By Brent I. Clark, James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen
Seyfarth Synopsis: OSHA this week issued an additional guidance addressing whether employers need to record adverse vaccine reactions on their 300 Logs.
Consistent with the OSHA regulations, OSHA’s guidance explains that an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).” The FAQ adds an additional requirement: (4) the vaccine is required for employees.
Accordingly, adverse reactions are only potentially recordable on the OSHA 300 log where the employer mandates the vaccine; where the vaccine is voluntary, OSHA is exercising “enforcement discretion to only require the recording of adverse effects to employer required vaccines at this time.” Employers “do not need to record adverse effects from COVID-19 vaccines that [they] recommend, but do not require.” For the record-keeping exception to apply, the vaccine must be voluntary in the sense that employees face no material adverse employment consequences for choosing to remain unvaccinated.
For mandatory vaccines, OSHA does not define what reactions would be considered to be “work-related,” or how employers should conduct the analysis. Aside from anaphylaxis during the medical review period after the vaccine, employers may lack the information to know whether a vaccine contributed to the alleged symptoms, and would need to rely on the report of a physician. Based on OSHA’s prior vaccination recordkeeping advice, we recommend further analyzing whether the vaccine was administered at work, whether the adverse reaction occurred at work, and whether the employee was required to get the vaccine because the employer reasonably expected exposure to active COVID-19 cases at work (such is in a hospital, nursing home, or correctional institution).
OSHA’s guidance also does not address reporting of serious illnesses, meaning the requirement for employers to call OSHA and report an adverse vaccine reaction that results in a death within 30 days or an in-patient hospitalization for medical treatment within 24 hours. Presumably, OSHA would exercise the same discretion for voluntary vaccinations, but the issue is not entirely clear.
Also, 23 OSHA state plans regulate private employers in their respective states. Those states may offer guidance that is more restrictive on the record-keeping of adverse vaccine reactions. If your company operates in California or another aggressive OSHA state plan, check with qualified outside OSHA counsel as to whether record-keeping of adverse vaccine reactions is required for voluntary vaccines.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.