Are negative reactions to COVID-19 vaccines compensable?
- December 9th, 2020
- Tom Richard
- No comments
California employers are considering offering, and in some cases mandating, that employees become inoculated with a COVID-19 vaccine before resuming their job duties. If an employee has an allergic or other negative reaction to the COVID-19 vaccine, does this create Workers’ Comp compensability claim exposure?
In Maher v. WCAB (1983) 48 CCC 326, the WCAB found that an employer may be liable for an injury sustained as a result of treatment that is required as a condition of employment. It seems likely that a negative reaction to a COVID-19 vaccine mandated by an employer would be compensable as a Workers’ Comp compensability claim.
What if the vaccine is not mandated, but is instead offered optionally by the employer as a convenience to its employees?
In Integrated Data Co. v. WCAB (Small) (2001) 66 CCC 642 (writ denied) and Saint Agnes Medical Center v. WCAB (Cook) (1998) 63 CCC 220 (writ denied), the WCAB found that employers may also be liable for an injury sustained by an employee as a result of treatment that is optionally provided as preventative care, even if not a condition of employment.
For example, in the Saint Agnes case, the Board found that an injury caused by a flu shot was compensable, where it was offered to employees by the medical center in part for the benefit of the employer, i.e., to help prevent the spread of flu in the workplace to other employees and to patients.
In our opinion, the COVID-19 vaccination given to employees at work will likely be compensable, whether mandated by the employer or optionally offered.
What about an employee who elects to become vaccinated on their own, outside of work and has a negative reaction to the COVID-19 vaccine? Based on the current case law, that employee would not likely have a compensable claim against the employer, unless the employee/claimant can convincingly assert that the vaccination was taken in part for the benefit of the employer, i.e., to help prevent the spread of COVID-19 in the workplace to other employees and to patients.
This argument seems most likely to prevail in cases where the claimant works in medical facilities and similar operations, where inoculation from COVID-19 is clearly for the benefit of the employer, at least in part.
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RTGR Law LLP supports California employers and claims departments and helps:
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- Build investigation best practices and WCAB litigation strategies for COVID-19 presumption defenses;
- Use the interactive process to manage COVID-19 disability and quarantine accommodations;
- Strategically manage COVID-19 Workers’ Damages lawsuits & the Exclusive Remedy defense; and
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