On April 20, 2021, the Department of Labor Occupational Health and Safety Administration (OSHA) issued guidance related to adverse reactions after receiving a COVID-19 vaccination.  According to the guidance, an adverse reaction to the COVID-19 vaccine is recordable in the OSHA record-keeping log if the reaction is: 1) work-related; 2) a new case, and 3) meets one or more of the general recording criteria described in 29 CFR 1904.7 such as,

  1. a) results in an employee missing  more than one day of work;
  2. b) results in restricted work or transfer to another job; or
  3. c) requires medical treatment beyond  first aid.

An adverse reaction is work-related if an employer requires employees to be vaccinated as a condition of employment.  At this time, OSHA is exercising its enforcement discretion to not require an adverse reaction to be recorded if an employer recommends but does not require the COVID-19 vaccination. This exercise of discretion applies only if the vaccination is truly voluntary and applies regardless of whether the employees may receive the vaccine at the worksite or at an offsite location arranged by the employer, or where the vaccine is offered as part of a voluntary health and wellness program at the workplace.

In other news, OSHA formally submitted to the Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA) a draft of the COVID-19 Emergency Temporary Standard (ETS) designed to protect workers from the transmission of COVID-19 in the workplace. Review of the ETS by OIRA is the final step in the approval process before the rule is released to the public. It’s unclear how long the review process may last. We will continue to monitor the status of the ETS and provide updates as they become available.

If you have questions about OSHA guidance regarding COVID-19 or other issues regarding workplace safety, contact Donna Pryor or your Husch Blackwell attorney.

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Photo of Donna Pryor Donna Pryor

A member of Husch Blackwell’s Energy & Natural Resources group, Donna focuses on commercial and administrative litigation related to mine safety and occupational safety and health. She also assists clients in crisis management and strategic communications related to workplace health and safety issues.…

A member of Husch Blackwell’s Energy & Natural Resources group, Donna focuses on commercial and administrative litigation related to mine safety and occupational safety and health. She also assists clients in crisis management and strategic communications related to workplace health and safety issues.

Donna has extensive experience in the production of precious metals, aggregates, cement, industrial minerals, coal, salt, potash, phosphate, granite, limestone, and oil and gas. She combines her legal skills and government knowledge with her litigation prowess for clients facing complex problems.

Photo of Tracey O'Brien Tracey O'Brien

Tracey focuses on assisting federal contractors, including healthcare, life sciences and education clients, in compliance with employment laws and regulations.

She co-leads the firm’s OFCCP and affirmative action compliance team, which uses data analytics to assess federal contractors’ employment and personnel processes and

Tracey focuses on assisting federal contractors, including healthcare, life sciences and education clients, in compliance with employment laws and regulations.

She co-leads the firm’s OFCCP and affirmative action compliance team, which uses data analytics to assess federal contractors’ employment and personnel processes and compensation systems for compliance with OFCCP regulations. She strategically designs and prepares written affirmative action plans using a bifurcated approach that provides clients with additional confidential analyses and narratives protected by the attorney-client privilege. She further assists clients with other OFCCP obligations, including implementation of outreach and recruitment efforts in conjunction with placement goals, applicant tracking issues, review of job descriptions, and other support and guidance to ensure compliance and minimize the risk of the liability in the event of an audit.