J. Fielding Douthat Jr.

J. Fielding Douthat Jr.
Of Counsel

Leah M. Stiegler

Leah M. Stiegler
Associate

Update May 25, 2021: OSHA revised its FAQs to indicate it will not enforce the recording requirements for COVID-19 vaccine side effects through at least May 2022. We will keep you updated with any new developments.

On April 20, 2021, the Occupational Safety and Health Administration (OSHA) released Frequently Asked Questions (FAQs) regarding COVID-19 vaccines in the workplace. The FAQs state that employers who require employees to obtain a COVID-19 vaccine before returning to work may also be required to record any adverse reaction to the vaccine on their OSHA recordkeeping logs.

When must employers record an adverse reaction?

Employers must record an adverse reaction to the COVID-19 vaccine if the reaction is:

  • work-related
  • a new case
  • meets one or more of the general recording criteria in 29 CFR § 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid)

An adverse reaction to the COVID-19 vaccine is considered work-related if the employer required its employees to be vaccinated as a condition of employment (i.e., for work-related reasons). The adverse reaction is recordable if it is a new case under 29 CFR § 1904.6 and meets one or more of the general recording criteria in 29 CFR § 1904.7.

What about employers who don’t require the vaccine?

Generally, employers who do not require employees to obtain a COVID-19 vaccine are not required to record an adverse reaction on their OSHA recordkeeping logs. OSHA exercised its enforcement discretion to require employers to record only adverse effects to mandatory vaccines.

When is a vaccine truly voluntary?

A vaccine is truly voluntary when an employee’s choice to accept or reject the vaccine does not affect his or her performance rating or professional advancement (i.e., there are no repercussions for refusal). This is true even if the employer facilitates (without requiring) vaccinations (e.g., setting up onsite clinics, registering employees with the local health department).

On the other hand, if employees have reason to fear they will be subject to an adverse action if they decline a vaccine, OSHA will not consider the vaccine as merely “recommended” and any adverse action may be considered work-related.

There are many nuances for employers to consider when it comes to COVID-19 vaccinations and employees, such as accommodations, incentives, and the fact that the COVID-19 vaccines have been approved under an Emergency Use Authorization. However, the concept of vaccine incentives and requirements is not novel in the workplace. Employers should not hesitate to implement planned initiatives but must be aware of all legal obligations. The Woods Rogers Labor & Employment attorneys are always here to help.