Now that the State of Illinois is fully reopened, businesses are faced with questions on employee vaccination status. Among the most common considerations are whether an employer can mandate a vaccine, and the potential liability should an employee suffer an adverse side effect. In part two of our three-part series on the return to work after the COVID-19 pandemic, we address some of the common questions we have received from clients on the COVID-19 vaccine.
A. Can an employer require employees to receive a COVID-19 vaccine to physically return to the workplace?
While some states have proactively enacted policies prohibiting such requirements, under federal equal employment opportunity laws, nothing prevents an employer from requiring employees that physically enter the workplace to be fully vaccinated against COVID-19. At the same time, any vaccine requirement policy remains subject to reasonable accommodation provisions of Title VII of the Civil Rights Act and the Americans with Disabilities Act, namely considering those who refuse or cannot receive the vaccine due to a disability or religious reason. As a best practice, when mandating employees to be fully vaccinated to reenter the physical workspace, employers should consider requests from employees for reasonable accommodations based on a disability or religious reason. Please see our prior alert here, for a more in depth discussion about mandating the COVID-19 vaccine to physically reenter the workplace.
B. What are the implications of an adverse reaction to the COVID-19 vaccine if the employer mandates the vaccine?
Section 11 of the IL WC Act and 1(d) of the Occupational Diseases Act addresses vaccines. This language was enacted post-September 11, 2001, and at first glance, appears to be limited to those vaccines in response to a bioterrorist attack. Additionally, case law concerning workers’ compensation claims involving adverse reactions to vaccines, generally make no mention of Section 11 or 1(d). Instead, those cases focused on the threshold question, whether the worker was exposed to a greater risk than that of the general-public.
Considering how many members of the public will likely get the vaccine, under a strong public policy purpose applied to everyone, an increased risk argument under an employer mandated policy should be substantially weakened. It is always possible that there can be exceptions where an employee may argue that because the vaccine is employer-mandated, any consequences thereof become an employment-related risk. However, without a unique fact pattern, presently this may be a high burden for an employee to overcome. Based on these considerations, employers should have a strong basis to deny a claim stemming from an adverse reaction to an employer-mandated COVID-19 vaccine. However, it should be noted that the IWCC has yet to address compensability of an adverse reaction to the COVID-19 vaccine.
C. What are the implications of an adverse reaction to the COVID-19 vaccine if the employer encourages (but does not mandate) employees to obtain 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.
Be on the lookout for part three of our return-to-work series, where we will address compensability of COVID-19 workers’ compensation claims, as the “rebuttable presumption,” expired on June 30, 2021, absent updated legislation. If you have any questions about employers and vaccine mandates, and the appropriate considerations to make as businesses physically reopen, please contact firstname.lastname@example.org, or any one of our attorneys at Wiedner and McAuliffe by email or phone at 312-855-1105.
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