New Employment-Related COVID-19 Developments

There have been two significant COVID-19 related developments important to employers in the last few days.

Here are summaries:

OSHA Issues Guidance on Recording Adverse Impacts from COVID-19 Vaccination

On April 20, OSHA issued three new FAQs in its COVID guidance addressing an employer’s responsibility to record (or not) adverse reactions to the COVID-19 vaccination.

This is the information it provided:

In general, an adverse reaction to the COVID-19 vaccine is recordable if the reaction is:

1. Work-related
2. A new case
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).

If an employer requires its 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.

If an employer does not require its employees to be vaccinated but does recommend they receive it and take steps to either provide it to them or arrange for transportation for them to get it, an adverse reaction is not recordable. OSHA says that although adverse reactions to recommended COVID-19 vaccines may be recordable under 29 CFR 1904.4(a) if the reaction is:

1. Work-related
2. A new case
3. Meets one or more of the general recording criteria in 29 CFR 1904.7.

OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, an employer does not need to record adverse effects from COVID-19 vaccines that it recommends but does not require.

This is a good time for a reminder that in circumstances where the employer contends a reaction is not recordable because the vaccination is not required, it will be important for the employer to be able to show that the vaccination was truly voluntary, meaning the employee had free choice to accept it or not and was not pressured into accepting the vaccine through impact on performance reviews or advancement, or adverse action, implied or otherwise.

New Tax Credit for Paid Vaccination Leave

On April 21, the White House issued a Fact Sheet notifying small employers that part of the American Rescue Plan Act enacted on March 11, 2021, is a tax credit for providing employees with paid leave to obtain a COVID-19 vaccine. The document can be found at www.whitehouse.gov/briefing-room.

Our readers will recall that the American Rescue Plan Act addressed potential tax credits that employers covered by the FFCRA can receive if they voluntarily provide paid COVID-19-related leave to employees beyond the expiration of the FFCRA and through September 30, 2021.

In addition to continuing some of the rights employees were entitled to under the FFCRA, the Act added a few categories as well.  One of those new categories of coverage was a tax credit for time spent receiving a vaccine and to recover from any adverse effects from a vaccine.

The White House Fact Sheet described this as follows:

“President Biden is calling on every employer in America to offer full pay to their employees for any time off needed to get vaccinated and for any time it takes to recover from the after-effects of vaccination. He will announce a paid leave tax credit that will offset the cost for employers with fewer than 500 employees to provide full payment for any time their employees need to get a COVID-19 vaccination or recover from that vaccination.”

The Fact Sheet clarifies that a paid leave tax credit “will offset the cost for businesses and nonprofits with fewer than 500 employees for up to 80 hours (i.e. 10 workdays) up to $511 per day of paid sick leave offered between April 1 and September 30, 2021. This tax credit will allow these employers to provide paid leave for employees to get a COVID-19 vaccination and for any time their employees may need to recover from that vaccination at no cost to the employer.”

In conjunction with this announcement, the IRS issued its own fact sheet that explains the amount of the tax credit and how an employer can claim it. This can be found at www.irs.gov/newsroom.