On Sept. 27, 2021, we posted about Ohio House Bill 401 and the potential for employers to lose workers’ compensation immunity for injuries incurred as a result of a mandatory vaccination. The bill would create a separate cause of action under Ohio law for persons allegedly injured as a result of an employer-mandated COVID-19 vaccine.

On Oct. 7, 2021, the Ohio House Labor and Commerce Committee held its second informal hearing on a separate but related piece of legislation, House Bill 435. The bill expressly provides that an injury covered under the Ohio Workers’ Compensation Act includes an injury or disability caused by an employer-mandated COVID-19 vaccine.

vaccine representing workers' compensation claim due to injury due to mandated vaccination

If adopted as written, a person cannot receive workers’ compensation for an injury caused by an employer-mandated COVID-19 vaccine if the person receives compensation for the same injury under the federal Vaccine Injury Compensation Program (VICP) or the Countermeasures Injury Compensation Program (CICP). This would apply to claims arising during the period between the bill’s effective date and June 30, 2023, the bill’s sunset date.

If an individual receives compensation or benefits under the Ohio Workers’ Compensation Act and compensation under either federal program, the bill would allow the administrator of the Bureau of Workers’ Compensation or a self-insuring employer to collect both of the following from the individual:

  • The amount of compensation or benefits paid to or on behalf of the person by the administrator or the self-insuring employer pursuant to the Ohio Workers’ Compensation Act; and
  • Any interest, attorney’s fees and costs the administrator or the self-insuring employer incurs in collecting that payment.

We will continue to monitor the status of this and other related legislation as Ohio attempts to navigate the ongoing questions surrounding the COVID-19 pandemic. As always, employers should seek counsel when implementing any new programs that directly impact their employees.