Compensability of Injury From Government-Mandated COVID-19 Vaccination
The U.S. Food and Drug Administration (FDA) has authorized the use of COVID-19 vaccines to enhance people's ability to resist infection by the virus. Vaccines are widely available, and many employers are deciding whether to require employees to be vaccinated (or incentivize them) as a condition for returning to work. For some employees, however, COVID-19 vaccinations are or will be mandated by the government.
The federal Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it's developing a rule requiring all employers with 100 or more employees to ensure that their workforce is fully vaccinated or that workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work. In California, certain employees already are required to be vaccinated as a condition of employment. California has ordered that all health-care workers must be vaccinated unless they are exempt for religious or medical reasons. It has also ordered all public and private school employees to either show proof of full vaccination or be tested at least once per week.
So, in California, the government requires many private employers to make sure their employees receive a COVID-19 vaccination. Accordingly, a legal question arises as to whether such employers would be liable for an injury resulting from a vaccination mandated by either the federal or state government.
There's no question that an injury resulting from an employer-level mandate alone would be compensable. In Roberts v. U.S.O. Camp Shows, Inc. the Court of Appeal held that, "Incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer." That case involved an employee who pursued a civil claim when he was injured after the employer directed him to submit to various inoculations for immunization by physicians designated and paid by the employer. The appellate court upheld a determination that the injuries were solely compensable under workers' compensation law.
More recently, in Maher v. WCAB the California Supreme Court held that a nurse's assistant, who had pre-existing tuberculosis, sustained an injury that was compensable under workers' compensation when she was injured as a result of treatment for tuberculosis that the employer required in order for her to continue working at the hospital. The Supreme Court stated, "The rule is well settled that where an employee submits to an inoculation or a vaccination at the direction of the employer and for the employer's benefit, any injury resulting from an adverse reaction is compensable under the Workers' Compensation Act."
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The Supreme Court added that an injury from a vaccination would be compensable even if the employment was not the sole cause of the injury, and that the work needed only to be a concurrent or contributory cause. It stated, "If the requirement of the test or inoculation applied to everyone regardless of his employment, for example, if everyone were required to have a smallpox vaccination during an epidemic, no special work-connection would exist. But if this particular test is a condition of holding this particular job, then the employment is a concurrent cause of the test; the employee undergoes the test both because the employment requires it and because the state requires it if he is to occupy that job. In other words, if it had not been for the exigencies of the employment, the employee would not have taken that test."
In Maher, the Supreme Court found that the California Administrative Code required only persons employed by hospitals, and not the general public, to undergo testing for tuberculosis. It found that had it not been for the exigencies of the employment, the applicant would not have undergone testing and treatment for her tuberculosis. So, the court concluded that the applicant's injury was linked in some causal faction to her employment.
Because the government has not required, and probably will never require, all residents to receive a COVID-19 vaccination, it's likely that employees covered by a government vaccine mandate will be able to bring workers' claims against their employers for any injuries sustained as a result of the vaccination. Even though the employer is complying with a government mandate, the employment probably would be be considered a contributing cause of the injury, because without it, the employee would not have received the vaccination.
Employers without employees covered by a government vaccine mandate will soon need to make their own decisions whether to require employees to get vaccinated as a condition of returning to work. Employers must balance the costs and benefits related to mandating vaccines against the costs incurred if employees contract COVID-19 as a result of their work. The CDC deems COVID-19 vaccines safe and effective, and serious adverse events are rare after inoculation. But the California Legislature has adopted presumptions in favor of certain employees, making it easier for many of them to bring COVID-19 claims. So, although there are risks to mandating that employees be vaccinated as a condition for returning to work, there are also risks in allowing unvaccinated employees to work.
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