Companies may be liable if they mandate COVID Vaccines

Companies have been put on notice that they would be responsible for any adverse reaction should they require their employees be vaccinated with a COVID vaccine, says the United States Occupational Safety and Health Administration (OSHA).

In the Frequently Asked Questions section of OSHA’s website having to do with COVID safety compliance, a question was asked whether an adverse reaction to a COVID vaccine had to be recorded if an employer mandated vaccination as a condition for employment.

OSHA 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.”

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According to OSHA, recording requirements of serious work-related injuries and illness may leave employers with worker’s compensation claims and impact their safety record.

Conversely, OSHA states it will exercise enforcement discretion and will not require adverse reactions be recorded when an employer only “recommends” that employees receive the vaccine, while noting that for this discretion to apply, the vaccine must be truly voluntary.

In determining whether a vaccine is “voluntary,” the website states, “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.”

In response to the news that COVID vaccine adverse reactions suffered by workers are reportable incidents, or incidents that count against a company’s safety record, several large contractors said they have changed or will change their vaccination policy to only recommend — not require — a vaccine.

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All businesses and institutions will be very reluctant to mandate vaccinations if OSHA says adverse reactions count as reportable against a company’s “experience modification rate.” It’s honestly ridiculous, Clark said.

Employers may also consider circumstances in which OSHA will investigate an employer’s recordkeeping practices. If an employer’s vaccination program is voluntary, an employer may not have any entries resulting from adverse reactions. Under those circumstances, OSHA will have to ask the employer about the vaccination program and whether any employee suffered an adverse reaction.