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The Workers’ Comp Risks…and Rewards of a Mandatory Vaccine Policy

The Workers’ Comp Risks…and Rewards of a Mandatory Vaccine Policy

In light of OSHA’s vaccine-or-test rule this blog post will analyze how an employer’s mandatory vaccine policy will likely impact their workers’ compensation (WC) liability.  There are of course employment and labor issues to consider when adopting any employer mandate, but the focus of this post is on the workers’ compensation implications.

In brief, it appears that while there are certain workers’ compensation risks that may result from adverse or allergic reactions to the vaccine, those risks are outweighed by the rewards of having fewer compensable, less costly COVID claims in the future due to a safer workplace.

 OSHA’s pending vaccine-or-test mandate

On Sept. 9, President Joe Biden announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) would issue a rule requiring all private employers with 100 or more employees to ensure that their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result at least weekly.  Covered employers will also have to give workers paid time off to get vaccinated or recover from any side effects of getting vaccinated. Employers that don’t comply with the vaccine mandate or paid-time-off requirement may face fines of up to $14,000 per violation.  https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osha-sends-covid-19-vaccination-rule-to-white-house-for-review.aspx

Many California employers have begun framing their own vaccine policies.  Some are vaccine mandates, others are similar to OSHA’s anticipated requirement of vaccine-or-test weekly, and still others require vaccine-or-test weekly plus masking.  Several are taking effect as soon as November 1st.

What are the WC risks of a mandatory vaccine policy? Adverse reactions may be found compensable

In Maher v. Workers’ Compensation Appeals Bd (1983) 48 Cal. Comp. Cases 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.  Therefore, where an employer implements a mandatory vaccine policy for all employees, adverse reactions to the vaccine, or an accident to/from the vaccine site, could be claimed as an industrial injury.  The risk of employer liability is limited, of course, to those employees not previously vaccinated and who claim that they would not have been vaccinated but for the work requirement.

Moreover, while severe vaccine reactions are often discussed, they are thankfully rare. With the FDA’s approval of the vaccine, “the public can be very confident that this vaccine meets high standards for safety and effectiveness.”  https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine.  Nearly 200 million people in the United States have been fully vaccinated under the most intense safety monitoring in U.S. history.  https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html.

Adverse vaccine reactions are not presumed compensable

It is worth noting that adverse or allergic reactions to the vaccine are not covered by California’s SB 1159. The law creates a rebuttable presumptions of eligibility for WC benefits for certain employees who get sick or injured due to COVID, if the employee is a safety/healthcare worker or else tests positive during an “outbreak” at their specific workplace. The presumption statute covers illnesses caused by SARS-CoV-2 virus infections. It does not apply to any adverse medication reactions allegedly due to COVID vaccines.

Do vaccine-or-test rules amount to mandates for WC purposes?

If the employee credibly claims that they only had the vaccine because of the work policy, and further proves that the alternative of weekly testing and/or masking option was too onerous an alternative, or results in stigmatization (being the only person on a team who has to wear a mask, for example), then the policy could be viewed as equivalent to a mandate.

These are evidentiary hurdles for the employee-claimant and there are defenses an employer can assert as well: the policy tracks OSHA rules, the employer elected to choose the vaccine over the testing option, etc.

Some employers are offering incentives ($100 gift card, lowered healthcare premiums, etc.) in lieu of mandates, and the effect would likely be the same—a negative reaction could be compensable as a worker’s comp claim. An employee is deemed to be within the course of employment when performing an activity that the employer has expressly or impliedly required or permitted, and which is reasonably contemplated by employment.  Integrated Data Co. v. Workers’ Compensation Appeals Bd., 66 Cal. Comp. Cases 642, 643, 2001 Cal. Wrk. Comp. LEXIS 5013, *3 (Cal. App. 4th Dist. April 12, 2001).

What are the rewards of a mandatory vaccine policy?

Mandatory vaccine policies may benefit an employer on three fronts:

(1) they help reduce COVID infections in the workplace, thereby reducing the number of potential future COVID workers’ comp claims;

(2) for those COVID claims that still arise in an all-vaccinated or else an all-vaccinated-or-regularly-negativly-tested workplace, an employer may hold up their mandate policy as a basis to deny the claims and to rebut SB1159’s presumption that the illness was contracted at work; and

(3) for any “breakthrough” COVID claims that are ultimately accepted or found compensable, a fully vaccinated workforce reduces medical/hospital costs.

How does a mandatory vaccine policy support the defense of WC claims?

In order to encourage employers to comply with local health orders for safely reopening, SB 1159 also allows employers to rebut the presumption by introducing evidence of any measures they have taken to reduce the potential transmission of COVID in the workplace.  An employer could introduce their mandatory vaccine policy here to rebut a claim that COVID was contracted at work.

Therefore, even if an “outbreak” were to occur, such a policy in conjunction with other remedial measures at work (ventilation, masking, social distancing, etc.) would provide evidence to help rebut future COVID claims, even presumed-compensable claims.  After all, if everyone at work is vaccinated, then worksites are arguably among the safest places an employee will visit, assuming minimal exposure to the unvaccinated public at the worksite.

Any employee claiming COVID injuries will struggle to demonstrate that their illness was contracted in an environment where everybody is vaccinated and other remedial measures are followed, as opposed to those environments frequently visited offsite where the vaccination status of others is unknowable, e.g., the grocery store, bank, neighborhood gatherings, schools/daycare, etc.

 The pros seem to outweigh the cons when it comes to mandatory vaccine polices

Although there is the risk that negative reactions to vaccines could be found compensable when a mandatory vaccine policy is in place, the likelihood of a severe reaction is low.  On the other hand, if an employer does not implement a mandatory vaccine policy, they may inevitably expose themselves to greater liability given both the increased ability for COVID to spread at their workplace and the perception that if an employee has contracted COVID, it may have occurred at the workplace, especially an unsafe workplace. That exposure includes not only COVID workers’ compensation claims, but also third-party tort liability exposure to non-employees who claim to have contracted the disease from infected workers.  By way of example, see the Matilde Ek v. See’s Candies Inc.

The likelihood of injury resulting from adverse reactions appears to be significantly lower than the likelihood that unvaccinated employees will at some point contract or transmit COVID.  For example, Nature asked more than 100 immunologists, infectious-disease researchers and virologists working on the coronavirus whether it could be eradicated.  Almost 90% of respondents think that the coronavirus will become endemic — meaning that it will continue to circulate in pockets of the global population for years to come.  https://www.nature.com/articles/d41586-021-00396-2.

Given the likelihood of COVID’s indefinite existence, weighed against the measured level of safety related to the vaccines, it appears that a mandatory vaccine policy would be the best approach for an employer hoping to mitigate costs and exposures relating to COVID.

In summary, there is a risk that negative reactions to vaccines could be found compensable when there is a mandate (or incentive) policy in place. But there are defenses available to those claims, they are not presumed compensable for anyone, and such a mandate likely reduces an employer’s exposure to future COVID workers’ comp and tort liability claims.

 

 

 

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