) the hazard is recognized by the employer or the
industry; (3) the hazard is likely to cause death or serious injury; and (4) there is a feasible means
to eliminate or reduce the hazard.

COVID-19 certainly presents a recognized hazard for some workers and workplaces. Even while
rejecting OSHA’s one-size-fits-all emergency standard, the Supreme Court advised that a more
limited standard likely would survive judicial review, stating: “Where the virus poses a special
danger because of the particular features of an employee’s job or workplace, targeted regulations
are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers
who work with the COVID-19 virus. So too could OSHA regulate risks associated with working
in particularly crowded or cramped environments.”

As for the final element of proof, there is ample scientific evidence that vaccinations, masks, and
social distancing are feasible means to reduce the risks from COVID-19.

Thus, all the elements necessary to trigger the General Duty Clause are present at least for
employees and workplaces where the danger from the virus differs in degree and kind from the
danger faced by all of us outside the workplace.

The question employers now must ask is: Are our employees at greater risk from the virus than
the general public because of their work or the conditions of their workplace? Is the cashier at
the grocery store at greater risk? Is the teacher in a crowded classroom at greater risk? Is the
usher at the theater at greater risk? If so, the General Duty Clause compels the employer to take
action to eliminate the hazard to the extent feasible, whether by vaccinations, masks, social
distancing, or other measures.

What Is OSHA’S COVID-19 National Emphasis Program

On July 7, 2021, OSHA published a directive implementing a National Emphasis Program to
enhance the protections from COVID-19 for employees who are involved in high-hazard
industries or work tasks.

The findings of the directive not only are unchanged by the recent Supreme Court ruling, but
may well be more important and serve to put employers on notice that OSHA, with the Supreme
Court’s blessing, will pay special attention to the COVID-19 protections provided to certain
categories of employees identified in the directive.

Among the industries targeted by the directive are most health care and residential care services,
meat and poultry processing, supermarket and grocery stores, discount department stores,
restaurants, and warehousing facilities.

Importantly, the directive does not limit the scope of the General Duty Clause. Employers in
industries targeted by the directive should expect OSHA to examine their COVID-19 protections.
All other employers should be prepared to provide documentation of their COVID-19 protections
to OSHA in the event of an accident, a scheduled inspection, or an employee complaint.

This summary is not intended to contain legal advice or to be an exhaustive review. Employers
with questions on how to craft and implement a compliant policy – and how to handle exemption
and accommodation requests – should contact Erica L. Litovitz, Esq., John J. Matteo, Esq., or
another member of Jackson & Campbell’s Employment Law Practice Group for more