Wednesday, December 9, 2020
A member of the press asked me today whether illness caused by an adverse reaction to an employer-required Covid-19 vaccine would be covered under workers’ compensation. Suppose, in other words, the employer says I cannot come back to work unless I receive a Covid-19 vaccine. I do as required and I become ill, suffer work incapacity, or require medical treatment because of the adverse reaction. Is expense occasioned by the adverse reaction covered under workers' compensation?
I suspect the question may have been prompted by today’s news that “Britain’s medical regulator warned Wednesday that people with a history of serious allergic reactions shouldn’t get the COVID-19 vaccine from Pfizer and BioNTech, and investigators looked into whether two reactions on the first day of the U.K.’s vaccination program were linked to the shot.”
According to Larson’s workers’ compensation treatise:
When inoculation is occasioned by the particular conditions of employment, injury resulting from the inoculation should be deemed to have occurred in the course of employment. If there is an element of actual compulsion emanating from the employer, the work connection is beyond question, as when the company requires the employee to submit to vaccination by the company’s doctor as soon as the employee is hired, or during an epidemic tells the workers that unless they are vaccinated they cannot work until the epidemic is over.
Larson’s Workers’ Compensation Law § 27.03
As authority for the proposition the treatise cites Texas Employers Ins. Ass’n. v. Mitchell, 27 S.W.2d 600 (Tex. Civ. App. 1930); Sanders v. Children’s Aid Soc’y, 238 A.D. 746, 265 N.Y.S. 698 (1933), aff’d, 262 N.Y. 655, 188 N.E. 107 (1933). Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870 (1934). Alewine v. Tobin Quarries, 206 S.C. 103, 33 S.E.2d 81 (1945).
So the short answer to the question appears to be yes, adverse reactions from employer-required Covid-19 vaccinations are probably compensable under workers' compensation. The analysis might be complicated on causation grounds if federal, state, or local governments ordered employee inoculation -- a subject beyond the scope of this post..
Michael C. Duff