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An employer arranges vaccinations for its employees. A health-care employer provides its employees with vaccinations. An employer encourages its employees to get vaccinated. An employer tells employees that they may not return to work unless they are vaccinated.Then something goes wrong. An employee has an allergic reaction to the vaccine, or is injured. A claim is filed. Is this a valid work-related injury? The short answer probably is yes, in most cases. Special rules apply to health-care organizations that provide vaccinations to their employees. For all other employers, if the vaccination is caused at least in part by the employment, any resulting injury would be compensable.
Compensability for Health Care Organizations
The little-known rule for health-care organizations is discussed in depth in "Sullivan on Comp" (SOC) Section 5.2 Health-Care Worker –– Blood-Borne Disease. Per LC 3208.05, an "injury" includes a reaction to or a side effect of preventive health-care provided by an employer to a health-care worker who is one of its employees. So, if the employer is a health-care provider –– that is, the predominant business of the employer is health care –– and it provides the vaccine to its own employees, any injury resulting from it would be compensable under this law.
Compensability for All Other Employers
This rule is important, but has limited application. What about all other employers? "Sullivan on Comp" discusses the subject in Section 5.9 Occupational Disease. In California, there are only two cases of import on the subject.
In Roberts v. U.S.O. Camp Shows, Inc., an employee musician was directed by his employer to receive various inoculations, and as a result contracted encephalitis. 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." Likewise, in Maher v. WCAB, a nurse applied to work at a hospital. A mandatory test for tuberculosis resulted in treatment that injured her. In justifying the industrial nature of that injury, the California Supreme Court explained that "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."
Maher went on to tie compensability to a causal relationship between the testing and the requirements of employment. The Supreme Court explained that the employment need not be the sole cause of the test or inoculation stating, “It would be more correct to say that the employment need only be a concurring cause.” Maher pointed out that, "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."
It is well established in workers' compensation law that when an employee’s action inures to the benefit of the employer, a resulting injury is work related. This certainly is true if there is a created, reasonable expectation of the action by the employer, the action occurs on the employer’s premises and/or if the employer requests or facilitates the action. In these instances, there might be a causal link between the action and the employment such that an injury might be due to the employment. Presumably, an inoculation benefits the employer, as it gets employees back to work on-site, although that might not always be true.
We conclude that:
- If an employer required a vaccination for continued employment, any resulting injury would be compensable.
- If an employer required a vaccination as a condition for physically returning to work, as opposed to continuing to work from home, a resulting injury would be compensable.
- If a health-care organization provides inoculations to its employees, a resulting injury would be compensable.
- If another kind of employer directly provided vaccinations to its employees, any resulting injury probably would be compensable. The issue would turn on whether the vaccination was undertaken at least in part due to the employment.
- If an employer facilitates vaccinations, such as paying for them, setting appointments and the like, a resulting injury probably would be considered compensable, but the issue might turn on whether the vaccination was undertaken at least in part due to the employment.
- If an employer merely facilitated society’s broad-based provision of vaccinations –– by providing, for example, information as to when and where they may be received –– a resulting injury probably would not be compensable.
The Exclusive Remedy Rule
Having a vaccination fall under the bailiwick of workers' compensation might not be such a bad thing for employers. The exclusive remedy rule (see SOC Section 2.16 Exclusive Remedy Rule et seq) limits an employee’s remedy in workers' compensation claims to workers' compensation benefits. The employee may not sue the employer in civil court, where damages may be much more severe. Thus if the employer was somehow negligent in administering the vaccine and an injury occurred, there would be only workers compensation liability.
Negligence on the part of a medical provider is a different story. Medical malpractice is not subject to the exclusive remedy rule, as it is not the employer being sued in civil court (see SOC Section 2.32 Civil Remedy Against Third Party). Thus a medical provider who is negligent will be subject to civil suit concurrent with the workers compensation action against the employer.
What about the situation where the nurse or physician providing the vaccine is also the employer, such as when a hospital inoculates its own employees? There is in workers compensation law the concept of "dual capacity" (discussed in depth in SOC Section 2.22 Exclusive Remedy –– Dual Capacity) which addresses this circumstance. The dual capacity doctrine in regards to medical malpractice may be stated as follows: if, after an injury occurs, the employer provides treatment to cure or relieve the condition, a civil negligence action may be allowed. If, however, an employer imposes a contractual duty on the employee to obtain treatment from it, or itself undertakes a duty to provide such treatment as one of the direct benefits of employment, any medical treatment provided to the employee becomes part of the employer-employee relationship.
Thus in the case of Alander v. VacaValley Hospital an employee was exposed to hepatitis, and hospital protocol mandated a vaccination. The process of the vaccination resulted in an injury - nerve damage to the right arm - and a workers compensation case resulted. When the injured employee attempted a civil negligence suit against the hospital, his case was thrown out. The court found that the injury occurred while the hospital was fulfilling its obligation to provide the shots under its protocol as her employer, not as her medical-care provider.
Thus the dual capacity doctrine should not allow an injured employee to proceed in civil court where a provider-employer provides vaccinations to its employees.
Employer's Right to Mandate Vaccines
Does the employer have the legal ability to require vaccinations as a condition of employment? The answer at this writing seems to be yes, but it is not certain.
Guidance so far is only a cryptic series of "Technical Assistance Questions and Answers" recently distributed by the federal Equal Employment Opportunity Commission (EEOC).
The language of the guidance noticeably lacks any concrete and specific statement that mandating the vaccine as a condition of employment is lawful. However, the EEOC cites various criteria that certainly must be adhered to in the event an employer does so mandate; thus, it is implied that the employer may indeed do so.
Most important, the employer must respond to employees who refuse the vaccination because of medical condition or religious belief in an interactive and reasonably accommodating fashion to avoid falling astray of federal protections. The most prevalent accommodation probably is telework for the requesting employee. The EEOC does suggest that if an accommodation poses an “undue hardship” (a significant hurdle to surmount), the employer may “exclude” the employee from the workplace. That does not, the EEOC cautions, necessarily mean termination.
In addition, the EEOC cautions employers who administer vaccines directly or via third-party that the prescreening process may elicit disability-related information and thereby implicate ADA compliance mandates. It further cautions that such prescreening unlawfully might elicit information protected under the Genetic Information Nondiscrimination Act (GINA). So the EEOC suggests that an employer ask the employee for written proof of vaccination by the employees’ own medical provider, advising as well that that no other medical or genetic information should be contained in that certification.
Also glaringly absent from the guidance is confirmation that all of the questions and answers apply to an vaccine that has only emergency application, and therefore limited FDA approval.
Finally, it is important to remember that the EEOC is only federal. Its California counterpart, the Department of Fair Employment and Housing (DFEH), so far is silent on the vaccine.
This is a bit of a minefield. In a perfect world, the employer should wait for further federal and state guidance on mandating/administering these vaccines. If an employer elects to mandate or facilitate the vaccine, it should consult with its employment counsel on creating a policy and strategizing the most compliant manner of implementing it.
An employer For continuous updates on this and all COVID-related laws, visit:
- E-book: Navigating COVID-19: A Legal Guide for California Employers.
- COVID-19 Resources published by Michael Sullivan & Associates LLP.
- (1949) 91 Cal. App. 2d 884
- (1983) 33 Cal. 3d 729
- (1996) 61 CCC 1145
- You can review this material at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws; scroll down the page to Section K. Vaccinations.