The attorneys behind the Employer Law Report Blog present the second blog in our three-part series on the COVID-19 vaccine and employer considerations.
The COVID-19 vaccination process has begun in the U.S., but at this point, the COVID-19 vaccine is not widely available to most employees. As explored in Part 1 of our series on the COVID-19 vaccine, many employers are deciding whether to require or incentivize their employees to obtain the vaccination. In addition to the issues raised in those posts, employers need to consider the implications of the workers’ compensation system in developing vaccination policies and procedures.
If employers mandate that their employees obtain vaccinations and an employee suffers an injury during the process of obtaining the vaccination, it is likely to be considered a compensable claim. Further, if an employee has an adverse reaction to the vaccination or any other complication arising out of the vaccination, it is also likely to be considered a compensable claim.
Likewise, if an employer does not require employees to be vaccinated but strongly encourages it – such as by paying employees to obtain the vaccine or providing the inoculations onsite – and an employee suffers an injury while receiving the vaccine or suffers an adverse reaction, it is likely to be considered a valid workers’ compensation claim.
Employers may decide that the risk of an uptick in workers’ compensation claims is outweighed by the benefit of having an inoculated workforce and presumably fewer instances of employees contracting the virus. There may be other benefits in mandating or incentivizing vaccination. In some states, employers may be able to point to their vaccination policy as an additional measure to protect employees from the virus, which may provide an additional defense to COVID-19 exposure claims.
Another consideration for employers is whether to notify their employees that any harmful side effects may be covered by the workers’ compensation system. On the one hand, this may encourage employees to be vaccinated and create a healthier work environment. On the other hand, highlighting potential side effects of the vaccine may heighten some employees’ reluctance to be vaccinated.
People who suffer an adverse reaction to COVID-19 vaccinations may file claims outside of the workers’ compensation system with the federal Countermeasures Injury Compensation Program (https://www.hrsa.gov/cicp). The program may be more challenging to navigate and may award lower payments than the workers’ compensation system. Further, the program is a payer of last resort and may not reimburse costs that are or should be covered by the workers’ compensation system.
Overall, employers should weigh the benefits and potential liabilities before mandating employees obtain the COVID-19 vaccination.
To read the first blog in our series, “COVID-19 vaccine for employees: Can you require it? Should you require it? Can you offer incentives to encourage it?,” by Jyllian Bradshaw and Avi Allen, click here. The third and final installment of this blog series will be posted on Tues., March 2 and addresses employer wellness programs guidelines and the COVID-19 vaccine.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.