As 'emergency' workplace vax mandate looms, OSHA guidance stems flow of adverse reaction reports

Hoping to avoid "any appearance of discouraging" vaccination, feds suspend employer requirement to report COVID vaccine side effects.

Published: November 1, 2021 12:35pm

Updated: November 2, 2021 3:58pm

The Occupational Safety and Health Administration is tacitly encouraging employers to hide "adverse reactions" from COVID-19 vaccines, even as 80 million private workers face jab-or-job decisions due to an impending federal mandate that OSHA has fast-tracked under rarely used, special emergency powers.

The Department of Labor's pledge Monday to publish an "emergency temporary standard" on COVID vaccine mandates "in the coming days" threatens to worsen the skewed picture federal regulators have been getting from employers for five months.

OSHA abruptly reversed its directive to employers this spring on how to handle adverse reactions to COVID vaccines among their workforce.

Its FAQ page originally told them to report adverse reactions that are "work-related," new, and cause missed or restricted work, transfers or "medical treatment beyond first aid." The work-related prong automatically applied to employers who required employees to be vaccinated.

While employers who only recommend vaccination to employees didn't have to report adverse reactions, "the vaccine must be truly voluntary," with no repercussions to employees who choose against vaccination.

The agency cited a federal regulation known as part 1904, which requires employers to "record and report work-related fatalities, injuries, and illnesses."

Those directions disappeared May 21 and have remained unchanged since, telling employers that enforcement is suspended at least through May 2022, at which point OSHA will reevaluate.

Because the Department of Labor and OSHA "are working diligently to encourage COVID-19 vaccinations," OSHA is avoiding "any appearance of discouraging workers" from vaccination or disincentivizing their employers' vaccination efforts, the revised FAQ page says. Therefore, it will not enforce part 1904 at all in the context of COVID vaccines.

The department and OSHA did not respond to Just the News queries about whether and how the pending federal mandate could further distort the picture they are getting from private employers on adverse reactions from vaccines.

"It is outrageous for a 'safety' agency to ignore rules that would uncover health harms that will come from their own vaccine mandate," Roger Severino, former civil rights director at the Department of Health and Human Services (HHS), wrote in an email.

OSHA is "actively imped[ing]" the Vaccine Adverse Event Reporting System maintained by HHS, which is designed to "catalogue vaccine harms for the sake of improving public health and future guidance," Severino told Just the News. He's now with the Ethics and Public Policy Center, which met with OSHA officials last month to discuss concerns.

"I am unaware of previous instances in which OSHA announced that employers would not have to report certain employee health events," labor lawyer Keith Wilkes of Hall Estill wrote in an email when asked how novel the agency's action was. Even employer-encouraged vaccination is "uncharted territory."

But the exemption is a "welcome reprieve to employers" because their insurance could have jumped based on recordkeeping logs of adverse reactions to vaccines, which have "little to no correlation" with an unsafe workplace, he told Just the News.

Unvaccinated employees, by contrast, "are perceived as creating the greater risk to the health and safety of a workplace," Wilkes wrote.

President Biden's September press conference calling for COVID vaccine mandates across the federal public sector and large private employers, together affecting 100 million workers, drew renewed attention to the five-month-old revision last month. 

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The Federalist noted OSHA still encourages employees to file complaints when they believe their employer has exposed them to COVID or is "not taking appropriate steps to protect you from exposure."

While large employers can alternately test employees for COVID weekly in lieu of required vaccination under Biden's plan, that's a far more expensive proposition.

More than half the states, through their governors or attorneys general, promised to fight the federal mandate in court soon after Biden proposed it. Republican AGs further argued two weeks ago it's not enforceable until the mandate takes effect.

The Department of Labor said Monday that the Office of Management and Budget had completed its review of the standard, the last hurdle before it can be published in the Federal Register.

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