OSHA Shifts Position on Recordability of Adverse Reactions from COVID-19 Vaccines

In a dramatic shift in its enforcement position with respect to the recordability of adverse reactions from COVID-19 vaccines, the Occupational Safety and Health Administration (OSHA) on May 21, 2021, published a new Frequently Asked Question (FAQ) establishing that employers do not need to record adverse reactions from COVID-19 vaccines on their OSHA 300 Logs, at least through May of 2022.  The enforcement position applies regardless of whether an employer requires, recommends, or incentivizes employees to receive the vaccine.

In publishing this FAQ, the Agency simultaneously removed from its website three earlier FAQs, which had distinguished an employer’s obligation to record adverse reactions from the vaccines based upon whether the vaccines were required or just recommended.  OSHA had previously stated in one FAQ that adverse reactions from COVID-19 vaccines that are required by an employer would be considered OSHA-recordable if they met all other recording criteria of the rule.  The Agency then stated that it would use its enforcement discretion not to cite employers that simply recommended COVID-19 vaccines, although the Agency suggested that under certain circumstances, an adverse reaction from a recommended vaccine could be considered OSHA-recordable.  The now-rescinded FAQ related to recommended vaccines stated:

Question:  I do not require my employees to get the COVID-19 vaccine.  However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite.  If an employee has an adverse reaction to the vaccine, am I required to record it?

Answer:  No.  Although adverse reactions to recommended COVID-19 vaccines may be recordable under 29 CFR 1904.4(a) 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, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time.  Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.

Note that for this discretion to apply, the vaccine must be truly voluntary.  For example, an employee’s choice to accept or reject the vaccine cannot suffer any repercussions from their choice.  If employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely “recommended” and employers should consult the above FAQ regarding COVID-19 vaccines that are a condition of employment. 

Note also that the exercise of this discretion is intended only to provide clarity to the public regarding OSHA’s expectations as to the recording of adverse effects during the health emergency; it does not change any of the employer’s other responsibilities under OSHA’s recordkeeping regulations or any of OSHA’s interpretations of those regulations.

Finally, note that this answer applies to the variety of scenarios where employers recommend, but do not require vaccines, including where the employer makes the COVID-19 vaccine available to employees at work, where the employer makes arrangements for employees to receive the vaccine at an offsite location (e.g., pharmacy, hospital, local health department, etc.), and where the employer offers the vaccine as part of a voluntary health and wellness program at my workplace.  In other words, the method by which employees might receive a recommended vaccine does not matter for the sake of this question.

Several stakeholders had raised concerns that the previously issued FAQs caused confusion among the regulated community and could ultimately result in discouraging employers to even recommend to employees that they get vaccinated.  The Agency’s shift in position seems to recognize the potential for this, as the Agency notes in the FAQ that “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.”

OSHA’s new position will be welcome news for employers as it establishes a clear enforcement position that will remain in effect for at least another year.  And it clarifies that irrespective of whether an employer requires, encourages, or incentivizes employees to get the COVID-19 vaccine, adverse reactions will not be considered OSHA-recordable injuries or illnesses.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.