With the recent good news surrounding the development and release of COVID-19 vaccines, we received questions from our clients on whether (1) an employer can mandate a vaccine, and (2) potential workers’ compensation liability. Certainly, employers have an interest in not only keeping their employees safe from both a health and liability perspective, but there are legal implications that still need to be considered when mandating, or even encouraging vaccines to allow a worker to return to the workplace.
Can an employer mandate the COVID-19 vaccine?
The EEOC recently provided some guidance on this issue. Employers must show that requiring a vaccination is “job-related and consistent with business necessity.” There are certain professions such as those working in hospitals, healthcare, first responders, teachers, transportation, and manufacturing, where the employer would have a stronger argument in favor of the vaccine mandate. Where the job requires close interaction with others, or the public at large, requiring a vaccination could be considered, “job-related and consistent with business necessity.” However, if a worker demonstrates that a disability or religious belief prevents he or she from a vaccination, then employers are required to provide a reasonable accommodation. Comparatively, there may be a weaker argument for a mandatory vaccine for those working in an environment with less interaction with others.
If an employer mandates an employee get the vaccine and the employee suffers an adverse reaction, would that constitute a compensable workers’ compensation claim?
If an employee has an adverse reaction to a vaccination, the employee would need to prove that he or she was exposed to a greater risk than other members of the general public to stage a compensable case. Fortunately, there is IWCC precedent that addressed compensability of adverse reactions to vaccines. In Visconti v. Hill-Rom, 13 IWCC 0736, the employer mandated the flu shot and the employee had an adverse reaction. Despite it being mandatory, the Commission found it not compensable stating the employee did not prove they were “exposed to any greater risk than any other member of the general public.”
There is a public policy argument to vaccinate as many people in the shortest amount of time as possible. It remains to be seen if the Illinois General Assembly will take any further action similar to the 2020 law implementing a rebuttable presumption for COVID-19 claims, in an effort to insure as many people as possible are vaccinated. However, based on the studies to date, we would anticipate workers’ compensation benefits to be minimal in a majority of cases.
What if the employer encourages an employee to get the vaccine?
Merely encouraging employees to get vaccinated makes it more difficult for the employee to prove an increased risk. In, Stolleis vs. Bunn Capitol, 96 IIC 1349, the employer offered a voluntary flu shot at the employer’s expense. The employee had an adverse reaction. In that case, the Commission ruled that obtaining the flu shot did not expose petitioner to an increased risk incidental to his employment.
The threshold question will be whether the worker was exposed to a greater risk than that of the general public. Employees working in health-care, first responders, and some essential workers will likely have an easier time meeting this threshold than other workers.
COVID-19 is an ever-evolving situation, and we will be here to continue to provide updates. In addition to Illinois, our team is ready to discuss similar advocacy based positions pertaining to any claims you have in Missouri, Indiana, Iowa, Kansas, Nebraska, and Wisconsin. 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.
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