***UPDATE: On May 21, 2021, OSHA published a new FAQ establishing that employers do not need to record adverse reactions from COVID-19 vaccines on their OSHA 300 Logs, at least through May of 2022.  The enforcement position applies regardless of whether an employer requires, recommends, or incentivizes employees to receive the vaccine.

On April 20, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued guidance regarding employers’ obligation to record adverse reactions to the COVID-19 vaccine.  The guidance, which is in the form of answers to three frequently asked questions, clarifies that if an employer adopts a mandatory vaccination policy, an adverse reaction to the COVID-19 vaccine is recordable on an employer’s OSHA 300 log if the reaction is: (1) work-related; (2) a new case; and (3) meets one or more of the general recording criteria set forth in 29 C.F.R. 1904.7.

According to the guidance, if an employer requires 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.  Therefore, the adverse reaction is recordable in the OSHA 300 log if it (i) led to the employee missing more than one day of work; (ii) required medical treatment beyond first aid; or (iii) resulted in restricted work or transfer to another job.  As we previously reported, those are the same conditions that trigger mandatory recording of other types of work-related injuries and illnesses.

Employers that recommend the vaccine, but do not require it, do not need to record adverse reactions.  According to the guidance, “[a]lthough 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.” OSHA notes in the guidance that this applies to a variety of scenarios where employers recommend, but do not require vaccines, including where the employer (i) makes the COVID-19 vaccine available to employees at work; (ii) makes arrangements for employees to receive the vaccine at an offsite location (e.g., pharmacy, hospital, local health department, etc.); and (iii) offers the vaccine as part of a voluntary health and wellness program at the workplace.

To gain the benefit of OSHA’s discretion not to require the recording of an adverse reaction to the COVID-19 vaccine, the vaccine at issue must be truly voluntary. For example, the guidance explains that an employee’s choice to accept or reject the vaccine cannot have any negative impact on the employee, including any negative impact on their performance rating or professional advancement.  According to the guidance, “[i]f employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely ‘recommended.’”

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