OSHA Abruptly Reverses Course, Says Employers Will Not Be Liable for COVID Vaccine Injuries After All

The federal Occupational Safety and Health Administration (OSHA) Friday reversed its position on requiring companies that mandate COVID vaccines to treat adverse reactions as “recordable injuries,” announcing that it will no longer enforce its previous ruling.

OSHA said it made the change in order to avoid “the appearance of discouraging workers” from getting the COVID vaccine and also because it did not wish to “disincentivize employers’ vaccination efforts.”

According to the agency’s website:

“DOL [U.S. Department of Labor] and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.”

As The Defender reported May 20, OSHA’s website previously 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, the requirement that employers must record serious work-related injuries and illness can leave employers with worker’s compensation claims, which can have a negative impact on the employer’s safety record.

OSHA previously stated it would 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 would have to be truly voluntary.

In determining whether a vaccine is “voluntary,” the website previously stated, “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 were not free to choose whether or not to receive the vaccine without fearing negative recourse, then the vaccine was not considered voluntary.

The Defender reached out to OSHA and asked why the agency abruptly changed its policy, who pressured OSHA to change its position and why adverse reactions caused by COVID vaccines that an employee may be required to receive as a condition of employment and would fall under 29 CFR 1904.7 would not be recorded as a work-related injury.

OSHA responded by referring us to the Centers for Disease Control and Prevention to read more about coronavirus, local and regional OSHA facilities, and the U.S. Department of Labor’s website. An OSHA spokesperson declined to provide any additional information.

According to the St. Louis Post-Dispatch, Bob Clark, executive chairman of Clayco construction firm, said he worried OSHA’s previous policy would harm a company’s safety record and cause higher workers’ compensation costs. Clayco was one of the leading companies to mandate COVID vaccination before OSHA’s initial ruling and plans to reinstate the mandate now that the agency has reversed its position.

Children’s Health Defense argues that COVID vaccine mandates violate federal law, and provides resources for concerned employees, students and parents.