On April 20, 2021, the federal Occupational Safety and Health Administration (OSHA) issued guidance to employers who are thinking about requiring their employees to take a COVID-19 vaccine as a condition of employment. (See here).
Per OSHA’s April 20th guidance, employers who require their employees to take a COVID-19 vaccine as a condition of employment must record their employees’ adverse reactions to the vaccine on an OSHA recordkeeping log if the vaccine:
- results in death;
- causes the employee to miss days from work or require medical treatment other than first aid (e.g., hospitalization);
- results in a loss of consciousness;
- results in a work restriction or job transfer; or
- results in significant injury or illness that is diagnosed by a licensed medical professional even if that injury or illness does not result in death, days away from work, medical treatment other than first aid, loss of consciousness, or any work restriction or transfer.
However, these recording obligations are absent in cases where an employer merely recommends that its employees take a COVID-19 vaccine. This is true even where an employer makes a COVID-19 vaccine available on-site or arranges for the employee to receive the vaccine elsewhere.
Critically, employers need to be clear on what OSHA’s guidance did not say. The guidance did not say that employers can compel their employees to take a COVID-19 vaccine with legal impunity. In fact, in past years, OSHA has warned (albeit in a non-COVID-19 context) that employees may be protected by federal whistleblower laws where they refuse to take a vaccine out of concern that they have a “medical condition that creates a real danger of serious illness or death”— including a serious reaction to a vaccine. (See here)
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