By Cheryl Howland Bowsfield, Senior Defense Counsel with Lynn, Scharfenberg and Hollick
As we move into 2021, COVID-19 continues to present new and ever changing challenges. The COVID-19 vaccinations began with the highest risk populations and frontline workers in health care and long-term care facilities across the U.S. This raises the question of compensability for adverse reactions from the COVID-19 vaccine, and related medical treatment and time lost from work.
A key factor for workers’ compensation compensability is whether the vaccination was mandatory or voluntary. To date, the federal government and most states have not taken action to declare the COVID-19 vaccine to be mandatory.
As with the flu vaccine, the Equal Opportunity Employment Commission and the Occupational Safety and Health Administration have both confirmed that employers can mandate that their workers receive the COVID-19 vaccine as a condition of employment. Those employers that choose to mandate the COVID-19 vaccine will need to accommodate waivers or exemptions for employees objecting on health or religious reasons. Other employers may decide to encourage the vaccine, but not mandate it, by offering on-site vaccinations, payment or reimbursement of vaccine costs, monetary incentives, or as a part of an employer’s wellness program to encourage employees to be vaccinated.
A second key factor for compensability is whether the side effects that occurred from undergoing a COVID-19 vaccination rise to the level of an injury or illness, temporary or permanent. To date the reported COVID-19 vaccine side effects mirror those that have been seen with the flu vaccine. The most common side effects of the COVID-19 vaccine include swelling or pain at the injection site, tiredness, muscle pain, chills, joint pain and fever. These are usually mild in nature and resolve on their own in a few days. Severe allergic reactions to the COVID-19 vaccination requiring treatment have been reported as rare according to the Centers for Disease Control and Prevention .
What does all this mean in the context of workers’ compensation? Is an adverse vaccine reaction compensable? The answer is that it depends.
To determine whether an adverse reaction is compensable will require an investigation into the facts of each claim, receipt of medical records and consideration of the following:
- Was the vaccine mandated by the employer?
- Was undergoing the vaccine a condition of employment?
- Was there something specific to the employment and/or job duties that put the employee at an increased risk for exposure to COVID-19?
- Does undergoing the vaccine in some way further the business of the employer?
- Is the employee working with COVID-19 positive patients?
- Is the employee required to work with the public?
- Was the vaccine administered at work while the employee was working and being paid?
- Did the employee, for personal reasons outside of their employment, undergo the vaccine?
In states such as Wisconsin, Iowa, Nebraska, South Dakota, and Kansas, consideration of the specific circumstances of the vaccination that caused the adverse reaction, as suggested by the questions above, will help to guide the determination of compensability.
For Minnesota claims, there is an additional statutory provision that may need to be considered. MN Stat. 176.011, Subd. 16 specifically states “an injury or disease resulting from a vaccine in response to a declaration by the United States Department of Health and Human Services to ‘address an actual or potential health risk’ related to the employee’s employment is an injury or disease arising out of and in the course of employment.” Thus, in Minnesota where the COVID-19 vaccine reaction rises to the level of an injury or disease, the medical treatment and any lost time from work most likely would be compensable.
As the COVID-19 vaccine becomes more available and as the rollout of the vaccine moves into other tiers and groups of the population, the factors used to assess compensability may change. A sore arm that resolves quickly would probably not be considered an injury or be compensable. A more severe reaction may require additional investigation and it may be compensable.
If an employer mandates vaccination, or strongly encourages the employee to obtain the vaccine for work-related reasons, the scales will more likely tip in favor of compensability.
The COVID-19 vaccine-related reaction claims may contain varying facts and medical situations. Please contact your attorney before making any employment or workers’ compensation liability determinations.
This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.