The federal Occupational Safety and Health Administration (OSHA) has issued a rather bombshell update to its website which is not good news to companies who force their employees to take the COVID-19 vaccine. Essentially, according to OSHA, companies may be liable for an employee’s adverse reaction to the vaccine if they require them to take it.
In a recent update to the OSHA website’s FAQ section, the agency outlines the “vaccine related” requirement for on-the-job injuries. In three parts it details the liability.
Are adverse reactions to the COVID-19 vaccine recordable on the OSHA recordkeeping log?
In general, an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).
If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?
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.
In a third bullet point, OSHA explicitly notes that employers who do not require their employees to take the vaccine, will not be held liable through the recording criteria in 29 CFR 1904.7. The guideline notes that in order for an employer to be free from liability, the vaccine must be “truly voluntary,” meaning no negative reports for unvaccinated employees.
I do not require my employees to get the COVID-19 vaccine. However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite. If an employee has an adverse reaction to the vaccine, am I required to record it?
No. Although adverse reactions to recommended COVID-19 vaccines may be recordable under 29 CFR 1904.4(a) if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.
Note that for this discretion to apply, the vaccine must be truly voluntary. For example, an employee’s choice to accept or reject the vaccine cannot affect their performance rating or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice. If employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely “recommended” and employers should consult the above FAQ regarding COVID-19 vaccines that are a condition of employment.
Note also that the exercise of this discretion is intended only to provide clarity to the public regarding OSHA’s expectations as to the recording of adverse effects during the health emergency; it does not change any of employers’ other responsibilities under OSHA’s recordkeeping regulations or any of OSHA’s interpretations of those regulations.
Finally, note that this answer applies to a variety of scenarios where employers recommend, but do not require vaccines, including where the employer makes the COVID-19 vaccine available to employees at work, where the employer makes arrangements for employees to receive the vaccine at an offsite location (e.g., pharmacy, hospital, local health department, etc.), and where the employer offer the vaccine as part of a voluntary health and wellness program at my workplace. In other words, the method by which employees might receive a recommended vaccine does not matter for the sake of this question.
This clarification by OSHA is especially relevant thanks to the The National Vaccine Injury Compensation Program (NVICP) which removes any and all liability from vaccine manufacturers even if their product kills someone.
You can actually prove that you or your child were harmed from a vaccine yet the vaccine maker is completely shielded from liability. Even if you are awarded monetary compensation through the NVICP, the taxpayers are put on the line, not the vaccine makers.
If companies have to start footing the bill for lawsuits related to COVID-19 vaccine adverse reactions, the implications for vaccine manufacturers could be massive especially given the sheer magnitude of adverse events being reported to the CDC from the COVID-19 vaccine.
The most recent data released by the Centers for Disease Control and Prevention (CDC) on the number of injuries and deaths reported to the Vaccine Adverse Event Reporting System (VAERS) following COVID vaccines reveals there have been over 192,954 adverse events reported. Of those adverse reactions, according to the CDC, 17,190 consist of serious injuries, and 4,434 of them are deaths — up nearly 300 deaths, 30,000 adverse events, and 1,000 serious adverse events since we reported on it last week.