On April 20, 2021, the federal Occupational Safety and Health Administration (OSHA) released new guidance for employers who require employees to obtain COVID-19 vaccinations. We previously reported that employers may require employees to be vaccinated; however, certain employer obligations arise (including ADA and Title VII accommodations) once the vaccine is mandated as a condition of employment or continued employment. The OSHA guidance adds to employers' obligations if vaccines are mandatory.
The new OSHA guidance provides that if an employer requires its employees to be vaccinated, OSHA considers any adverse reactions to the vaccine to be "work-related." Employers who require COVID-19 vaccines must notify OSHA within 24 hours of an employee's inpatient hospitalization, or within eight hours of an employee's death, resulting from an adverse reaction.
For employers subject to OSHA's recordkeeping requirements, if the adverse reaction meets other general recording criteria (such as days away from work, limited work, transfer to another job, or medical treatment beyond first aid), the reaction must be recorded on the employer's OSHA 300 log, even if it does not lead to or require hospitalization. As an example, if an employee misses a day of work due to an adverse reaction to the vaccine, the reaction must be recorded. Conversely, if an employee simply needs to take over-the-counter medication due to injection site swelling or pain, the reaction does not need to be recorded.
As the current vaccines will likely eventually be fully approved by the FDA (Pfizer recently sought such approval), more employers may consider mandating the vaccine. For those employers who have already done so, this new OSHA guidance adds yet another compliance obligation.
