GREENSBORO, N.C. — Tyson Foods, Hanes Brands and several healthcare providers -- like Cone Health, Novant Health and Atrium Wake Forest Baptist Health -- are on a growing list of companies mandating the COVID-19 vaccine for employees.
Viewer Darryl Whitaker messaged the VERIFY team asking if it's true a company could be held liable with OSHA, if the company required employees to take the COVID-19 vaccine. He included a screen shot, appearing to be from the OSHA website, stating, "...If you require employees to get vaccinated as a condition of employment, you must record adverse reactions to the COVID-19 vaccine..."
- Occupational Safety and Health Administration (OSH, OSHA)
- Jennifer Haigwood - NC Dept. of Labor Director of Communications
- Darren Howard - Dummit Fradin Attorney at Law
The claim OSHA is requiring companies to report mandated vaccine side effects is false, but that should not affect an employee's ability to file a worker's compensation claim -- it'll just be difficult to win.
WHAT WE FOUND
The answer is layered. First, OSHA -- it sets and enforces standards for safe and healthy working conditions. NC Dept. of Labor communications director Jennifer Haigwood explained OSHA issues citations and penalties to OSH-regulated companies who fail to report work-related fatalities and hospitalizations. And, until recently, they were required to report adverse COVID-19 vaccine reactions, too.
But, in the time since viewer Whitaker sent in his question, OSHA updated its guidelines on adverse reactions to company-mandated vaccines. The FAQ page now explains, "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..."
That's why OSHA no longer is enforcing 29 CFR 1904's recording requirements to require workers to record worker side effects from COVID-19 vaccination. OSHA states this policy will remain in place through May 2022.
So, what does this mean for you, the employee? OSHA regulates companies, not employees. So, you could try to file a state worker's compensation claim, if you miss work for a bad reaction to a company-mandated COVID-19 vaccine. But, you might not win the case.
Dummit Fradin attorney at law Darren Howard explained:
"...If somebody does receive the vaccine, because it was mandated by their workplace, and that individual -- if they were to experience negative side effects down the road -- that, in my opinion, is not going to be a (worker's compensation) claim in NC. That would be an individual claim or, perhaps, even a class action claim against the pharmaceutical company that developed the drug itself or the vaccine..."
And, remember, most states -- including North Carolina -- are 'employment at will' states, meaning employers can mandate employees to do certain tasks -- like get the COVID-19 vaccine.
The claim OSHA is requiring companies to report mandated vaccine side effects is false. They don't have to do that, through next spring, because OSHA's stated priority is to encourage vaccinations.
And, while you, the employee, can pursue other avenues of liability -- like worker's compensation -- decide if it's worth the time and cost for potentially little-to-no payout.
Howard noted you're far more likely to hold an employer accountable, if you can prove you contracted COVID-19 in the workplace. That's why you could see more companies mandate or at least incentivize the vaccine.
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