The Details of OSHA’s Vaccination Rule for Private Employees Suggest Several Ways It Could Be Vulnerable to Legal Challenges

Employers who adopt a “mandatory vaccination policy” can comply with the ETS even if some employees are not actually vaccinated. OSHA allows the following exceptions: “those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.” It seems those unvaccinated employees don’t have to wear masks or be tested each week, since those safeguards apply only to businesses that require employees to choose between vaccination and testing plus masking.

If so, a legal challenge could argue, OSHA is implicitly conceding that testing and masking of unvaccinated employees is not truly “necessary.” In the example OSHA offers, 5 percent of a company’s employees “are entitled to reasonable accommodation.” In terms of COVID-19 risk, that situation is indistinguishable from a workplace where 5 percent of employees simply choose not to be vaccinated.

The vaccination exceptions allowed by OSHA do not include people who are resistant to COVID-19 because they were previously infected. While there is considerable debate about how the protection offered by naturally acquired immunity compares to the protection offered by vaccination, the lack of an exception for people who have recovered from COVID-19 could be another basis for questioning the necessity of OSHA’s requirements.

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