Mandatory Vaccination Policies Could Implicate Workers’ Compensation
The details of workers’ compensation liability vary from state to state. However, the basic definition of a workplace injury is a personal injury that arises out of and in the course of employment. The employee bears the burden of proving a work-related personal injury.
If an employer mandates that its employees receive the COVID-19 vaccine as a condition of continued employment, it is likely to be considered a compensable injury if the employee suffers a severe reaction. In other words, an employer who demands COVID-19 vaccinations of employees has in turn made that activity a requirement of employment and any adverse reactions resulting would likely be a compensable work injury.
Some states, however, have specific laws addressing whether injuries resulting from vaccines are compensable under their workers’ compensation statutes. For example, in Minnesota, state law defines “personal injury” to include injuries that result from a mandatory vaccination policy: “‘Personal Injury’ means…an injury or disease resulting from a vaccine in response to a declaration by the Secretary of the United States Department of Health and Human Services under the Public Health Service Act to address an actual or potential health risk related to the employee’s employment is an injury or disease arising out of and in the course of employment.” Minn. Stat. § 176.011, subd. 16.
Even in a state without such a specific definition, employers would have difficulty arguing that adverse reactions to the COVID-19 vaccination did not arise out of and in the course of employment if the employee had no choice but to be vaccinated as a requirement of employment. An employer who requires its employees to receive a COVID-19 vaccination could be on the hook for medical treatment, lost time, and if the reaction results in long-term illness or death, the employer could be on the hook for ongoing wage loss, permanent partial disability and potentially dependency benefits. The employer could also have exposure for additional conditions that may develop as a result of adverse reactions to the vaccine.
Finally, because insurance policies differ, employers considering implementing a mandatory vaccination policy should also check with their insurance carrier to see if injuries and illnesses resulting from the vaccine are covered by their policy.
What If the Vaccine Is Not Mandatory, but is only Strongly Encouraged?
The outcome is less clear when the vaccination is encouraged and offered on a voluntary basis. In some instances, this could be considered a work-related situation that arises out of and in the course and scope of employment. Several factors might be considered in determining whether an injury from a voluntary vaccination policy is work-related, including:
- Whether the vaccination directly or indirectly benefited the employer;
- Whether the offering of the vaccine was within the terms, conditions, or customs of the employment;
- Whether the vaccination event was employer-sponsored;
- Whether the offering of the vaccine was unreasonably reckless or created excessive risk; and
- Whether the offering of the vaccine occurred on the premises of the employer.
Again, Minnesota has a specific provision that may apply to voluntary vaccination programs: “Injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties, and picnics, do not arise out of and in the course of the employment even though the employer pays for all of the costs of the program.” Minn. Stat. § 176.021, subd. 9. This exclusion would not apply if the Minnesota employer ordered employees to participate in the program.
Remember, the determination of whether any illness or injury resulting from an employee’s receipt of the COVID-19 vaccine will depend on the law of your state. However, if the employer’s policy is truly voluntary, then it will be less likely that any injury or illness resulting from a COVID-19 vaccination is consider a workplace injury.
Finally, employers should also be aware that many state laws prohibit employers from requesting or receiving “workers compensation waivers” from employees. Thus, even if an employee signed one, it would likely not operate to bar any workers’ compensation claims and could result in additional claims against the employer.
At this time, it is difficult to quantify the exposure and cost of a workers’ compensation claim relative to exposure and communication of the disease as opposed to exposure and cost for adverse reactions to the vaccination.
A key ingredient in this balancing approach is the realization that any directive by employers to employees that they must vaccinate against COVID-19 will likely give rise to workers’ compensation liability in the event of an adverse reaction. As with all issues relating to COVID-19, this is a fluid situation which could change if there is direct action by the legislature or the governor in determining whether adverse reactions become compensable workers’ compensation injuries.