COVID-19 VACCINE: ILLINOIS WORKERS’ COMPENSATION AND COMMON QUESTIONS; ADDENDUM
January 07, 2021
In our last alert, we discussed the threshold question for compensability of workers’ compensation claims arising out of adverse reactions to the COVID-19 vaccine. As a point of clarification, we wanted to make our clients aware of Section 11 of the Illinois Workers’ Compensation Act and Section 1(d) of the Occupational Diseases Act as well. These sections state that an injury, disease, or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment.
This language was enacted post-September 11, 2001, and at least from a first read, appears to be limited to those vaccines in response to a bioterrorist attack. Additionally, the case law concerning workers’ compensation claims involving adverse reactions to vaccines, make no mention of Section 11 of the Illinois Workers’ Compensation Act, or 1(d) of the Occupational Diseases Act. Instead, those cases indicate the threshold question will be whether the worker was exposed to a greater risk than that of the general public. Regardless, some practitioners may contend that the disjunctive “or” and phrase “in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation” expands the applicability of these sections to include vaccines for COVID-19. Such an expansive interpretation should be rejected as at odds with principles of statutory construction; we would highlight the expressed limiting language of these sections.
If you have any questions on the impact of COVID-19 on your business, and possible precautions you can take from a legal standpoint, please contact us at Wiedner and McAuliffe by email or phone at 312-855-1105, or visit our website at www.wmlaw.com.