As has been discussed in the news, the creation of COVID-19 vaccines in such a short period of time is unprecedented. The emergency approvals of vaccines for COVID-19 provide a glimmer of hope for a return to normalcy. With vaccines being distributed in waves across the country, many employers are grappling with the issue of whether to require their employees be vaccinated. We take a moment to examine whether an employee who receives the vaccine is covered for workers’ compensation if the employee has a bad reaction to the vaccine.
Note: The information contained in this blog is not intended to be construed as legal advice regarding any situation. The facts and circumstances of every potential workers’ compensation, employment practices liability and general liability claim, as well as the language in policies will determine coverage. Members should consult with their brokers, legal advisors, and others on vaccination potential risks.
When might reactions to the COVID-19 be found to be industrial?
As a general rule, preventative care or the effects of preventative care, are not covered under the Workers’ Compensation Act. That said, a vaccination may be found to arise out of employment where it is done pursuant to the direction of or for the benefit of the employer. (Maher v. Workers; Comp. Appeals Bd. (1983) 33 al.3d 729, 734-35.) In most situations, the determination of whether a reaction to a vaccine is compensable under the workers’ compensation system will depend upon the facts of the claim.
The courts will likely find a reaction to a COVID-19 vaccine industrial if the employee can demonstrate that the employer required, mandated or incentivized the employee to obtain the vaccine for the benefit of the employer. Although a gray area, it is quite possible that the WCAB would also find a reaction to the vaccine to be compensable even if the employer does not mandate employees be vaccinated, but instead strongly encourages vaccination. Similarly, if an employer helps facilitate vaccination, then, depending upon the facts of the case, it could result in workers’ compensation liability. On the other hand, if the employer merely provides information on vaccination (such as when and where vaccination can be obtained), then a resulting injury would probably not be compensable.
In an effort to promote workplace safety, we recommend employers advise their employees of their eligibility for the vaccine and provide resources regarding the vaccines so that employees can make their own informed decisions on whether or not to be vaccinated. In addition, we recommend that it be made clear to employees that whether or not they decide to be vaccinated is their personal decision and is strictly voluntary. When advising employees of vaccine availability, you may include information and resources of where they can obtain the vaccine (e.g. reference to the state’s vaccination plan, their personal physician or medical group, the local county public health department).
Workers' Comp: COVID-19 Vaccine – PRISM Coverage
The EWC Program Memorandum of Coverage (MOC) provides coverage for injuries and benefits pursuant to the Workers’ Compensation Act. Based on current law, the cost to administer the vaccine is not covered under the MOC. With regard to claims for adverse reactions to a vaccine, whether there is coverage under the EWC MOC will have to be evaluated on a case by case basis.
If an employee has a reaction to a COVID-19 vaccination, the federal program entitled The Countermeasures Injury Compensation Program (CICP) may help pay for costs of medical care and other specific expenses of certain people who have been seriously injured by certain medicines or vaccines, including this vaccine. Generally, a claim must be submitted to the CICP within one (1) year from the date of receiving the vaccine. To learn more about this program, visit www.hrsa.gov/cicp/ or call 1-855-266-2427.