As the roll-out of the COVID-19 vaccine continues and becomes more accessible to the general public, employers are faced with the decision of whether to institute mandatory COVID-19 vaccination programs for employees to protect their employees, customers, and patients during the pandemic. Some employers may believe that a mandatory administration of vaccines to its employees is the best course to take in battling COVID-19. However, employers must measure the implications of a compulsory vaccination mandate for its employees with the risk of liability for adverse reactions or prolonged/serious illnesses caused by the vaccine. In these situations, employers who mandate vaccination against COVID-19 may face workers’ compensation liability.
The details of workers’ compensation liability vary from state to state; however, the basic definition of a workplace injury is a personal injury that arises out of and in the course of employment. The employee bears the burden of proving a work-related personal injury. If an employer mandates that its employees receive the COVID-19 vaccine as a condition of continued employment, it is likely to be considered a compensable injury if the employee suffers a severe reaction. In other words, an employer who demands COVID-19 vaccinations of employees has in turn made that activity a requirement of employment and any adverse reactions resulting would likely be a compensable work injury.
The Minnesota Workers’ Compensation Act, in its definition of personal injury seems to leave no question as to the compensability of a mandatory vaccination under Minn. Stat. § 176.011, subd. 16:
“An injury or disease resulting from a vaccine in response to a declaration by the Secretary of the United States Department of Health and Human Services under the Public Health Service Act 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.”
Under this statutory framework, it would appear in the case of COVID-19, which has been declared a public health emergency, the mandatory administration of the COVID-19 vaccine as a requirement of employment would be a compensable work injury under the Minnesota Workers’ Compensation Act. Even without such a specific definition, employers would have difficulty arguing that adverse reactions to the COVID-19 vaccination did not arise out of and in the course of employment if the employee had no choice but to be vaccinated as a requirement of employment. An employer who requires its employees to receive a COVID-19 vaccination could be on the hook for medical treatment, lost time, and if the reaction results in long-term illness or death, the employer could be on the hook for ongoing wage loss, permanent partial disability, and potentially dependency benefits. The employer could also have exposure for additional conditions that may develop as a result of adverse reactions to the vaccine.
What if the vaccine is not mandatory, but is only encouraged?
The outcome is less clear when the vaccination is encouraged and offered on a voluntary basis. In some instances, this could be considered a work-related situation that arises out of and in the course and scope of employment. Several factors that may be considered in determining whether an injury from encouraging employees to take the COVID-19 vaccine is work-related includes:
- Whether the vaccination directly or indirectly benefited the employer;
- Whether the offering of the vaccine was within the terms, conditions, or customs of the employment;
- Whether the vaccination event was employer-sponsored;
- Whether the offering of the vaccine was unreasonably reckless or created excessive risk; and,
- Whether the offering of the vaccine occurred on the premises of the employer.
Minnesota has a provision in the Workers’ Compensation Act that may provide guidance to employers who encourage employees to vaccinate or to participate in voluntary, employer- sponsored health promotion programs where a vaccination is offered. Minn. Stat. § 176.021, subd. 9 provides that “injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties, and picnics, do not arise out of and in the course of the employment even though the employer pays for all of the costs of the program.” This exclusion does not apply if employees are ordered to participate in the program. The Minnesota Workers’ Compensation Court of Appeals has held that the determinative factor is not whether an employee is encouraged to participate, but whether the employer required participation. If an employer seeks refuge from workers’ compensation liability by simply encouraging employees to obtain the vaccination and/or provide it through its health wellness program, it must ensure that that the employee’s decision to vaccinate or to participate in an employer-sponsored vaccination event is entirely voluntary. There cannot be any hint that employees are ordered to participate in such a program.
Bottom Line
Employers must balance their desire for a safe workplace by requiring vaccinations with the risk of requiring vaccinations and the potential workers’ compensation implications if an employee experiences a serious reaction from the vaccine. At this time, it is difficult to quantify the exposure and cost of a workers’ compensation claim relative to exposure and communication of the disease as opposed to exposure and cost for adverse reactions to the vaccination. A key ingredient in this balancing approach is the realization that any directive by employers to employees that they must vaccinate against COVID-19 will likely give rise to workers’ compensation liability in the event of an adverse reaction. As with all issues relating to COVID-19, this is a fluid situation which could change if there is direct action by the legislature or the governor in determining whether adverse reactions become compensable workers’ compensation injuries.