As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability.
Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:
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.
This is welcome news and will help facilitate employers’ proactive efforts to protect employees and maintain a safe workplace.
Ohio workers’ compensation law, however, is not so clear. In 1934, the Ohio Supreme Court held in Spicer Mfg. Co. v. Tucker that an employee’s death resulting from a smallpox vaccination was covered under the Workers’ Compensation Act. The decision was based primarily upon the fact that the employer required the employee to obtain the vaccine as a condition of continued employment.
Scant precedent since the Spicer decision includes the 2016 Eighth District Court of Appeals decision in Rolsen v. Walgreen Co. In Rolsen, an employee filed a workers’ compensation claim after experiencing adverse symptoms from a pneumonia vaccine. The court of appeals held that the illness was not sustained in the course of employment since the vaccine was encouraged but not required by the employer. The court of appeals arrived at this conclusion despite the fact that the employee received the vaccine on the employer’s premises during the employee’s working hours.
Ohio Industrial Commission decisions vary and do not provide a great deal of guidance to employers. However, careful implementation of a vaccine policy can substantially mitigate an employer’s workers’ compensation liability for adverse reactions. For assistance in developing such a policy and for the latest OSHA updates, please contact BMD Labor + Employment Member Stephen Matasich at sematasich@bmdllc.com.