Can Businesses Have Workers’ Compensation Liability for Vaccine Mandates? Yes, is the Short Answer.

Article At A Glance:

• An employee may have a workers’ compensation claim for adverse reactions to an employer-mandated vaccine.
• An employer may have increased workers’ compensation liability if the vaccine is provided by the employer, given at the workplace, or made available during work hours.
• Should employers require their employees to get the COVID-19 vaccine? This is a decision varying by industry, but many employers are opting not to mandate vaccination. The vaccine is still in the Emergency Use Authorization (EUA) phase, meaning it is not approved for full licensure by the Food and Drug Administration (FDA).
• In May 2021 guidance, the Equal Employment Opportunity Commission (EEOC) stated that employer-mandated COVID-19 vaccination programs are legal if employers give religious accommodations to employees under Title VII and disability accommodations under the Americans with Disabilities Act (ADA), among meeting other rules.
• Employers must have a business necessity for vaccine mandates, and the mandate must relate to an employee’s job.

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Many employers are deciding whether to mandate COVID-19 vaccination. In its May 2021 guidance, the Equal Employment Opportunity Commission (EEOC) stated that employer-mandated COVID-19 vaccination programs are permissible if there are reasonable accommodations under Title VII, the Americans with Disabilities Act (ADA), and other EEO considerations. Employers should know that a mandatory vaccine program could expose them to workers’ compensation liability for adverse vaccine reactions.

Workers’ compensation laws vary by state. Generally, workers’ compensation can cover injuries that arise out of and in the course of employment. If an employer mandates vaccinations and an employee has an adverse reaction, the adverse reaction could be covered under workers’ compensation. An employee’s workers’ compensation claim is even stronger when the employer provides the COVID-19 vaccine, a third-party administers the vaccine on the employer’s premises, or a third-party administers the vaccine during work hours.

Some states, such as Connecticut, New York, and New Jersey, have explicitly provided for adverse vaccine reactions in their workers’ compensation laws. In these states, workers’ compensation covers adverse reactions to a vaccine, especially if the employer required the vaccine, for diseases such as smallpox and influenza. Lipp Law is in the DMV (DC, MD, VA) area; Virginia and Maryland do not explicitly address whether workers’ compensation covers adverse vaccine reactions, however, these states may find workers’ compensation coverage for these reactions when the vaccination provides a mutual benefit to the employer and employee. In the case of a COVID-19 vaccine mandate, a court may find that the employer benefits in the form of protecting their health and the health of other employees and customers.

In sum, employers may implement workplace COVID-19 vaccine mandates, but they should only do so after considering the potential legal risks. These mandates may give rise to workers’ compensation claims if an employee experiences adverse vaccine reactions. Some states specifically provide that adverse vaccine reactions, especially when the employer requires the vaccine, are workplace injuries and covered by workers’ compensation. In these states, employees may be able to file a workers’ compensation claim if their employer requires the COVID-19 vaccine and the employee experiences adverse side effects after receiving the vaccine. Other states provide that workers’ compensation covers injuries resulting from an employer-sponsored activity that benefits the employee and employer. In these states, courts may find that workplace COVID-19 vaccine mandates benefit the employer and employee, and workers’ compensation thus covers adverse vaccine reactions. Employers should be aware of the potential workers’ compensation liability resulting from workplace vaccine mandates, and the possibility of change in this area if state legislatures or governors decide to implement new requirements.

If you are an employer with questions about vaccine mandates, please don’t hesitate to contact Lipp Law for guidance.