by Christine Self
As COVID-19 vaccines become wore widely available and workplaces return to more in-person, pre-pandemic environments, numerous questions have arisen about employer requirements related to vaccines. The Occupational Safety and Health Administration (“OSHA”) recently addressed one issue, whether employers must record/report adverse COVID-19 vaccine reactions, through FAQs it released on April 20, 2021. Generally, employers are required to record “reportable injuries and illnesses that occur in the workplace” on the OSHA 300 log and many employers questioned whether adverse COVID-19 vaccine reactions fit this requirement.
According to OSHA’s new FAQs, an adverse COVID-19 vaccine reaction is recordable if it is:
(1) work-related,
(2) a new case, and
(3) meets one or more of the general recording criteria in 29 C.F.R. 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).
OSHA states that if the vaccine is required by the employer, any adverse reaction is work-related, satisfying the first criteria for recording. If the vaccine is required, if it is a new case under 29 C.F.R 1904.6 and meets one or more of the general criteria in 29 C.F.R. 1904.7, it is recordable.
Many employers are not requiring vaccines, but are recommending them. OSHA states that adverse reactions to recommended vaccines may be recordable. However, OSHA is exercising its discretion to only require the recording of adverse effects to required vaccines at this time. OSHA elaborates on the term voluntary in relation to the COVID-19 vaccine, stating that in order for its discretion to apply, the vaccine must be truly voluntary. An employee’s choice to either accept or reject the vaccine cannot affect their performance rating or professional advancement, and the employee cannot suffer any repercussions for choosing not to receive the vaccine. If the employee is not free to choose whether or not to receive it without fearing some adverse action by the employer, the vaccine is considered to be required. Although some employers are offering the vaccine at work, if an employer is arranging for employees to receive it offsite, or offering it as part of a voluntary health and wellness plan, OSHA states that the method by which employees receive it does not matter in determining whether it is voluntary.
Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.
Christine Self practices in the areas of education law and employment law. She has developed employment policies and advised public employers on labor matters and laws such as the Freedom of Information Act and the Illinois Open Meetings Act. She has experience with collective bargaining and disciplinary investigations into employee misconduct. As a former public school teacher, she is committed to assisting schools navigate the legal requirements of the education environment so school leaders and educators can provide the best educational opportunities for students.