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The purpose of the OSHA Federal Regulation located at 29 CFR 1904 is to require employers to record and report work-related fatalities, injuries, and illnesses.

Section 1904.5(a) states “Basic requirement. You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in §1904.5(b)(2) specifically applies.”

Section 1904.5(b)(1) says What is the “work environment”? OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment. The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.”

So are adverse reactions to an employer’s mandated COVID-19 vaccine recordable on the OSHA recordkeeping log? Looking further in the regulation are the exceptions. One of them might apply.

1904.5(b)(2) You are not required to record injuries and illnesses if . . . 1904.5(b)(2)(iii)The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball.

However this exception does not seem to apply since a “mandated” COVID vaccination is not “voluntary,” one of the conditions of the above exception.

It still might raise an employer’s concern, had not this exact question been answered by the OSHA Coronavirus FAQ on this regulation, which 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 at least through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.

By using the word “any” in the FAQ, the temporary excuse until at least May 2022 it would seem to imply to both voluntary or mandatory COVID-19 vaccination adverse reactions, although the wording of this FAQ could have been more clearly written.

Nonetheless, this sua sponte OSHA decision to forgive a component of regulatory oversight is puzzling and questionable. The stated purpose of OSHA is to regulate workplace safety. President Biden has announced his intent to mandate COVID-19 vaccinations. Yet his agency in charge of monitoring safety does not want to know about any adverse effect of the vaccination. Thus if it ends up in the long run to be unsafe, the documentary trail would then be obscured, in what should be a transparent governmental agency.

Employees across the nation are voicing their concerns about the safety of the COVID-19 vaccination. This clause in the FAQ will no doubt trigger their suspicions, rather than calm them down.