New OSHA guidance for employers on COVID vaccines

United States Publication April 2021

Federal OSHA has advised previously that employers can require the COVID-19 vaccination as a condition of employment. It has now released additional guidance for employers to clarify what this can mean in the real world.

Specifically, OSHA addresses the potential (albeit rare to date) of an employee who incurs an adverse reaction to a mandated vaccination. In such a situation, the reaction will be deemed "work-related."

The ultimate effect of this guidance is that if the adverse reaction involves days away from work, restricted work, transfer to another job or medical treatment beyond first aid, it will be considered a "recordable" incident. In other words, the reaction will be part of the record of serious work-related injuries and illnesses that OSHA requires most companies with more than 10 workers to maintain and make available to their employees.

By contrast, employers that simply recommend vaccination to their employees are not required to record an adverse reaction as work-related. OSHA notes that this distinction applies only if the vaccine is truly voluntary. Indeed, in this circumstance, OSHA states that, "[a]n employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice."

It is also important to highlight that, under the OSHA guidance, an adverse reaction is not recordable even if an employee who was not required by the employer to be vaccinated still received the vaccine at work. The critical determination is whether the vaccination is a condition of employment.

See our other COVID-related guidance on our Health Law Pulse blog post, "COVID-19 Update: U.S. Centers for Disease Control and Prevention Updates Mask Guidelines."

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