Injuries from Vaccinations

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To mitigate the effects of the COVID-19 pandemic, the FDA has authorized the use of COVID-19 vaccines. Because of the availability of vaccines, many employers are deciding whether to require the vaccine, or at least incentivize employees to get it, as a condition for returning to work.

However, it was recently announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Therefore, there is a legal question as to whether an employer may be liable for an injury resulting from a vaccine mandate if it is also required by a state or national mandate.

There is 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, "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 after 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. Workers' Comp. Appeals Bd. 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 which the employer required in order 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."

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 employment only needed to be a concurrent or contributory cause. The Supreme Court 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 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. Therefore, the Supreme Court concluded the applicant's injury was linked in some causal faction to her employment.

Therefore, if the employer requires a vaccination as a condition for employment, even if it is also required by a state or national mandate, an injury from the vaccination would likely be compensable because the employment would be deemed a contributing cause for the injury. But if an employer follows the federal rule allowing employees to produce a weekly negative test in lieu of receiving a vaccine, it may be arguable that the employer is not directing or requiring the employees to take the vaccine, and any injuries would not be compensable under state workers' compensation law.

Whether to mandate vaccinations is a decision that every employer will soon need to make. Employers must balance the costs and benefits related to the mandating vaccines against the costs which would be incurred if employees contract COVID-19 as a result of the employment. The CDC reports that COVID-19 vaccines are safe and effective and serious adverse events after COVID-19 vaccination. On the other hand, the California Legislature has adopted presumptions in favor of certain employees, making it easier for many employees to bring COVID-19 claims. Therefore, while there are risks involving in mandating that employees receive the vaccination as a condition for returning to work, there are potentially even greater risks for allowing unvaccinated employees to work.

Finally, Labor Code Section 3208.05(a) provides that an "injury" includes a reaction to or a side effect of health care provided by an employer to a health-care worker for the purpose of preventing the development or manifestation of any blood-borne disease, illness, syndrome or condition recognized as occupationally incurred by an appropriate governmental agency (for example Cal/OSHA or the federal Centers for Disease Control and Prevention). So, if a health care worker received preventive care provided by their employer and is injured, then they would be entitled to recover, even if the vaccine wasn't mandated.

See Also

• Employer Response to COVID-19 in the Workplace
• COVID-19 Presumptions

References

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