As more businesses reopen without restrictions and increased availability of vaccine supplies, many employers contemplate a mandatory vaccine policy. The decision turns on individualized facts to each organization, such as the employer’s size, the industry, the nature of the employee’s duties, and the administrative burden and similar considerations that 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.
In guidance published on April 20 in the form of new FAQs, OSHA added recordkeeping issues related to recording adverse vaccine reactions.mIn 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.” In the opening on this requirement, OSHA clarifies 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.
The FAQs do not directly address whether employers who provide incentives could cross the line from voluntary to mandatory, mainly if the incentive is more than nominal, e.g., a twenty-dollar gift card to Starbucks. In prior guidance issued in 2012 discussing whether specific overall safety record incentive plans could be retaliatory, OSHA took the position that if an employee incentive is substantial enough, the loss of the incentive will dissuade reasonable workers from reporting injuries could be retaliatory. Although OSHA issued more recent guidance in 2018 generally stating that incentive programs that reward workers for reporting near-misses or hazards and encourages involvement in safety and health are permissible, employers should be aware this incentive issue could be a potential issue with respect to vaccines and should consider making any incentive for an employee to receive a vaccine not so generous or enticing to raise the question of whether agreeing to the vaccination was truly “voluntary.”
Another collateral issue is the obligation for employers to report fatalities and hospitalizations to OSHA. Under OSHA’s guidance above, it would seem that 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 this additional factor in their decision whether or not to implement a mandatory policy.
A copy of the newly published FAQs can be found here.