COVID Vaccination Policies have Workers Compensation Implications
WORKERS COMPENSATION UPDATE (Read time – 3 minutes)
As you may know, Employers CAN require employees to get the Covid-19 vaccine (subject to exemptions related to ADA issues and religious objections). If the Employer can demonstrate that the vaccination is job-related and consistent with a business necessity, Employers can require all or even selected employees to obtain the Covid-19 vaccination as a condition of continued employment (subject to the ADA issues and religious objections).
But what are the Workers Compensation ramifications of such a requirement?
REACTIONS AND SIDE EFFECTS
First, if an Employer requires some or all of its employees obtain the Covid-19 vaccination, regardless of where the vaccination is obtained, any reaction or side effects from the vaccine would be considered a work-related condition.
This would similar to the recreational injury doctrine. If an employee is injured while participating in a voluntary recreational activity, there are possible defenses to that claim depending on the state where the injury occurs. However, if the Employer requires the employee to participate in that activity (like company picnics) and the employee is then injured, that injury would generally be considered compensable because the Employer required participation. The same reasoning would apply to a vaccine. This compensability analysis would most likely be the same even if the Employer merely encouraged the vaccination without actually requiring it.
Based on reports from those who have received the Covid-19 vaccine, reactions have been very similar to reactions from other virus-related vaccines – – either no reaction or mild reactions without lasting effects. Under this scenario, the anticipated workers comp exposure would either be $0.00, or possibly limited to short-term TTD benefits and perhaps nominal medical bills. PPD would presumably not be owed except in the most extreme cases.
MANDATORY VACCINATION AS A DEFENSE TO COMPENSABILITY
While Employers could potentially see some workers compensation claims related to reactions from a mandated vaccination, a vaccine mandate could also act as a defense to COVID-19 exposure claims. This would be particularly important in states such as Illinois that have a presumption of compensability law for employees who contract Covid-19.
Under the Illinois Workers Compensation Amendment passed during the summer of 2020, one of the ways Employers can rebut a presumption of compensability is to demonstrate compliance with public health guidelines in place at the time of exposure. If federal guidance encourages vaccination and the Employer’s vaccine policy is consistent with those guidelines, it could act as a defense to any Covid workers compensation claims in states like Illinois.
Employers need to come up with a plan that balances the needs and interests of the company with what is in the best interest of the workers. Some industries will determine that the vaccine will be mandatory, but companies may also want to have separate policies based on job duties. For example, an Employer could create a vaccination mandate for employees who work in close contact with the public but not those who are able to work from home.
Finally, Employers that mandate or even encourage vaccinations also need to have a process in place for tracking which employees have received the vaccine, if they’ve had both the initial shot and the booster at the appropriate time, or if they’ve signed an opt-out waiver for health or religious reasons. Having access to timely and accurate information will provide Employers with the best defense to any claims related to either Covid-19 or reactions to the vaccine.
If you have any questions about this or wish to discuss this further, feel free to call or email.