Opinion Mondays: Do Employers Face Additional Liability for COVID-19 Vaccination Side Effects?

Several weeks ago, an attorney friend called for some advice. One of his clients had asked if the client’s business might face additional liability if–once the COVID-19 vaccines are generally available–it required all employees to be inoculated. The attorney quipped, “We’ve never seen anything like COVID-19. On this liability issue, I feel like we’re in uncharted waters.”

I quickly agreed, but only in part, saying, “It’s certainly true that in our lifetimes we’ve faced nothing like COVID-19. But when it comes to legal issues, such as employer liability for side effects stemming from inoculation, depending upon the jurisdiction, we can be guided by a considerable body of case law reaching back to the early 1930s.” I added that his client’s liability issue required classic “arising out of and in the course of the employment” analysis, with particular emphasis on the “arising out of” the employment component.

While a complete analysis of the issues is beyond the scope of this blog post–I’m currently preparing a much more exhaustive white paper on the subject–multiple core workers’ compensation principles should be kept in mind.

First Principle: Employee Need Not Always Be Engaged in Actual Work

Generally speaking, an injury arises out of the employment when it springs from the nature, conditions, obligations and incidents of the employment [see Larson’s Workers’ Compensation Law, § 3.01 et seq.]. That is to say an employee need not necessarily be engaged in the actual performance of work at the moment of the injury. Generally speaking, it is enough if he or she is occupied in activity that is consistent with the contract of hire in some manner pertaining to or incidental to the employment.

Second Principle: Purely Personal Activity Does Not Spring from a Risk of the Employment

Where the decision to receive an inoculation is made solely by an employee, without any requirement or strong encouragement from the employer, an injury arising out of the inoculation cannot be said to have arisen from the employment [see Larson, § 27.03[2]]. While the employer may be seen as deriving some measure of benefit in the form of decreased employee absenteeism, that benefit, standing alone, is insufficient to justify imposing an economic burden upon the employer for an injury sustained as a result of the employee’s personal decision to receive the inoculation.

Third Principle: Injury Covered if Employer Requires Inoculation as Condition of Employment

If there is an element of actual compulsion emanating from the employer, the work connection of the inoculation is beyond question, as when an employer required the employee to submit to vaccination by the employer’s doctor as soon as he was hired [see Neudeck v. Ford Motor Co., 249 Mich. 690, 229 N.W. 438 (1930)] or when the employer tells the workers that until an epidemic is over, they may not work without an inoculation [Texas Employers Ins. Ass’n v. Mitchell, 27 S.W.2d 600 (1930); Sanders v. Children’s Aid Society, 238 A.D. 746, 265 N.Y.S. 698 (3d Dept. 1933)].

Fourth Principle: Injury Covered if Inoculation Not Required by Employer, But is Prudent Due to Nature of Work

Occasionally, the employer does not so much compel the inoculation as it is essentially required by the nature of the work. Thus, employees engaged in an overseas assignment have been allowed to associate the contraction of malaria, polio, or tuberculosis with the nature of their work and, therefore, to recover from injuries associated with inoculation [see Lepow v. Lepow Knitting Mills, Inc., 288 N.Y. 377, 43 N.E.2d 450 (1942), McAllister v. Cosmopolitan Shipping Co., 169 F.2d 4 (2d Cir. 1948), rev’d on other grounds sub nom., Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692 (1949), and Travelers Ins. Co. v. Donovan, 125 F. Supp. 261 (D.D.C. 1954), aff’d, 221 F.2d 886, 95 U.S. App. D.C. 331 (D.C. Cir. 1955).

Protection for the employee also works “in reverse.” For example, in one relatively recent case from nearby UNC Medical Center, Fu v. UNC Chapel Hill, 655 S.E.2d 907 (N.C. Ct. App. 2008), the employer had invited the employee, a doctor, to come to the United States from China to do research. As a condition of her employment, the employee was required to be vaccinated against a specific virus used in her research. The employee claimed that she suffered an occupational disease as the result of the vaccine’s side effects. The appellate court affirmed an award of benefits. The North Carolina court held the visiting doctor’s employment placed her at a higher risk than the general public of developing her symptoms.

