While there has been much discussion about what employer vaccination policies must do to comply with federal and state antidiscrimination laws, OSHA has issued guidance adding another factor for employers to consider when crafting such a policy:
Most employers are aware of the requirement that they record “work-related” illnesses and injuries and report hospitalizations, fatalities, and certain serious injuries to OSHA. During the past year Stevens & Lee has reported on OSHA’s evolving guidance on when employers must record and/or report an employee case of COVID-19. On April 20, 2021, OSHA issued guidance regarding when employers must record and/or report an employee’s adverse reaction to a COVID-19 vaccine. According to OSHA: “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.” Thus, if an employer requires employees to be vaccinated, the employer must record adverse reactions, assuming other mandatory reporting requirements are met, i.e., if it causes the employee to miss work, perform restricted work or transfer to another job, or requires medical treatment beyond first aid.
The determinative factor is whether the employee’s receipt of the vaccine is mandatory. The guidance states that if an employer recommends but does not require that employees get the vaccine, or if an employer provides voluntary vaccines for employees on-site or arranges for employees to voluntarily receive the vaccine off-site, the employer need not consider an adverse reaction work-related for OSHA recording purposes. However, OSHA emphasizes that the employee’s choice must be truly voluntary. In this regard, “an employee’s choice to accept or reject the vaccine cannot affect their performance rating or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.”
One day after OSHA issued this guidance the Internal Revenue Service published guidance for employers to take advantage of tax credits if they offer paid leave to employees who take time off to get vaccinated or recover from adverse effects of vaccination.