News

February 02, 2021

COVID-19 VACCINE: MISSOURI WORKERS’ COMPENSATION AND COMMON QUESTIONS

With the recent development and release of COVID-19 vaccines, we received questions from our clients about whether (1) an employer can mandate a vaccine, and (2) potential workers’ compensation liability if they do so.  Certainly, employers have an interest in keeping their employees safe from both health and liability perspectives, but must also consider the legal implications of mandating or even encouraging vaccines before allowing a worker to return to the workplace.

Can an employer mandate that employees receive the COVID-19 vaccine?

Generally, yes, employers can require employees to receive a vaccine.

Under the Americans with Disabilities Act of 1990 (ADA), employers can evaluate circumstances that pose a significant risk of substantial harm to the health or safety of individuals in the workplace.  One such risk employers may seek to mitigate is the number of employees who may choose not to receive the COVID-19 vaccine, leaving them vulnerable to infection.  Like flu shots being required in the workplace, employers may determine the COVID-19 vaccine is similarly important to ensure a safe work environment, and can require employees to be vaccinated.

Further, the Equal Employment Opportunity Commission (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.”

Exceptions

An employer cannot simply require every employee to receive a vaccination without exception.  An employer must make accommodations for sincerely held religious beliefs and ADA disabilities.  Employers should try to provide a reasonable accommodation if an employee objects to vaccination for either above-listed reason.

Employers can take steps to mitigate the risk of the unvaccinated employee potentially spreading COVID-19 in the workplace but should not automatically bar the employee from the workplace.  If reasonable accommodations cannot be made (those that do not pose an undue hardship), the employer may be able to bar the employee from the workplace but should consider whether that employee can work remotely.

Employer Liability Concerns

If an employer mandates vaccination and an employee suffers an adverse reaction, would that constitute a compensable workers’ compensation claim?

While such cases have not yet been tested in courts with respect to COVID-19, similar cases suggest that adverse reactions to mandatory, and even voluntary, vaccinations may form the basis for a viable workers’ compensation claim.

In Shanks v. Heartland Regional Medical Center, No. 13-100429, Claimant was a cardiac monitor technician who alleged a series of conditions and symptoms as a result of a reaction to an employer-provided flu shot.  The employer required all employees to obtain the flu shot but allowed reasonable accommodations if necessary.  Claimant received medical treatment for her symptoms, but there were no objective findings of any symptoms that could be traced back to the flu shot – rather her treating physician attributed her symptoms to a psychological disorder.  The ALJ and the Commission found the flu shot was not the prevailing factor for the claimant’s psychological condition because she experienced similar psychological symptoms prior to the vaccination and because there were no objective symptoms that could be connected to the flu vaccine.  The Commission noted an injury is not compensable merely because work was a triggering or precipitating factor.  To be compensable, the injury must be the prevailing factor in the current condition of ill-being.  In this case, the claimant’s theory that her psychological condition was triggered by an adverse reaction to the flu vaccine was not supported by the evidence.

It is also important to note that in April 2020, Governor Parson implemented an emergency rule which established a presumption that first responders infected by or quarantined due to COVID-19 are deemed to have contracted a contagious or communicable occupational disease arising out of and in the course of the performance of their employment. See Mo. Code Regs. Title 8 § 50-5.005.  However, a first responder is not entitled to the presumption if a subsequent medical determination finds clear and convincing evidence that the first responder did not have COVID-19 or contracted or was quarantined for COVID-19 resulting from exposure unrelated to the first responder’s employment. Therefore, in most, if not all cases, it would be prudent for an employer/insurer to deny first responder COVID-19 claims and investigate non-employment exposure and whether a COVID-19 diagnosis was confirmed in these claims.  The provisions of the emergency rule will expire when the state of emergency declared by the State expires.

Can an employer be found liable if it encourages an employee to get the vaccine?

In Doyle v. Lakeland Regional Hospital, No. 05-141082, a healthcare worker who had a severe reaction (transverse myelitis) to a flu shot was able to collect worker’s compensation benefits even though the vaccine was not mandatory and not an “accident” as a matter of law.  Doyle’s employer did not require employees to have flu shots, but allowed employees to obtain them on the employer’s property during their shift (approx. 50% of employees participated and there was no evidence of penalty for not participating).  The Commission concluded that the shot itself was not a compensable accident but the reaction to the shot was an accident and an “unexpected traumatic event” because it was identifiable by time and place of occurrence, produced objective symptoms of an injury, caused by a specific event, during a single work shift.  Therefore, the adverse reaction was deemed an accident. The Commission then focused on a second issue: whether the injury was the prevailing factor in causing the injury.  The employee was administered the inoculation by an agent of employer, on employer’s premises, and during employee’s work shift.  Receiving the inoculation was not a condition of employment, but employer offered inoculations to employees on a voluntary basis.  Employer offered these voluntary inoculations because: (1) the CDC and the Missouri Dept. of Health recommended vaccines for health care workers, such as employee; and (2) the inoculations were a method to help prevent infections in not only patients, but also employees. The Commission found a clear nexus between the work and the injury and said there was no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life.  Under this two-part analysis, the Commission affirmed the ALJ’s decision and found the employee’s transverse myelitis was a compensable injury that arose out of and in the course of her employment.

COVID-19 creates ever-evolving implications; we will be here to continue to provide updates.  In addition to Missouri, our team is ready to discuss similar advocacy-based positions pertaining to any claims you have in Illinois, Indiana, Iowa, Kansas, Nebraska, and Wisconsin.  If you have any questions about the impact of COVID-19 on your business, and possible precautions you can take from a legal standpoint, please contact us at Wiedner & McAuliffe by email or phone at (314) 721-3400, or visit our website at www.wmlaw.com