OSHA - Any Adverse Reaction To An Employer Mandated Covid Jab Is Work-Related

ENR  |  New guidance from the U.S. Occupational Safety and Health Administration is causing contractors to change their COVID-19 vaccine requirements, and many of them criticize the guidance as diametrically opposed to the Biden administration's stated desire to increase vaccinations.

Update: EEOC Says It Will Create Specialized Return-to-Work Guidelines

On April 20, OSHA released the new guidance in the frequently asked questions section of its website for COVID-19 safety compliance.  

The question asks whether an employer should record adverse reactions to COVID-19 vaccination if the employer requires the vaccine. OSHA states that if a vaccine is required, then any adverse reaction is considered work-related and therefore it must be recorded. Under OSHA rules, most employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses. Recorded injuries and illnesses become part of a contractors safety record.

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This is the actual text of the new question and answer on the OSHA website:

"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."

In response, several large contractors said they have changed or will change their vaccination policy to only recommend—not require—a vaccine.

"We, sadly, had to back off our (employee vaccination) mandate because OSHA did something I don't understand at all," said Bob Clark, founder and executive chairman of Clayco in a recent ENR Critical Path podcast. "I side with OSHA frequently, we're in its VIP program, but on this they're just wrong. It's a terrible decision they've made and I think it'll be overturned."

Clark said Clayco, which participated in crafting the initial Centers for Disease Control guidance on construction site safety during the pandemic, would be communicating with OSHA through members of congress to seek changes to the guidance. A spokeswoman for OSHA did not immediately return messages asking for clarification of the new guidance. Construction industry groups universally panned the guidance and said it would hurt their efforts to encourage employees to get vaccinated.

"What they put forward could potentially discourage employers from supporting their workers getting the vaccine," said Kevin Cannon, senior director of safety and health services at the Associated General Contractors of America. "AGC is not in support of any mandate, however we participated, April 19th through 23rd, in vaccine awareness week. We had a lot of members who were in chapters that supported the event. We even had some who hosted vaccine clinics on an active job site or in their offices."

Cannon said some member contractors may have changed their approach to those events had they known, at the time, they could potentially "be on the hook for recording these potential adverse reactions."