Employers Will Be Liable For Adverse Vaccine Reaction If Required For Employment As OSHA Changes Guidelines

In the ever-changing world we live in, the US Occupational Safety and Health Administration (OSHA) has issued new guidelines on when an employer must record any adverse reaction from a COVID-19 vaccine on its OSHA 300 Logs.

The new guidance clarifies that while adverse reactions to the vaccination may be recordable, whether employers require or recommend that their employees receive the jab is the determining factor in recording it in their OSHA logs.

What is the difference between a required versus a recommended vaccine?

If an employee must receive the freshly minted vaccine, meaning they will no longer be employable if they don’t get one, this is considered a mandatory vaccine. OSHA is demanding that any adverse reaction in these cases be recorded in the logs.

It must be “work-related,” a “new case” (as opposed to a condition resulting from a previous work-related illness), and one of the recording criteria—such as days away from work—is also met.

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.

These records are a big deal because employers could be subject to payout workman’s compensation if anyone who receives the mandatory vaccine has an adverse reaction to it.

From the guidelines:

“If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?

If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. 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.”

Nearly every other situation will fall under the “recommended” category, as it is no longer mandatory for the position but a choice on behalf of the employee. To be fully considered a “recommended” vaccine, there must be no repercussions for the employee under any circumstances.

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.

This means an employer does NOT need to record adverse effects from COVID-19 vaccines that they “recommend” but do not require.

Note that for this discretion to apply, the vaccine must be genuinely voluntary. For example, an employee’s choice to accept or reject the vaccine cannot affect their performance rating or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.

Suppose employees cannot freely choose whether or not to receive the vaccine without fearing adverse action from their employer. In that case, the vaccine is not merely “recommended,” and employers should consult the FAQ regarding COVID-19 vaccines that are a condition of employment.

The new guidelines are in addition to current OSHA regulations and guidelines, and employers are still responsible for maintaining the records to all other standards.


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