New guidance from the Occupational Safety and Health Administration (OSHA) is making employers think twice about their COVID vaccine requirements.
On April 20, companies were put on notice they'll be responsible for any adverse reaction should they require their employees be vaccinated with a COVID vaccine.
In the Frequently Asked Questions section of OSHA's website having to do with COVID safety compliance, a question was asked whether an adverse reaction to a COVID vaccine had to be recorded if an employer mandated vaccination as a condition for employment.
OSHA stated:
"If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7."In general, an adverse reaction to the COVID vaccine is recordable if the reaction is: (1) work-related, (2) a new case and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).
According to OSHA, recording requirements of serious work-related injuries and illness may leave employers with worker's compensation claims and impact their safety record.
Conversely, OSHA states it will exercise enforcement discretion and will not require adverse reactions be recorded when an employer only "recommends" that employees receive the vaccine, while noting that for this discretion to apply, the vaccine must be truly voluntary.
In determining whether a vaccine is "voluntary," the website states, "an employee's choice to accept or reject the vaccine cannot affect [his or her] performance rating or professional advancement," and that an "employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice."
If employees are not free to choose whether or not to receive the vaccine without fearing negative recourse, then the vaccine is required and employers should refer to the section on COVID vaccines as a condition to employment.
In response to the news that COVID vaccine adverse reactions suffered by workers are reportable incidents, or incidents that count against a company's safety record, several large contractors said they have changed or will change their vaccination policy to only recommend โ not require โ a vaccine.
Construction firm Clayco stepped back from a previously announced firm-wide vaccine mandate in response to the recent federal guideline.
"We, sadly, had to back off our [employee vaccination] mandate because OSHA did something I don't understand at all," said Bob Clark, founder and executive chairman of Clayco in a recent ENR Critical Path podcast. "I side with OSHA frequently, we're in its VIP program, but on this they're just wrong. It's a terrible decision they've made and I think it'll be overturned."
"What they put forward could potentially discourage employers from supporting their workers getting the vaccine," said Kevin Cannon, senior director of safety and health services at the Associated General Contractors of America (ACG).
ACG is not in support of any vaccine mandate, however the company participated in vaccine awareness week in April and hosted vaccine clinics on an active job site and in its offices.
Cannon said some contractors may have changed their approach to those events had they known, at the time, they could potentially "be on the hook for recording these potential adverse reactions."
All businesses and institutions will be very reluctant to mandate vaccinations if OSHA says adverse reactions count as reportable against a company's "experience modification rate." It's honestly ridiculous, Clark said.
An experience modification rate, or EMR, is a safety rating insurers use in calculating workers' compensation. Part of the calculation includes reportable incidents โ a higher number of reportable incidents damages the company's safety ratings and could hike up the price of insurance, St. Louis Business Journal reported.
Clark noted that Clayco wants to set an example and plans to challenge the guidance through lobbying and outreach to senators, and it's not alone in that effort. The company also will continue to strongly encourage employees to get vaccinated, log which employees do and are considering "vaccinated only" areas within its workspace.
According to the National Law Review, employers may want to make it clear in communications to employees whether COVID vaccines are required or voluntary.
Employers may also consider circumstances in which OSHA will investigate an employer's record keeping practices. If an employer's vaccination program is voluntary, an employer may not have any entries resulting from adverse reactions. Under those circumstances, OSHA will have to ask the employer about the vaccination program and whether any employee suffered an adverse reaction.
Employees may be more likely to make a complaint to OSHA when they have been denied time off for an illness that they consider to be work-related, which means post-vaccination paid time off may be helpful.
Although OSHA is facing scrutiny for its guidance, it is consistent with the U.S. Food and Drug Administration's Emergency Use Authorization (EUA), which requires any product with this designation to be voluntary. Currently, Pfizer, Moderna and Johnson & Johnson are only approved for emergency use.
