On May 21, 2021, the Occupational Safety and Health Administration (OSHA) revoked recent enforcement guidance issued to clarify the recordability of situations where employees suffered adverse side effects from a COVID-19 vaccination. The original guidance, in a nutshell, states that if an employer requires its employees to be vaccinated as a condition of employment, the adverse reaction is recordable, if it meets the definition of a “new case” under 29 C.F.R. 1904.6 and otherwise meets the general recording criteria set out in 29 C.F.R. 1904.7. If the employer does not require vaccinations as a condition of employment (or merely encourages them), then the adverse reaction is not recordable. OSHA also memorialized this guidance in its COVID-19 frequently asked questions (FAQs).
On May 21, however, OSHA quietly removed this guidance, and replaced it with the following language:
Are adverse reactions to the COVID-19 vaccine recordable on the OSHA recordkeeping log?
DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.
OSHA’s website also reflects the revoked enforcement guidance as formally “archived” (i.e., shelved and no longer in effect) as of May 26, 2021.
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