Does Workers' Comp Cover an Employee's Reaction to a COVID-19 Vaccine?

​Employers that mandate or encourage employees to get a COVID-19 vaccine will likely partner with a health care provider or other authorized entity to administer the vaccine, but they may still be concerned about potential workers' compensation liability if an employee has an adverse reaction.  

Employers that provide COVID-19 vaccines onsite through a third party have less risk of workers' compensation liability than employers that mandate vaccines. But this is a developing area of the law, and there are certain scenarios where workers' compensation for adverse reactions is possible.

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If an employer arranges for a third party to administer a COVID-19 vaccine, vaccines are voluntary and an employee has an adverse reaction, workers' compensation probably will not cover any health care costs the employee incurs in seeking treatment, said Crystal McElrath, an attorney with Swift Currie in Atlanta.

"It is very unlikely that an adverse reaction in this scenario would result in a compensable worker's compensation claim, since the employee voluntarily decided to get the COVID-19 vaccination," said Joshua Higgins, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla.

"An employer arranging for a third party to administer a COVID-19 vaccine, without requiring the employee to receive it, is simply providing a service and a convenience for employees, and is not placing the vaccination within the course and scope of the employee's work and is not amounting to the vaccination arising out of employment," he explained.

However, Sonya Rosenberg, an attorney with Neal, Gerber & Eisenberg in Chicago, said employers may be liable in these cases.

"Certainly, the likelihood of a successful claim goes down if the vaccine is voluntary," she said. But if the vaccine benefits the employer and is administered in the course of work and the shot caused the adverse reaction, the injury arguably is work-related, Rosenberg said. "Indeed, certain states' workers' compensation statutes expressly state that injuries arising from vaccines administered as part of a government-sanctioned vaccination program are covered by workers' compensation," she said.

State Laws

In general, "if an employer mandates that an employee receive a vaccine in order to be on work premises and the employee has some sort of severe reaction to the vaccine, causing serious illness or injury, the employee could be entitled to workers' compensation benefits," said Amanda Van Hoose Garofalo, an attorney with BakerHostetler in New York City.

Workers' compensation bars all other claims, she noted. So employees would likely be blocked from seeking monetary damages in court.

Workers' compensation may provide the exclusive remedy even if the claim is ultimately deemed not compensable, McElrath said.

"This is a major benefit to employers because they already pay for workers' compensation insurance, and the insurance will cover the costs related to such a claim for the employer," Garofalo said.

Workers' compensation coverage for adverse reactions to voluntary vaccinations provided by employers through a third party depends on individual state law, said Christopher Razo, an attorney with Polsinelli in Chicago.

Some factors that employees are likely to use to support their claims that workers' compensation covers a voluntary vaccine include:

• The voluntary vaccination occurred at work.
• An employer paid for the vaccine.
• An employer encouraged the vaccination and benefited from the vaccination.

PREP Act

"An employer that provides a COVID-19 vaccine onsite may qualify for the liability immunity protections of the Public Readiness and Emergency Preparedness Act (PREP Act)," Razo said. The PREP Act grants liability immunity to covered persons against any claim of loss caused by, arising out of, relating to or resulting from the administration, distribution or use of COVID-19 vaccines approved by the Food and Drug Administration.

Specifically, employers may be shielded from liability if they are considered a "program planner" that supervises or administers an onsite vaccination program.

Possible Coverage Scenarios

There are nonetheless several scenarios where workers' compensation liability may arise.

If an employee experiences pain in the area of the vaccination shot, seeks medical treatment and is diagnosed with a tear, the employee might also argue the injury was caused by the injection. If the vaccine was required for the job or administered on the job during work hours, the worker might maintain the injury caused by the COVID-19 vaccine arose out of and in the course of employment, such that it is covered by workers' compensation, said Nichole Novosel, an attorney with Swift Currie in Atlanta.

"There are also other possible scenarios to account for involving the COVID-19 vaccine that may not be considered an adverse reaction but could impose liability on an employer nonetheless," she said.

For example, an employee may be injured while traveling to receive the vaccination. While this is not an adverse reaction, an employee may try to argue he or she is entitled to workers' compensation benefits for any injury sustained in that accident if the vaccine was required for the job and the worker was required to go to a particular location at a particular time.

Another possible scenario: An employee stands in line to get the vaccine next to someone who has COVID-19 and subsequently comes down with the virus. "If the causation burden of proof as to where the virus originated can be met, there is the possibility of a workers' compensation claim," said Briggs Peery, an attorney with Swift Currie in Atlanta. "Basically, the more integral a role an employer plays in requiring the employee to get the vaccine, the stronger the employee's argument that any adverse reaction from the vaccine arises out of and in the course of employment."

Coverage considerations include whether:

• The vaccine is required, voluntary or potentially even strongly encouraged.
• It is administered during personal or company time.
• It is administered offsite or on company property.
• An employer pays or provides for the vaccine.