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The U.S. Occupational Safety and Health Administration (OSHA) has answered a question that has been troubling employers since the pace of vaccinations started to accelerate: when must an employer record an adverse reaction to a COVID-19 vaccine on its OSHA 300 Logs? In a new series of answers to its COVID-19 frequently asked questions (FAQs) issued on April 20, 2021, OSHA states that the answer turns on whether the vaccine is required or recommended by the employer. The new guidance makes clear that while adverse reactions to required and recommended vaccinations may be recordable, “OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time.” As always, the devil is somewhat in the details.

Recordability of Adverse Reactions: Is the Vaccine “Voluntary”?

OSHA’s new guidance begins by pointing out that an adverse reaction to a vaccine may be recordable if it is “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 met. OSHA then addresses when a vaccine is “work-related” as follows:

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.

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?

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 affect their performance rating or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this 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 employers’ other responsibilities under OSHA’s recordkeeping regulations or any of OSHA’s interpretations of those regulations.

Finally, note that this answer applies to a 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 offer 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.

When Is the Vaccine “Voluntary”?

OSHA draws somewhat of a bright-line rule by stating that adverse reactions are recordable when the employer mandates vaccines. The issue becomes a bit murkier when determining whether a vaccine is “voluntary.” The new compliance guidance states, “an employee’s choice to accept or reject the vaccine cannot affect [his or her] performance rating or professional advancement,” and that an “employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.”

Employers are using a variety of incentives to encourage vaccinations. For example, some employers are offering financial incentives, the opportunity to enter raffles to win prizes, or paid time off to receive the vaccine and recover from any adverse reactions. Some employers are also wrestling with the possibility that customers may demand vaccinated workers. For example, some construction employers are beginning to report that customers are not allowing unvaccinated workers to work at particular job sites. The question is whether vaccinations under these circumstances are “voluntary.”

An employee who refuses a vaccine and misses a payment or opportunity to win a prize may have arguably suffered “repercussions.” Similarly, even though the employer may not take steps to remedy the situation, the “professional advancement” of an unvaccinated employee who is not permitted to work at a particular customer job site may be affected. Unfortunately, OSHA’s new guidance does not address these specific types of scenarios and it is not entirely clear what position OSHA would take in an enforcement context.

Employers may want to make it clear in communications to employees whether COVID-19 vaccines are required or are merely encouraged. Where vaccines are voluntary, employers may want to make that clear in their communications to employees. Employers may also consider the circumstances in which OSHA will investigate an employer’s recordkeeping practices. OSHA compliance safety and health officers typically ask for an establishment’s OSHA 300 Logs during an inspection. If an employer’s vaccination program is voluntary, an employer may not have any entries resulting from adverse reactions. Under those circumstances, OSHA will have to ask the employer about the vaccination program and whether any employee suffered an adverse reaction. Employees may be more likely to make a complaint to OSHA about issues relating to the OSHA 300 Logs when they have been denied time off for an illness that they consider to be work-related, which means post-vaccination paid time off may be helpful.

Additionally employers may recall that OSHA has only six months from the time an entry should have been made on the OSHA 300 Logs to issue a citation. This six-month limitation period was the primary issue in the D.C. Circuit’s decision in AKM LLC dba Volks Constructors v. Secretary of Labor. You can read more about the Volks decision in our three-part series on this issue.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.


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