TWO COVID-19 UPDATES FOR BUSINESSES – DID YOU KNOW? – A Must Read

By: Darcy Cook, CHSO, SHS, PTA

1. Biden Nominates California Safety Chief, Parker as Head of OSHA
Want to know what is in your future? Visit the State of California’s Department
of Industrial Relations Page on COVID-19 to get a head start on what is coming.

2. Know the Facts Before You Mandate Vaccination Requirements of Your Employees
OSHA FAQ states that adverse reactions including hospitalizations and death after mandating your employees to get vaccinated will be OSHA recordables.

President Joe Biden announced last week that his nominee for assistant secretary for occupational safety and health for the Department of Labor is Douglas L. Parker, the current head of the California Division of Occupational Safety and Health (Cal/OSHA).

With California already releasing their State Regulations on COVID-19 (Cal/OSHA) it isn’t hard to imagine what the new Federal OSHA requirements for businesses across this country will look like.

Parker oversaw the development and issuance of an emergency temporary COVID-19 standard for the state. California is one of a handful of states that has its own coronavirus-related standard, and Biden has ordered federal OSHA to evaluate the need for one at a national level.

As more businesses reopen without restrictions and increased availability of vaccine supplies, many employers contemplate a mandatory vaccine policy. The decision requires a company to consider its individualized needs and facts for each organization, such as the employer’s size, the industry, the nature of the employee’s duties, percentage of employees who can continue to work from home, engineering and administrative controls already successfully implemented and the administrative burden that would follow a mandatory policy.

Many employers are reportedly also considering or offering “incentives” to employees to persuade them to receive the vaccine, even if not requiring them to do so.

OSHA published on April 20 in the form of new FAQs, recordkeeping issues related to recording adverse vaccine reactions. In the FAQ’s OSHA states that if an employer requires its employees to be vaccinated as a condition of employment, then any adverse reaction to the vaccine is work-related. Thus, the adverse reaction would need to be recorded when it is a new case and meets one or more of the general recording criteria in the recordkeeping regulation, e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid.
Conversely, OSHA states that it will exercise enforcement discretion and will not require adverse reactions to be recorded when the employer only “recommends” that employees receive the vaccine even if it provides vaccines or makes arrangements for employees to receive them offsite, i.e., doing so is voluntary.

OSHA notes explicitly, however, that the “vaccine must be truly voluntary.” OSHA states that it must be the employees’ choice to accept or reject the vaccine without consequences to their performance rating or professional advancement. Employees who elect not to take the vaccine cannot suffer any repercussions from their choice.

Another collateral issue is the obligation for employers to report fatalities and hospitalizations to OSHA. Under OSHA’s guidance above, any hospitalization from an adverse reaction that occurs within twenty-four hours after a mandatory dose is received should be affirmatively reported to OSHA. Of course, these reports often trigger audits, so employers should consider the impact and repercussion of an OSHA audit and consider this in their decision to implement mandatory vaccination policy.

Resources
OSHA Frequently Asked Questions Related to COVID 19 Page