OSHA Shifts Position On Recordability Of Adverse Reactions From COVID-19 Vaccines

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By: Darcy Cook, CHSO, SHS, PTA

The Occupational Safety and Health Administration (OSHA) on May 21, 2021, published a new Frequently Asked Question (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.

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OSHA’s website also reflects the revoked enforcement guidance as formally “archived” (i.e., shelved and no longer in effect) as of May 26, 2021.

The revision is a welcome relief to employers. Recordability of an adverse reaction from an employee’s COVID-19 vaccine was an administrative challenge, and many employers expressed frustration with OSHA’s approach. Many believe that reactions to vaccines depend, in large part, on each individual’s personal biological and medical condition and not on a workplace environment or condition that an employer could alter to reduce or eliminate the potential issue. Employers with mandatory vaccination policies felt they were unfairly targeted for having such policies, and, according to these employer’s, the guidance seemed counterproductive to OSHA’s goal of eliminating COVID-19 hazards in the workplace in that it discourages the use of mandatory vaccination policies.

There are still more changes to come. The status of OSHA’s Emergency Temporary Standard (ETS) for COVID-19, which has been under review at the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) since April 26, 2021 still needs to be released. Once OSHA receives the ETS back from OIRA, it seems safe to presume that the agency needs to make at least some moderate level of revisions to reflect current CDC guidance. It is unclear how long this process may take.