COVID-19 and Workers’ Compensation – Sole Remedy?

What if your employer mandates immunization and you have an adverse reaction?

By Karl Voigt

As the workforce starts to return to (the new) normal, some employers are mandating a COVID-19 vaccination. While the vast majority of the vaccinated have mild or no reaction to vaccination, some recipients do indeed have adverse reactions. What happens if an employee who was forced to get vaccinated develops acute, or even long-term, symptoms?

First, vaccines were developed to combat the obvious and well-documented effects of COVID-19, death being the first and most grave risk. With the rise of the Delta variant, there has been a recent spike in hospitalizations and deaths from COVID-19. The Associated Press has reported that 98.9% of patients hospitalized for COVID-19 are unvaccinated. “Breakthrough” infections in fully vaccinated people accounted for fewer than 1,200 of more than 107,000 COVID-19 hospitalizations.

However, no vaccine is without risk. The polio epidemic, which began in 1894, caused millions of deaths and far more cases of permanent paralysis. By its peak in the 1940s and 1950s, polio killed or paralyzed over half a million people worldwide every year. When the first polio vaccine was introduced in 1955, some 40,000 cases of polio were actually caused by a vaccine manufactured by Cutter Laboratories. While use of that vaccine was immediately suspended, the overwhelming majority of people vaccinated against polio never developed the disease. The end result of polio vaccination, however, is clear: polio was completely eliminated in the United States by 1979.

The risks of COVID vaccination are anaphylaxis, thrombosis, myocarditis, pericarditis, and even death. These reactions are extraordinarily rare, but they do happen, according to the CDC. There are also plenty of anecdotal stories of other symptoms following vaccination; these stories bear varied reliability. There is, however, one well documented case of a coroner’s finding that a British Broadcasting Corporation personality actually died of a brain hemorrhage caused by a blood clot three weeks after her first AstraZeneca shot.

There is a nationwide push – by private employers as well as government – to mandate vaccination of its employees.

President Biden has announced that federal government employees will be asked to attest to their vaccination status. Anyone who does not attest or is not vaccinated will be required to mask at all times, test one to two times per week, socially distance, and generally will not be allowed to travel for work.

In Pennsylvania, Governor Wolf has announced that “Commonwealth employees in state health care facilities and high-risk congregate care facilities will be required to be fully vaccinated against COVID-19 by September 7, 2021. Individuals who are not vaccinated will be required to undergo weekly COVID-19 testing. Additionally, beginning September 7, all new external hires in these facilities must be vaccinated before commencing employment.”

It’s not just federal and healthcare workers that must be vaccinated, but also anyone who works in a “high-risk congregate care facility” like nursing homes, prisons, veterans homes, community health centers, assisted care facilities and state correction institutions.

Naturally, the majority of the adult population has already been vaccinated voluntarily. While teachers in Pennsylvania are not required to be vaccinated, a formidable majority have been.

So what happens to those vaccinated people who experience side effects? Who is legally responsible? First and foremost, the immunization manufacturers – Moderna, J&J, and Pfizer/BioNTech – all enjoy immunity from suit. The federal government has granted these companies immunity from liability if something unintentionally goes wrong with their vaccines under the 2005 Public Readiness and Emergency Preparedness Act (PREP). While the PREP Act authorized a “Covered Countermeasures Process Fund” to compensate eligible individuals who suffer injuries as the direct result of a vaccine, only about 6% of those claimants ever see compensation.

There is a strong argument that employees who forced to get vaccinated and suffer from serious side effects could get workers’ compensation benefits. This would, however, be their only remedy. The worker would have to show that their symptoms derive from furthering the interests of the employer. Claimant would have to argue that the mandatory nature of the vaccine was work-related; this should be self-evident. Then, the claimant would have to prove causation: a claimant would need a physician to opine that the symptoms being experienced were caused by the vaccine. While showing causation could be a challenge, once established, if the claimant were unable to work, he or she would receive wage loss benefits. In addition, any medical bills associated with the treatment of the symptoms would have to be paid by the workers’ compensation insurance company. These benefits would continue until the symptoms go away. In cases of death stemming from vaccination, the worker’s family would have to file a claim for death benefits. This type of claim would require similar showing of work-relatednesss and causation.

For more about the limitations and compromises of workers’ compensation, read my earlier blog post.