The U.S. Occupational Safety and Health Administration reversed course on employer-mandated COVID-19 vaccinations on May 21. OSHA also changed guidance that previously said employers should record all adverse reactions to required vaccinations.
The new guidance gives employers a roughly one-year period during which COVID-19 vaccination reactions will not be required to be reported by the agency. The agency's new online frequently asked questions page now reads:
"The Department of Labor 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."
Positive Reactions to OSHA Change
Positive reactions from contractors and groups representing the construction industry were swift. Arlington, Va.-based Associated General Contractors of America was pleased with the outcome, saying it was one change it had requested.
The Associated Builders and Contractors also supports the change. "ABC is pleased with this policy change and believes it is a positive development," said a statement from Greg Sizemore, ABC's vice president of health, safety, environment and workforce development. "On May 10, ABC, as a steering committee member of the Construction Industry Safety Coalition, wrote to the U.S. Department of Labor’s Occupational Safety and Health Administration urging it to review and revise its recently issued frequently asked questions."
There was general agreement from labor groups, with North America's Building Trades Unions National releasing a statement echoing the employer groups' reactions. "NABTU understands that several construction employer organizations protested the guidance from OSHA on recording vaccine reactions in cases where the employer doesn’t require the vaccinations," said Chris Cain, NABTU director of safety and health in a statement. "Incentives to encourage vaccinations could be interpreted as requiring them.
"We strongly support construction workers getting vaccinated and understand the concerns raised by employers," Cain continued. "Recording workers who have adverse reactions as being made ill by their jobs would erroneously flag such employers as having high injury and illness rates."
Cain's statement also noted that the industry "would be better served by broadly encouraging vaccinations and allowing for paid leave for those getting the vaccine and recovering from side effects." He also said that IRS tax credits were recently made available to employers of 500 or fewer workers to be reimbursed for paid paid leave.
No Comment Yet from OSHA
OSHA could not yet comment on the change in guidance. The agency is still waiting for new employer rules that go beyond a guidance to go through the Biden administration's Office of Management and Budget.
Jim Madrid, executive vice president at McCarthy Building Companies in Newport Beach, Calif., says the guidance is welcome and will help the contractor keep working at all its jobsites, but there is still a lot of uncertainty for contractors dealing with the issue of employee vaccination.
"We haven't done it (required employee vaccination yet), but part of it too, is the whole FDA approval process," Madrid says, referring to the process to approve any available COVID-19 vaccine as fully approved and not just for emergency use. "Until that happens, I think everybody's really reluctant to put that mandate out there."