There has been considerable fog shrouding employers that encourage or require employee vaccinations against the coronavirus. There is considerable ambiguity regarding legal requirements, potential liabilities, and responsibilities. Government directives, FAQs, and recommendations have often increased uncertainty for employers. In this environment, the Occupational Safety and Health Administration (OSHA) recently reduced employer responsibility by saying they do not have to record COVID-19 vaccine reactions.
Conflict with OSHA Requirements
Current OSHA regulation requires employers to record certain work-related injuries and illnesses on the OSHA 300 log. Prior OSHA rulings stated that employers would have to record adverse reactions to COVID-19 vaccines if they require employees to be vaccinated but would not require recording vaccination reactions if the employer recommends but does not require vaccination for the employer to participate in the workplace.
One of the triggers for recording a work-related illness or injury is “days away from work”. In earlier statements, OSHA did not make an exception for days away from work due to an adverse reaction to a covid vaccination. This placed the employer in the uncomfortable position of having to record reactions if employees were granted flexible time off to recover from a vaccination.
OSHA Position – May 2021
OSHA corrected this conflict with the following statement released this month on their FAQ (COVID-19 – Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov)):
“DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.”
Given the overlapping nature of Federal, State, and Local regulation, employers need to take care that their programs and actions comply with all jurisdictions that they operate under. Inquiries regarding vaccination must achieve proof of yes or end with no. An employer should not dive deeper into a no response and wander into territory that could be challenged as leading to discriminatory actions in any manner (examples: pregnancy, pre-existing health condition, disability, religious belief, or gender issue).