As reported by The Defender, this was reiterated in August 2020 at a Centers for Disease Control and Prevention (CDC) published meeting of the Advisory Committee on Immunization Practices, where its executive secretary, Dr. Amanda Cohn, stated:
"I just wanted to add that, just wanted to remind everybody, that under an Emergency Use Authorization, an EUA, vaccines are not allowed to be mandatory. So, early in this vaccination phase, individuals will have to be consented and they won't be able to be mandated."About the author
Megan Redshaw is a freelance reporter for The Defender. She has a background in political science, a law degree and extensive training in natural health.
Reader Comments
The entire premise of needing these shanks is false! This is insane.
By the way, under the USA HIPAA laws, an employee cannot be forced to disclose any health information to an employer...including vaccine status. So, just sue them for $Millions and never have to work again.
Central theme: Global Human Infertility
I don't know what to make of all of the Hollywood stuff effectively predicting what's been going on. (Simpsons did? Lots of the industry did.) I'm sure a lot of folks there are just being used and don't even care to awaken themselves to the world other than the BFM's world. There's also the fact that for the past twenty years, no person like a Clint Eastwood, or Ronald Reagan would EVER have a chance with these sorry malevolents in the first place.)
Beyond that, the second they speak up, their careers are destroyed; (as planned, I'd guess) it's just like McCarthyism's redbaiting 'scandals.' I imagine that those on what they stupidly perceive as the left (when they're simply being useful idiots), want some 'payback.'
RC
*Collapsing towers.
rc
First, federal law prohibits any mandate of the Covid-19 vaccines as unlicensed, emergency-use-authorization-only vaccines. Subsection bbb-3(e)(1)(A)(ii)(III) of section 360 of Title 21 of the United States Code, otherwise known as the Emergency Use Authorization section of the Federal Food, Drug, and Cosmetic Act, demands that everyone give employees the "option to accept or refuse administration" of the Covid-19 vaccine. ( [Link] )
This right to refuse emergency, experimental vaccines, such as the Covid-19 vaccine, implements the internationally agreed legal requirement of Informed Consent established in the Nuremberg Code of 1947. ( [Link] ).
As the Nuremberg Code established, every person must "be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision" for any medical experimental drug, as the Covid-19 vaccine currently is. The Nuremberg Code prohibited even the military from requiring such experimental vaccines. (Doe #1 v. Rumsfeld, 297 F.Supp.2d 119 (D.D.C. 2003).
Secondly, demanding employees divulge their personal medical information invades their protected right to privacy, and discriminates against them based on their perceived medical status, in contravention of the Americans with Disabilities Act. (42 USC ยง12112(a).)
Third, conditioning continued employment upon participating in a medical experiment and demanding disclosure of private, personal medical information, may also create employer liability under other federal and state laws, including HIPAA, FMLA, and applicable state tort law principles, including torts prohibiting and proscribing invasions of privacy and battery. Indeed, any employer mandating a vaccine is liable to their employee for any adverse event suffered by that employee. ( [Link] ).
The CDC records reports of the adverse events already reported to date concerning the current Covid-19 vaccine.( [Link] )
With Regards,
Employee of the Year
Good finds below.
RC
[Link] org/stream/HowToRaiseAHealthyChildInSpiteOfYourDoct orMendelsohn/Ebook_How-to-raise-a-healthy-child-in-spite-of-your-doctor-pdf_Mendelsohn_djvu.txt
Maybe that'll work, just remove the space after "archive."
Otherwise you can go here [Link] and it's the third link down that says Full text of "How to Raise a Healthy Child by Robert Mendelsohn".
They planned for 50 state/federal vax passports from day 1. This is how NY rolled out ExcelsiorPass and Oregon was able to do so as well. Any state can basically flip a switch to do this.
Search "<state name> COVID-19 vaccination plan", download the pdf from that state gov website and read how they are recording all the administration data in their IIS and interfacing with the federal IZ Gateway.
My instincts tell me that "May be" will win the day