COVID-19 Vaccination: Require or Recommend?

If you mandate a COVID-19 vaccination for employees, you’ll have to record adverse reactions as work-related.

What’s your policy?

On April 20, the Occupational Health and Safety Administration (OSHA) published three new FAQs under the subheading “Vaccine Related.” This additional guidance is for employers who recommend or require their employees to receive COVID-19 vaccines.

The agency has already launched a COVID-19 National Emphasis Program (NEP), which means that OSHA will prioritize COVID-related complaints and referrals for on-site inspections. Employers should also note that the NEP reiterates a familiar caution concerning all OSHA inspections: any safety violations that are in plain view during an on-site inspection must be addressed by “Certified Safety and Health Officials and cited, where appropriate.” Are you ready for a “walk-around” with an OSHA official?

Employers throughout the country are now developing and implementing COVID-19 vaccination policies for their workplaces. Those with operations in higher-risk industries — based on 300A reporting data — should have a clear and comprehensive vaccination policy in place and be prepared for an OSHA visit in the months ahead.

The EEOC says: “It’s legal to mandate.”

In December 2020, the Equal Opportunity Commission (EEOC) published guidance that specifically says that mandatory vaccination programs are lawful under both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. Like all workplace policies, a vaccination mandate would be subject to “reasonable accommodations” for medical or religious reasons.

Employers implementing or considering COVID-19 vaccination mandates are mostly from industry sectors where employees are at higher risk — healthcare, travel and hospitality, retail services, food processing, warehouse services, and several others. Employers operating office-based businesses — and businesses that can rely on remote workers — may be more likely to recommend vaccination rather than require it.

The new guidance from OSHA clarifies reporting requirements for employers who choose to implement a mandatory vaccination policy.

If you decide to require vaccination…

OSHA says that employers requiring their employees to be vaccinated must record an employee’s adverse reaction — which can be moderate to severe in some individuals — in their form 300A workplace illness log. OSHA says that the “adverse reaction is recordable if it is a new case under the general recording criteria of 29 CFR 1904.6 (e.g. days away from work, restricted work or transfer to another job, medical treatment beyond first aid).

The new OSHA guidance further states that if vaccination is truly voluntary, an employee who “chooses not to receive the vaccine cannot suffer any repercussions from this choice.”

 What employers need to do

If you haven’t developed and implemented a clear and comprehensive COVID-19 vaccination policy for your workforce, you need to do so. Employers must make the policy clear in all communications with employees and be prepared to discuss the policy with OSHA if and when they visit.

Remember that employees are more likely to file a complaint if they are denied time off for an illness they consider to be work-related. For employers who are implementing a voluntary vaccination policy, providing post-vaccination paid time off could be very helpful in encouraging vaccination and mitigating complaints.

In the meantime, if you have any questions or concerns about your COVID-19 vaccination policies — or any OSHA compliance issue — please don’t hesitate to get in touch.

About the Author: James Laboe

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