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Mandatory vaccine policies may have workers comp implications

Posted by Christine Foster on January 19, 2021

The COVID-19 vaccine rollout has begun in health care and senior living facilities across the U.S., and employers in many industries are eagerly awaiting the chance to have their employees vaccinated against the coronavirus.

However, employers must balance their desire for a safe workplace with the risks of requiring vaccinations and the potential workers compensation implications if a worker experiences serious side effects, experts say.

Employers “need to recognize that if they do impose a vaccination mandate that it’s likely that they are going to have to pay for the vaccination, that this will be compensable work time, and … medical complications in a mandatory vaccination environment are going to be under workers compensation and be covered,” said Gary Pearce, Detroit-based chief risk architect at risk management consultancy Aclaimant Inc.

While government agencies including the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration have said that employers can mandate that workers receive the COVID-19 vaccine, it may not be the best approach, said attorney Jeff Adelson, partner with Newport Beach, California, firm Adelson McLean P.C.

“If the employer mandates the use of the vaccination … as a condition of continued employment, regardless of where the vaccination is obtained, it’s likely to be considered a compensable injury” if the employee suffers a severe reaction, he said.  

Even if the employer does not mandate the vaccine but encourages it, and the worker suffers a vaccine-related injury, that too could also be considered a compensable injury in certain states, such as California, Mr. Adelson said.

Choosing to mandate or strongly encourage vaccines could potentially have both favorable and unfavorable workers compensation implications, said Natasa Timotijevic, associate in the Chicago office of Goldberg Segalla LLP.

On one hand, employers could potentially see an uptick in workers comp claims arising from adverse reactions to inoculations, but on the other, a vaccine mandate could act as a supplementary defense in COVID-19 exposure claims, which could be particularly important in states such as Illinois with presumption of compensability laws for workplace-acquired coronavirus, Ms. Timotijevic said.

“One of the ways that employers can rebut that presumption,” she said, “is demonstrating compliance with public health guidelines in place at time of exposure.” If federal guidance encourages vaccination and the employer’s vaccine policy is consistent with those guidelines, it could be one more piece of defense for rebutting those claims, she said.

Employers need to come up with a plan that balances the needs and interests of the company with what is in the best interest of the worker, Mr. Pearce said.

“Some industries will determine that the vaccine will be mandatory,” but companies may also want to have separate policies based on job duties, he said. For example, the employer could create a vaccination mandate for employees who work in close contact with the public but not those who are able to perform their duties remotely, he said.

“It’s going to be hard to shove a mandate down the throat of people who are working remotely and aren’t exposed,” Mr. Pearce said. “On the other hand, if you have people who work in close proximity, that’s going to make vaccination much more justifiable.”

Employers that mandate or encourage vaccinations also need to have a process in place for tracking which employees have received an inoculation, if they’ve had both the initial shot and the booster at the appropriate time, or if they’ve signed an opt-out waiver for health or religious reasons, said Sean Salvas, Phoenix-based senior market strategy lead for environment, health and safety at Origami Risk LLC.

One way to potentially avoid an adverse reaction turning into a workers comp claim is to provide a few days of paid time off for employees to get the shot and recover, Mr. Adelson said. Another option would be to have telemedicine options available for workers who have an adverse reaction, he said.

Based on the experiences of people vaccinated so far, reactions to the COVID-19 vaccine have been similar to those of other vaccines, and it’s “likely that the majority of those (vaccine-related comp) claims, should they arise, are going to be nominal,” Ms. Timotijevic said.

“All of this is very much up in the air as far as how (vaccine reactions) are going to be treated in workers comp,” said Carin Burford, Birmingham, Alabama-based shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. “Comp cases are usually the last things to be asserted.”

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