Fifth Principle: Injury Covered if Inoculation, While Not Required, Is Strongly Encouraged by Employer

When the inoculation is not thus strongly tied to the employment either by employer compulsion or by the special risks of the assignment, it may still be covered if there is a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations. For example, in Saintsing v. Steinbach Co., 1 N.J. Super. 259, 64 A2d 99 (App. Div. 1949), rev’g, 61 A.2d 580 (N.J. 1948), during an outbreak of smallpox, the employer purchased vaccine from the local Department of Health and made vaccination available to all its employees without charge. It posted a notice saying, “… we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.”

The claimant suffered a severe reaction to the vaccination. The court found a mutual benefit under the circumstances, indicating that insofar as the inoculation program aided in the prevention of smallpox within the employee group it protected the employer against possibly disastrous business consequences. The court added that it was unrealistic to say the inoculation program was for the exclusive benefit of the employees and not additionally designed to further a sound employer-employee relationship and safeguard the employer against the serious effects of a case of smallpox amongst its employees.

An older case, Smith v. Brown Paper Mill Co., 152 So. 700 (La. App. 1934) had a similar outcome. The court acknowledged that the workers were not “ordered or required” to take the inoculation, but the court added:

the convenience of the facility and the posted notice constituted a suggestion, an invitation and urge, calculated to induce an employee to submit to the treatment who might not otherwise have done so [152 So. 700, at 704].

A more recent decision, In re Hicks’s Case, 62 Mass. App. Ct. 755, 820 N.E.2d 826 (2005), is also instructive. There, the claimant, an electrocardiogram technician, suffered blindness, caused by optic neuritis, apparently brought about by a bad reaction to a flu shot. The court acknowledged that the inoculation had not been required by the employer. Extensively quoting Larson, the appellate court stressed that where the inoculation was not strongly tied to the employment either by employer compulsion or by the special risks of the assignment, it might still be covered if there was a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations. Additionally, noted the court, the claimant worked with patients who could not afford exposure to the flu. The court concluded that the employee’s decision to get the injection need only be a concurring cause of the inoculation.

Sixth Principle: State Compulsion May Affect Employer’s Liability

A few cases have held that an injury associated with an inoculation does not arise out of the employment if the vaccination compulsion comes from state law or public authority, and not directly from the employer [see Larson, § 27.03]. For example, in Industrial Commission v. Messinger, 116 Colo. 451, 181 P.2d 816 (1947), claimant worked as a waitress. Her employer directed her to submit to a blood test, as required by law. The claimant’s arm became infected after the blood was withdrawn and the resulting disability forced her out of work. The Colorado Commission disallowed the claim, but a state trial court reversed the Commission and entered judgment for the claimant.

The Commission appealed, contending that the claimant’s injury did not arise out of and in the course of her employment. The appellate court agreed, holding that the claimant and other employees were ordered to have a blood test made in order to comply with health regulations, that they were not directed to go to any particular physician, and that the claimant went to a physician of her own choosing for the test. Although claimant was ordered by her employer to take the blood test, the employer was legally obligated to do so under state law. Accordingly, said the appellate court, the Commission was correct in finding that the claimant’s injury did not arise out of and in the course of her employment.

Dr. Larson criticized the Messinger decision [see Larson, § 27.03[2], n. 49], arguing that the decision appeared to assume that the employment must be the sole cause of the test or inoculation in order to support the claim. He allowed that it would be more correct to say that the employment need only be a concurring cause. If the requirement of the test or inoculation applied to everyone regardless of his or her employment, for example, if everyone were required to have a smallpox vaccination during an epidemic, no special work-connection would exist. But if the particular test was a condition of holding this particular job, as it was in Messinger, then the employment would be a concurrent cause of the test. That is to say that the employee undergoes the test both because the employment requires it and because the state requires it if the employee 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.

Let Me Hear From You

Again, this is a somewhat cursory examination of the issue. “Your mileage may vary.” I’d love to hear from you if you have concurring or dissenting views. Feel free to leave a comment at the bottom of this post, or send me an email message: tom@workcompwriter.com.