OSHA Changes Its Recording Requirements for Adverse Reactions to the COVID-19 Vaccine

By Fiona Ong - Shawe & Rosenthal LLP

May 24, 2021

Well, we’re always playing catch-up with the changing agency guidance on COVID-19 – and the Occupational Safety and Health Administration just juked on its recording requirements for adverse effects to the COVID-19 vaccine. Now, employers will not be required to record such adverse reactions – at least through May 2022.

OSHA requires employers to prepare and maintain records of “recordable ” injuries and illnesses on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Report). An illness or injury is recordable if: (1) it is work-related, (2) it is a new case, and (3) the incident involves days away from work or medical treatment beyond first aid, among other things. Some employees have experienced side effects from the COVID-19 vaccine that are serious enough to require leave or even medical treatment – which meet the criteria for recording.

As we previously reported, OSHA had issued guidance that adverse reactions  meeting the above criteria were recordable if the employer required the employee to get the vaccine. If the employer only recommends the vaccine, however, then there was no recording requirement for adverse reactions.

But now, following expressions of concern by business advocates including the U.S. Chamber of Commerce (and shout out to our friend and colleague, Bill Wahoff of Steptoe & Johnson PLLC), OSHA has revised its position on recording requirements for adverse reactions to the COVID-19 vaccine. In its COVID-19 Frequently Asked Questions, OSHA now states as follows:

Are adverse reactions to the COVID-19 vaccine recordable on the OSHA recordkeeping log?

DOL 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.

So, at least for the next year, employers do NOT need to record any adverse effects from the COVID-19 vaccine experienced by their employees, regardless of whether the vaccine is mandated or voluntary! (The whiplash from the change in agency position, however, may be a recordable event…)