Employers May Be Held Liable for ‘Any Adverse Reaction’ if They Mandate COVID Vaccines

New guidance from the Occupational Safety and Health Administration (OSHA) is making employers think twice about their COVID vaccine requirements.

On April 20, companies were put on notice they’ll be responsible for any adverse reaction should they require their employees to be vaccinated with a COVID vaccine.

In the Frequently Asked Questions section of OSHA’s website has to do with COVID safety compliance, a question was asked whether an adverse reaction to a COVID vaccine had to be recorded if an employer-mandated vaccination as a condition for employment.

OSHA stated:

“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 general, an adverse reaction to the COVID 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).

According to OSHA, recording requirements of serious work-related injuries and illness may leave employers with worker’s compensation claims and impact their safety record.

Conversely, OSHA states it will exercise enforcement discretion and will not require adverse reactions to be recorded when an employer only “recommends” that employees receive the vaccine while noting that for this discretion to apply, the vaccine must be truly voluntary.

In determining whether a vaccine is “voluntary,” the website states, “an employee’s choice to accept or reject the vaccine cannot affect [his or her] performance rating or professional advancement,” and that an “employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.”

If employees are not free to choose whether or not to receive the vaccine without fearing negative recourse, then the vaccine is required and employers should refer to the section on COVID vaccines as a condition to employment.

In response to the news that COVID vaccine adverse reactions suffered by workers are reportable incidents, or incidents that count against a company’s safety record, several large contractors said they have changed or will change their vaccination policy to only recommend — not require — a vaccine.

Construction firm Clayco stepped back from a previously announced firmwide vaccine mandate in response to the recent federal guideline.

“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.”

“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 (ACG).

ACG is not in support of any vaccine mandate, however, the company participated in vaccine awareness week in April and hosted vaccine clinics on an active job site and in its offices.

Cannon said some 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.”

All businesses and institutions will be very reluctant to mandate vaccinations if OSHA says adverse reactions count as reportable against a company’s “experience modification rate.” It’s honestly ridiculous, Clark said.

An experience modification rate, or EMR, is a safety rating insurers use in calculating workers’ compensation. Part of the calculation includes reportable incidents — a higher number of reportable incidents damages the company’s safety ratings and could hike up the price of insurance, St. Louis Business Journal reported.

Clark noted that Clayco wants to set an example and plans to challenge the guidance through lobbying and outreach to senators, and it’s not alone in that effort. The company also will continue to strongly encourage employees to get vaccinated, log which employees do, and are considering “vaccinated only” areas within its workspace.

According to the National Law Review, employers may want to make it clear in communications to employees whether COVID vaccines are required or voluntary.

Employers may also consider circumstances in which OSHA will investigate an employer’s recordkeeping practices. If an employer’s vaccination program is voluntary, an employer may not have any entries resulting from adverse reactions. Under those circumstances, OSHA will have to ask the employer about the vaccination program and whether an employee suffered an adverse reaction.

Employees may be more likely to make a complaint to OSHA when they have been denied time off for an illness that they consider to be work-related, which means post-vaccination paid time off may be helpful.

Although OSHA is facing scrutiny for its guidance, it is consistent with the U.S. Food and Drug Administration’s Emergency Use Authorization (EUA), which requires any product with this designation to be voluntary. Currently, Pfizer, Moderna, and Johnson & Johnson are only approved for emergency use.

As reported by The Defender, this was reiterated in August 2020 at a Centers for Disease Control and Prevention (CDC) published meeting of the Advisory Committee on Immunization Practices, where its executive secretary, Dr. Amanda Cohn, stated:

“I just wanted to add that, just wanted to remind everybody, that under an Emergency Use Authorization, a EUA, vaccines are not allowed to be mandatory. So, early in this vaccination phase, individuals will have to consent and they won’t be able to be mandated.”