OSHA Revises Employer Guidelines on COVID Vaccine Reactions to Avoid “Appearance” of Discouraging Vaccination
As an increasing number of employers including restaurants,1 colleges2 and health care facilities3 are requiring the COVID-19 vaccine, many employers are looking to the federal Occupational Safety and Hazard Administration (OSHA), among other government agencies, for guidance on how to proceed with COVID-19 vaccination protocols. Last week, guidelines from OSHA indicated that employers who are requiring the vaccine for their employees may be held liable for adverse reactions that may occur.4
This information, which was met with some criticism,5 6 has since been removed from the OSHA COVID-19 Frequently Asked Questions web page. New guidelines state that, in order to avoid the appearance of discouraging the vaccine, “OSHA will not enforce recording requirements to any employers to record worker side effects from the COVID-19 vaccination through May 2022.”4
Prior to the recent removal, the COVID-19 Frequently Asked Question section of the OSHA website listed the following question:
If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?
Initially, the OSHA response was:
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 8
OSHA Receives Pushback for Requiring Vaccine Related Reports
That question and answer have since been removed from the OSHA page but are summarized in multiple news articles that discussed the guidelines as first published by OSHA.5 6 7 8 One of these articles written by Construction Dive on May 18 quoted Bob Clark, a general contractor in Chicago, as saying that the initial OSHA guidance was a “tremendous mistake” that may discourage companies from requiring their employees to get the vaccine. Following publication of this initial guidance from OSHA, a coalition of construction employer groups including the Associated General Contractors of America wrote to the Department of Labor (DOL) echoing Clark’s concerns in that the guidance may hinder vaccination efforts and that the statement on recording responsibilities may cause confusion and uncertainty for employers.6
The full OSHA revised guidance statement now reads:
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.4
Vaccine Reactions Must be Logged in OSHA Records if Mandated by Employer
According to The National Law Review, the initial OSHA guidelines would have considered adverse reactions to any employer-required vaccine as “work related” and stipulated that OSHA must be notified by employers within 24 hours of an employee’s vaccine-related hospitalization or death. The National Law Review also stated that if the COVID-19 vaccine reaction met less serious recording criteria, such as missing or restricted work, the incidents must still be recorded on the employer’s OSHA log.7
Workplaces Threaten Employees Who Refuse Vaccination with Dismissal
Employees who refuse the vaccine at certain workplaces may be suspended without pay and eventually terminated, as is the case with Houston Methodist Hospital which employs 26,000 people. Employees have until June 7 to receive the vaccine. According to MedPage Today, employees may still file for a religious or medical exemption through human resources. Houston Methodist is the first healthcare system in the United States to mandate the COVID-19 vaccine. In an e-mail shared with MedPage Today, Houston Methodist Hospital CEO Marc Boom wrote to hospital employees:
Science has proven that the COVID-19 vaccines are very safe and very effective… by choosing to be vaccinated, you are leaders—showing our colleagues in healthcare what must be done.3
This move has not come without pushback from the community and employees. Jennifer Bridges, RN of Houston Methodist Hospital started a change.org petition with over 8,000 signatures.3 The petition states: “We give our patients the right to reuse and we are just asking for the same respect.”9
Health Care Workers Describe Threats, Terminations at May 6 Legislative Hearing in Texas
In a special May 24, 2021 report published by the National Vaccine Information Center (NVIC) about the May 6 hearing in the Texas legislature on a bill to prohibit COVID-19 vaccine mandates by businesses and other state entities (SB1669), many healthcare workers testified in support of the bill.10 A number of the witnesses were currently employed or had been employed by Houston Methodist.
One nurse manager, Sarah Pica, RN, who is a mother of five, testified about how she was fired from Houston Methodist for refusing to take the experimental COVID-19 vaccine and described how other employees are also being threatened with job loss. She stated that in January 2021, Houston Methodist staff were paid $500 to get the COVID-19 vaccine but in April the experimental vaccine became mandatory. She explained:
The vaccine was no longer optional, but required to keep your job. Beginning with hospital leadership, anyone who did not receive the COVID vaccine, which is for emergency use only, was suspended for two weeks and terminated if they remained unvaccinated. I tested positive for COVID in December. I requested to have my antibodies drawn to demonstrate natural immunity provided after recovery from illness. My request was denied. I submitted medical and religious exemptions to receiving the vaccine. All of my exemptions were denied by the hospital panel and employment was terminated on April 30.10
She asked:
What right does one have to determine if another’s religious reason is valid or not?…Employers are bullying and oppressing us while the world watches the injustice, but does nothing. House Methodist is simply terminating anyone who declines or is unable to receive the vaccine. Now they’re informing staff they have until June 7 to receive the vaccine or suffer the same fate…10
FDA Code States that Recipients Must Have Option to Accept or Refuse EUA Products
All three COVID-19 vaccines available in the United States remain under Emergency Use Authorization (EUA) classification from the FDA. U.S. Code surrounding EUA products states that individuals to whom the product is administered should be informed of the following:11
- That FDA has authorized emergency use of the product;
- Of the significant known and potential benefits and risks associated with the emergency use of the product, and of the extent to which such benefits and risks are unknown;
- That they have the option to accept or refuse the EUA product and of any consequences of refusing administration of the product;4 6 and
- Of any available alternatives to the product and of the risks and benefits of available alternatives.
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