ASE is getting quite a few questions from employers surrounding vaccination policy and practice. Employers are advised to make vaccination a voluntary practice. In other words, do not mandate vaccinations if it is not absolutely necessary. Mandating vaccinations opens employers up to not just employee relations issues but as of last week, OSHA would also require employers that mandate vaccines to record adverse reactions from the vaccination as a recordable workplace illness on their OSHA 300 Logs ( MIOSHA 300 Log in Michigan).
ASE’s 2021 COVID-19 Business Impact Survey released in February found only 1 employer (0.6%) planning to mandate employee vaccinations.
The new OSHA guidance states that employers must record an adverse reaction to vaccination if it is 1) work related, 2) a new case, 3) meets one or more of the general recording criteria such as days away from work, resulting in restricted work, transfer to another job, or requires medical treatment beyond first aid (29 CFR 1904.7), AND 4) the vaccine is required for employees.
OSHA’s guidance states that voluntary means that the employee suffers no material adverse employment consequences for choosing not to vaccinate.
No information is provided by OSHA defining what reactions would be considered “work related” or even how an employer could determine that. Therefore, an employer would have to have a doctor’s determination that the adverse reaction (except for anaphylaxis that occurred during the medical review period immediately after the shot) came from the vaccination.
Further, OSHA does not address reporting of any serious illnesses. Under federal OSHA rules an employer most notify OSHA within 24 hours of an in-patient care situation. Employers are not provided any guidance on what to do in that event or about what to do if a death occurs under these circumstances. Normally, any fatality must be reported to OSHA by phone within 30 days of a death.
Michigan is one of 23 states that have their own workplace safety and health agency. Since Michigan’s safety and health agency (MIOSHA) regulates Michigan employers, they may publish rules on record-keeping that are more restrictive than OSHA. So far; however, no word has come out from MIOSHA.
In summary, employers that only request its employees get a COVID-19 vaccination do not have to report an adverse vaccine reaction as an occupational illness on its Form 300.
ASE will continue to monitor all employer regulatory, legal, or best practice developments surrounding the pandemic.
Additional ASE Resources:
Contagious Diseases and Pandemic Toolkit – ASE members have access to the ASE Contagious Diseases and Pandemic Toolkit via the ASE Member Dashboard. The toolkit contains over 50 tools (including a return-to-work plan), forms, and template policies as well as over 50 useful links for easy reference to local, state, and federal resources. Non-members can request to purchase the toolkit here.
COVID-19 Employer Resources - Visit our employer resources webpage for more information on resources for encouraging and directing employees to vaccination sites or hosting one of your own.
Helpful EPTW Articles:
Employee Perspectives on COVID-19 Vaccinations
Center for Disease Control Issues Employer Vaccination Program Guidance
Questions to Consider if Your Organization is Evaluating the Use of Vaccine Passports
Source: OSHA Advises Employers Not to Record Adverse Reactions From Voluntary COVID-19 Vaccines on the 300 Log. Seyfarth Shaw LLP Employment Law Lookout (4/23/2021)