Today’s COVID-19 environment continues to present unique questions within the workers’ compensation industry. Initially, questions focused on compensability of what some qualify as an “ordinary disease of life.” Many states enacted presumption laws outlining specific professions or jobs that would automatically cover COVID-19 as a workers’ compensation claim, while other states allowed their current framework to determine this critical question. As progress dictates, we are now presented with the question of how the vaccination process – or more directly, employee participation in the vaccination process – will impact workers’ compensation.
First and foremost, we have to focus on safety. OSHA’s general duty clause, Section 5(1)(1) requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. On January 29, 2021, OSHA published its latest information regarding COVID-19 titled “Guidance on mitigating and preventing the spread of COVID-19 in the workplace.” The guidelines are described as containing “recommendations as well as descriptions of mandatory safety and health standards.” Among the many points noted under the elements recommended for an effective COVID-19 prevention program is the guidance that employers should be “making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.”
Vaccinations have typically been limited to the healthcare industry and educational environments. However, as noted in the above OSHA recommendation, many other employers will be considering vaccinations for their business. Although not the primary subject of this article, an initial question is whether an employer can mandate that employees participate in a vaccination process. The answer is…maybe. Aside from consideration for the specific circumstances of the employment and employee, there are several legal exceptions to any mandate, some of which are accommodations for disability, religion and pregnancy.
The question that naturally follows consideration of employee participation in the COVID-19 vaccination process is a “what if” scenario. If an employee has a reaction to the vaccine, will the employer be responsible for medical treatment and/or disability benefits for time missed from work under workers’ compensation?
Specific laws, regulations or guidance as to compensability under workers’ compensation for adverse vaccine reactions for COVID-19 have yet to be established. However, we do have the benefit of this issue being addressed for other vaccinations.
Larson’s Workers’ Compensation Law, considered the foremost treatise on workers’ compensation, states: When inoculation is occasioned by the particular conditions of employment, injury resulting from the inoculation should be deemed to have occurred in the course of employment. If there is an element of actual compulsion emanating from the employer, the work connection is beyond question, as when the company requires the employee to submit to vaccination by the company's doctor as soon as the employee is hired, or during an epidemic tells the workers that unless they are vaccinated they cannot work until the epidemic is over. By equal logic, just as an employee on an overseas assignment is entitled to associate the contraction of malaria or polio or tuberculosis with the nature of the work, so any harm stemming from inoculations undertaken to protect against the risks of overseas diseases, whether the inoculations were strictly required or not, should be viewed as flowing directly from the employment.
Numerous states have addressed the question of adverse vaccine reactions and workers’ compensation for diseases such as smallpox, influenza and measles. Side effects allegedly caused by vaccinations have been found to be covered under workers’ compensation, especially if mandatedby the employer, for the states of: Alabama, Louisiana, New York, California, Massachusetts, North Carolina, Colorado, Michigan, Ohio, Connecticut, Minnesota, Pennsylvania, Florida, Mississippi, South Carolina, Illinois, Missouri, Texas, Indiana and New Jersey.
Outside of the preceding states, the specific state workers’ compensation law regarding participation in employer-sponsored social activities and injuries arising out of those activities can provide guidance as to coverage under workers’ compensation for adverse reactions to COVID-19 vaccinations. With employer-sponsored social activity injuries, the compensability determination usually centers on the degree of employer involvement with the activity. If the social activity provides a mutual benefit to the employer and the employee, the courts will likely lean towards deciding in favor of the injured worker. This direction would indicate that for vaccination reaction claims, where the vaccination was mandated or strongly encouraged by the employer, the courts are likely to lean towards the reaction being covered under workers’ compensation.
Considering the heightened awareness to all things related to COVID-19, it is reasonable to assume that state legislatures and courts will be providing a direct answer to this question in the near future. It is certainly an issue we will continue to monitor closely in the coming months.
Watch Sedgwick’s channels for additional support and perspective from our thought leaders as vaccine questions are answered.
> Read our press release on Sedgwick’s vaccination tracking program for employers
> Visit our COVID-19 update center for the latest coronavirus news and resources from Sedgwick