Workers’ Compensation Liability for COVID-19 Vaccine Side Effects May Be Limited

Allen Smith, J.D. By Allen Smith, J.D. December 17, 2021
A woman with a hand to her head

​Employers may be liable for workers' compensation for employees who experience side effects from mandated COVID-19 vaccines, but that liability may be limited and shouldn't impede company policies requiring vaccination, legal experts say.

"Although employers should be cognizant of the potential for workers' compensation claims arising out of mandatory vaccination policies, they should not let this concern alone dissuade them from implementing such a policy when they have otherwise determined that it is advisable," said Amy Traub, an attorney with BakerHostetler in New York City.

"Side effects associated with COVID-19 vaccines are typically short-lived," she said. "As such, workers' compensation awards in connection with an employee's vaccination side effects are likely to be relatively minimal."

Common Side Effects

According to the U.S. Centers for Disease Control and Prevention (CDC), common side effects that arise from COVID-19 vaccines are pain, redness or swelling at the injection site and tiredness, headache, muscle pain, chills, fever or nausea.

The CDC has stated that serious side effects that could cause a long-term health problem are extremely unlikely following any vaccination, including COVID-19 vaccinations, said Mark Neuberger, an attorney with Foley & Lardner in Miami. He said the CDC has stated that short-term side effects lasting a day or two are more common.

"Most people never seek medical treatment for these symptoms," he added. If there is no medical treatment, there would be no medical benefits to claim, he noted.

"In addition, most states have a seven-day waiting period to collect wage-loss benefits," Neuberger said.

"Meaning, an employee would have to be disabled by these side effects for seven days before being eligible for workers' compensation wage benefits," explained Crystal McElrath, an attorney with Swift Currie in Atlanta.

"Thus, it would be highly unlikely an employee could get workers' comp benefits from the routine side effects of an employer-mandated COVID-19 vaccine," Neuberger said.

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More-Severe Reactions

Nonetheless, side effects following a second dose of an mRNA vaccine may be more intense than those experienced after the first dose, Traub said. She added, "although rare, more-severe side effects, such as anaphylaxis, thrombosis with thrombocytopenia syndrome (TTS) and myocarditis/pericarditis have been reported by individuals after receiving a COVID-19 vaccine."

Anaphylaxis—an acute allergic reaction to an antigen to which the body has become hypersensitive—has occurred in approximately two to five people per 1 million vaccinated in the U.S., although anaphylaxis can occur after any vaccination, the CDC has recently said.

TTS—a blood disorder that results in blood clots forming in small blood vessels throughout the body—has occurred after Johnson & Johnson's COVID-19 vaccination, the CDC has noted. The CDC has recommended the Pfizer and Moderna shots over the Johnson & Johnson vaccination for this reason.

As of Dec. 8, 2021, more than 16.9 million doses of the Johnson & Johnson vaccine had been given in the U.S. The CDC and the U.S. Food and Drug Administration (FDA) identified 57 confirmed reports of people who received the Johnson & Johnson vaccine and later developed TTS. Women younger than 50 years old are at an increased risk for this side effect, despite it being rare, according to the CDC.

The CDC and the FDA are also monitoring reports of Guillain-Barré syndrome in people who have received the Johnson & Johnson vaccine. Guillain-Barré syndrome "is a rare disorder where the body's immune system damages nerve cells, causing muscle weakness and sometimes paralysis," the CDC explained. Although most people fully recover from Guillain-Barré syndrome, some have permanent nerve damage.

Of the 16.9 million Johnson & Johnson vaccine doses administered thus far, there have been approximately 278 preliminary reports of Guillain-Barré syndrome, according to the CDC.

There have been 1,908 reports of myocarditis—inflammation of the heart muscle—or pericarditis—inflammation of the pericardium, a sac-like structure with layers of tissue that surrounds the heart—among people ages 30 and younger who have received a COVID-19 vaccine. Most of these cases arose after receiving the Pfizer or Moderna vaccine. Through follow-up, including reviews of medical records, the CDC and the FDA have confirmed 1,106 reports of myocarditis or pericarditis.

Traub noted that if an employer requires employees to be vaccinated against COVID-19, an employee's adverse reaction to the vaccine with more-severe symptoms could be covered by workers' compensation statutes.

"This is in part because an argument can be made that the vaccine was a work requirement and therefore arose out of and in the course of employment," she said. "There is also some support for an award of benefits in New York, in particular, as workers' compensation benefits were awarded to an employee who had side effects to a flu vaccine that was mandated by the employer."

A primary defense to such a claim will be causal relationship, said Anthony Bilotti, an attorney with Anthony J. Bilotti & Associates in Media, Pa.

Limits on Workers' Compensation Liability

Even if there is workers' compensation liability, damages will be limited to medical costs and only partial replacement of lost wages, and they will be covered by insurance, Neuberger said.

If an employer merely requires a choice between vaccination or regular testing, rather than mandating vaccines, "a worker would unquestionably have a much more difficult time establishing compensability of side effects," said Joshua Higgins, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla.

Higgins described the concern about workers' compensation liability for side effects as "overblown" because "the vast majority of side effects from COVID-19 vaccination are mild and short-lived."

Neuberger concluded, "In dealing with COVID issues in the workplace, workers' compensation is the least of your problems. If you decide to mandate the vaccine for your employees, think through all of the potential issues, especially what to do in this time of low unemployment if even a few employees refuse to take the jab and quit."



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