If My Employer Requires A COVID-19 Vaccine And I Have A Bad Reaction, Is It A Osha Recordable?
Yes, 29 CFR 1904 recording requirements require employers mandating the COVID-19 vaccination to record a worker's side effects from the COVID-19 vaccination. However, in guidance in the frequently asked questions section of its website for COVID-19 safety compliance, OSHA states that it 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 employers to record worker side effects from COVID-19 vaccination through May 2022.
This is a recent change in policy by OSHA. According to ENR, on April 20, 2021, OSHA released guidance on mandated-vaccine-related injuries that required that adverse reactions be reported. The April 20th guidance stated:
"If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?
If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7."
Osha's guidance requiring the reporting of side effects from mandated COVID-19 was not received well by many employers who were attempting to protect their employees by mandating COVID-19 vaccinations. ENR reported that in response, several large contractors said they have changed or will change their vaccination policy to only recommend—not require—a vaccine. The response appears to have caused OSHA to change its approach based on the most recent guidance.
OSHA's Guidance On Workplace-Vaccination Injuries Other Than COVID-19
OSHA's stance on other workplace-vaccination injuries, e.g., Smallpox Vaccinations, has been that if an employee has an adverse reaction to a vaccination, the reaction is recordable if it is work-related and meets the general recording criteria contained in 29 CFR 1904.7.
OSHA's guidance states a reaction caused by a vaccination is work-related if the vaccination was necessary to enable the employee to perform his or her work duties. Further, a reaction is work-related even though the employee was not required to receive it if the vaccine was provided by the employer to protect the employee against exposure in the work environment. For example, if a health care employer establishes a program to vaccinate employees who may be involved in treating people suffering from the effects of an outbreak, reactions to the vaccine would be work-related.
The same principle would apply to adverse reactions among emergency response workers whose duties may cause them to be exposed to an outbreak and would apply to vaccinations given to employees to immunize them from diseases to which they may be exposed to in the course of work-related overseas travel.