New OSHA Guidance Regarding the COVID-19 Vaccine
The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently released three new FAQs for employers that have decided to either recommend or require employees to receive the COVID-19 vaccine.
Baird Holm previously reported that employers can require employees to be vaccinated as a condition of employment, but they should carefully consider several factors before making such a decision. OSHA’s new guidance highlights additional factors that employers should similarly consider.
For employers that are subject to OSHA’s jurisdiction and its recordkeeping requirements, the key takeaways from OSHA’s FAQs include:
In general, an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (g., days away from work, restricted work or transfer to another job, or medical treatment beyond first aid).
If an employer requires its employees to be vaccinated as a condition of employment (e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is considered “work-related.”
If an employer merely recommends (but does not require) that its employees be vaccinated, then an adverse reaction to the COVID-19 vaccine is not considered to be “work-related” and does not need to be recorded on the employer’s OSHA 300 log. This is the case even if the employer made the COVID-19 vaccine voluntarily available to employees at work or at an offsite location.
OSHA concludes its guidance by explaining its use of the FAQs is merely to “provide clarity to the public regarding OSHA’s expectations as to the recording of adverse effects during the health emergency.” This guidance does not change employers’ other responsibilities under OSHA’s recordkeeping regulations or any of OSHA’s interpretations of those regulations.