Covid Vaccination and OSHA - An Implementation Overview

The Occupational and Safety and Health Administration’s (“OSHA”) proposed final rule to implement a Covid vaccination mandate is entering its administrative review phase before it becomes final.  This article will focus on potential issues OSHA will face as it implements this new rule.

An OSHA Rule Is Not a General Law As Passed By Congress Or Any Legislature And, As Such, For HR Professionals And General Counsel, Does Not Directly Mesh With Existing Law Or Policies 

An OSHA rule is a workplace safety standard, enforceable by citations issued by OSHA inspectors.  This means that the regular process for imposing fines and administrative hearings within the Agency applies.  However, this process only imposes potential liability on employers who do not implement a compliance policy.

This is one reason why legal and legislative actions at the local and state level matter as those tools can be defenses to entities charged with OSHA compliance violations. For example, in air transport,   American Airlines Group Inc. and Southwest Airlines Co. have announced they will  require that employees be vaccinated against Covid-19, defying an order from the Texas governor blocking such actions. Initially, however, a federal judge barred United Airlines Holdings Inc. from placing unvaccinated workers with a religious or medical exemption on unpaid leave, as part of its mandatory Covid-19 vaccination program for employees.  In the end, the policy was implemented through a judicially supervised agreement between the parties. The initial case was filed as a proposed class action on behalf of 2,000 of United’s 67,000 employees.

Human Resource Complications

The most complicated scenarios are those that arise on the human resources side of implementation.  An interesting variation of how these cases are evolving is at Los Alamos National Laboratory.  In that case, plaintiffs are asserting constitutional claims and alleging that the vaccine mandate policy is engendering a hostile work environment deriving from threats by and between workers and staff. This claim is noteworthy because it follows that same pattern as actions under the Americans with Disability Act, where employers can incur liability for alleged prejudicial actions as between co-workers if management allows an environment that is hostile to a disability to evolve. This matters where an exemption is sought (or permitted for medical reasons), since that might afford the affected individual protected status under the ADA.

Labor Relations Issues

It is certain the OSHA rule will contain potential carve out provisions for workforces covered by labor contracts. These employers face a different set of risks.

Is Bargaining Required?

Safety rules and workplace standards are not commonly mandatory subjects of bargaining and it is likely that vaccine compliance policies can be unilaterally implemented. This is additionally important as an employer’s obligation to maintain a safe workplace is a basic management right not ordinarily subject to mandatory bargaining. Additionally, new territory will exist as to the role of labor contract grievance processes. 

However, to the extent a policy affects economic conditions of work - pay and benefits - those issues are subject to bargaining. Further, it remains to be seen if such bargaining can address exemptions in the standard or mandates as  to in person or remote work.

In the same ways, nonunion employers will have to address laws of general application to their workforce 

Which Modes are Covered and By Whom?

OSHA’s jurisdictional coverage is statutorily defined by jurisdiction. This means that for components of the modes within the jurisdiction of the Surface Standards Board, the Federal Aviation Administration, or the National Labor Relations Board, each agency will act to adopt (and potentially modify) what OSHA does.

Beyond that, at the state level, state OSHA agencies operate as delegated semi-autonomous entities.  This would normally entail a 30-day time period to accept and implement a federal regulation or propose variations. So called “state plan” states are required to adopt occupational safety and health standards “at least as effective” as Federal OSHA standards, in accordance with Section 18 of the Occupational Safety and Health Act of 1970 (29 USC § 667(c)(2)).

A similar jurisdictional set of issues will arise as to labor relations rights and unfair labor practices enforcement under the National Labor Relations Act and the Railway Labor Act.   For example, an OSHA rule does not automatically create or mandate joint jurisdiction or sharing though those agencies can agree to implement such procedures. 


The ensuing period during which the vaccine mandate regulation is formally presented is likely to be a tumultuous one. We will follow these matters closely for our next report. 

Share this post:

Comments on "Covid Vaccination and OSHA - An Implementation Overview "

Comments 0-0 of 0

Please login to comment