Injuries from Vaccinations
From Navigating COVID-19
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The 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.
The federal Department of Labor’s Occupational Safety and Health Administration (OSHA), however, recently 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. So there's a legal question as to whether an employer would be liable for an injury resulting from its vaccine mandate that's also 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 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. 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 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."
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. 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 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 Supreme Court concluded that the applicant's injury was linked in some causal faction to her employment.
So, if the employer requires a vaccination as a condition of employment, even if it is also required by a state or national mandate, an injury from the vaccination probably would be compensable because the employment would be deemed a contributing cause to 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's 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 every employer will soon need to make. 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.
Finally, Labor Code Section 3208.05(a) states 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 his or her employer and is injured, he or she would be entitled to recover, even if the vaccine wasn't mandated.
- (1949) 91 Cal. App. 2d 884.
- (1983) 33 Cal. 3d 729.
- Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal. 3d 729, 734-735.
- Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal. 3d 729, 737.
- Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal. 3d 729, 737-738.
- See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html.
- LC 3208.05(c) defines a "health-care worker" as "any person who is an employee of a provider of health care as defined in subdivision (d) of Section 56.05 of the Civil Code, and who is exposed to human blood or other bodily fluids contaminated with blood in the course of employment, including, but not limited to, a registered nurse, a licensed vocational nurse, a certified nurse aide, clinical laboratory technologist, dental hygienist, physician, janitor, and housekeeping worker." The term does not include a worker who provides employee health services for an employer primarily engaged in a business other than providing health care.
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