In particular, on April 20, 2021, OSHA updated its FAQs related to the COVID-19 pandemic informing employers that, if they mandate an employee receive a COVID-19 vaccine as a condition of employment and the employee has an adverse reaction to the vaccine, the reaction must be recorded on the employer’s OSHA 300 log when the reaction is: work-related, a new case and meets one or more of the general recording criteria set forth in 29 C.F.R. 1904.7. The following meet the criteria under Section 1904.7:
On the other hand, OSHA made it clear that it is exercising its enforcement discretion to not mandate reporting if an employee experiences a reaction to the vaccine, provided the vaccine merely was recommended by the employer and therefore, truly was voluntary. According to OSHA, a vaccine is truly voluntary when an employee’s choice to receive or reject the vaccine has no negative impact on the employee’s performance rating or professional advancement. In other words, the employee must not suffer “any repercussions from” her/his choice related to the vaccine. OSHA offered the following scenarios as examples of when employers merely recommend the vaccine: the employer makes the vaccine available to employees at work or at an offsite location and/or it is in connection with a voluntary health and wellness program at the workplace or otherwise.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Lee Moylan is chair of the labor and employment practice at Klehr Harrison.