On May 21, 2021, the Occupational Safety and Health Administration (OSHA) revoked recent enforcement guidance issued to clarify the recordability of situations where employees suffered adverse side effects from a COVID-19 vaccination. The original guidance, in a nutshell, states that if an employer requires its employees to be vaccinated as a condition of employment, the adverse reaction is recordable, if it meets the definition of a “new case” under 29 C.F.R. 1904.6 and otherwise meets the general recording criteria set out in 29 C.F.R. 1904.7. If the employer does not require vaccinations as a condition of employment (or merely encourages them), then the adverse reaction is not recordable. OSHA also memorialized this guidance in its COVID-19 frequently asked questions (FAQs).
On May 21, however, OSHA quietly removed this guidance, and replaced it with the following language:
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.
OSHA’s website also reflects the revoked enforcement guidance as formally “archived” (i.e., shelved and no longer in effect) as of May 26, 2021.
Why Revoke This Enforcement Guidance Now?
There is no doubt that OSHA’s guidance created a disincentive for employers to mandate that their employees get vaccinated. With a mandatory vaccination policy, the guidance ensured that employees’ adverse reactions (with arguably little correlation to actual work-related injuries) could end up on a company’s OSHA recordkeeping logs—which could, in turn, negatively affect its insurance rates and, in some industries, its ability to bid for work.
U.S. Centers for Disease Control and Prevention (CDC) data show that vaccination rates have been decreasing in the United States throughout the month of May. In April, vaccination rates were at their peak, with roughly 3 to 3.3 million COVID-19 vaccinations administered per day over a 7-day average. In May, vaccine administrations declined to approximately 1.6 to 1.8 million daily over a 7-day average. While some decline was expected after the initial voracious demand for COVID-19 vaccines subsided, the United States government is still trying its best to encourage as much of the population as possible to get vaccinated.
Recent CDC guidance reflects this vaccination encouragement. On May 13, 2021, the CDC issued guidance that removed face covering and social distancing requirements for fully-vaccinated individuals. OSHA’s recent about-face on its enforcement guidance on recordability of COVID-19 vaccinations is an extension of this encouragement priority.
The revision is a welcome relief to employers. Recordability of an adverse reaction from an employee’s COVID-19 vaccine was an administrative challenge, and many employers expressed frustration with OSHA’s approach. Many believe that reactions to vaccines depend, in large part, on each individual’s personal biological and medical condition and not on a workplace environment or condition that an employer could alter to reduce or eliminate the potential issue. Employers with mandatory vaccination policies felt they were unfairly targeted for having such policies, and, according to these employer’s, the guidance seemed counterproductive to OSHA’s goal of eliminating COVID-19 hazards in the workplace in that it discourages the use of mandatory vaccination policies.
OSHA is likely not finished revising its guidance. The May 13, 2021, CDC guidance conflicts with OSHA’s current COVID-19 guidance, which does not distinguish between its treatment of vaccinated and nonvaccinated workers. Stakeholders immediately inundated the agency with queries about the status of its guidance documents, as well as the status of OSHA’s Emergency Temporary Standard (ETS) for COVID-19, which has been under review at the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) since April 26, 2021.
In response to the queries, on May 17, 2021, OSHA updated its Coronavirus Disease (COVID-19) web page to make the following announcement: “OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” This suggests more guidance changes are forthcoming, to align with the May 13, 2021, CDC guidance.
With respect to the ETS, no one outside the federal government knows exactly what is in its regulatory text. The ETS has been parked at OIRA since April 26, 2021, when CDC guidance made little distinction in its treatment of vaccinated and nonvaccinated individuals. One would expect the April 26, 2021, version of the ETS to echo similar sentiments, especially on face coverings and social distancing requirements. Once OSHA receives the ETS back from OIRA, it seems safe to presume that the agency needs to make at least some moderate level of revisions to reflect current CDC guidance. Whether or how long this delays the ETS, however, is a fact known only to OSHA.