It Looks Like a Mandatory COVID-19 Standard Will be Coming, and OSHA Clarifies Recording Adverse Vaccine Reactions

Ruder Ware
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There are two new developments on the OSHA COVID-19 front to report.  First, yesterday, OSHA sent a draft of a new, mandatory, temporary emergency standard on COVID-19 to the Office of Management and Budget (OMB) for review.  Up to now, OSHA has not had a mandatory standard in place to deal with the coronavirus, relying instead on guidances it has issued and on the General Duty Clause for enforcement efforts.

As soon as President Biden took office, he directed OSHA to determine whether a mandatory temporary emergency standard on COVID-19 was needed and, if so, to issue it by March 15, 2021.  That deadline was not met, though OSHA said in a statement yesterday that it “has taken the appropriate time” to make sure the standard was correct.  It is not known how quickly the OMB will complete its review.  However, OSHA has been working with the OMB on this, so the final version may be coming sooner rather than later.

The second development occurred last week, when OSHA provided guidance to employers on recording adverse employee reactions to the COVID-19 vaccine on their OSHA logs.  The guidance is in the form of an update to the Frequently Asked Questions on OSHA’s website.

We have previously discussed when employers need to record COVID-19-related illnesses on their OSHA logs.  Briefly, an illness is to be recorded when it is work-related, is a new case, and meets one of the general recording criteria, such as when the illness results in days away from work, restricted work, transfer to a new position, or medical treatment beyond first aid.  For a more in-depth discussion, see our previous articles: OSHA Will Again Require Employers to Record COVID-19 Illness Cases.

OSHA has now clarified that when employers require employees to be vaccinated, adverse vaccine reactions are considered work-related for recording purposes.  If employers do not require employees to be vaccinated, recording adverse reactions is not required.  This is the case even if the employer recommends to employees they be vaccinated and provides the vaccine or makes arrangements for them to receive it offsite.  In such cases, receiving the vaccine must be truly voluntary on the part of the employee, with no adverse job-related consequences for not getting the vaccine.

The updated FAQs may be found at COVID-19 – Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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