Can You Get Workers’ Compensation For a Bad Reaction to a COVID Vaccine?
With the development of effective COVID-19 vaccines, and the distribution of the vaccine in the coming months, will come issues of whether employers can, or should require employees to get the vaccine. From the employee’s standpoint, one major question might be what happens if an employer-required COVID-19 vaccine gets you sick? Can you get workers’ compensation benefits if you are suck or unable to work because of a required vaccine?
As a general rule, it is anticipated that your employer will be able to require that you get a COVID vaccine as a condition to return to work or an office. In fact, many employers currently require employees to show proof of flu shots. In California, a court ruled that an employee could make a workers’ compensation claim, when the employee became sick after taking an employer-mandated flu shot. There are exceptions if you have some kind of medical condition which would make taking the vaccine dangerous.
But even if the vaccine is safe, every vaccine and medicine has some risk of side effects, and some people who experience adverse reactions. Many employers are starting to weigh the benefits of a fully vaccinated office, with the drawbacks-including the possibility of workers’ compensation claims.
Workers’ Compensation Coverage
If an employer requires a COVID vaccine, it is likely that the “injury”—the side effect caused by taking the vaccine—is an injury that occurred in the course and scope of employment, and thus, the worker could make a workers’ compensation claim. This may depend on whether an employer truly makes the vaccine mandatory, or just voluntary, with the former making it more likely that the injury would be covered under workers’ compensation.
However, because there is no actual vaccine yet, we don’t yet know how courts will rule on this issue–or whether states will issue guidance one way or the other on whether workers’ compensation should cover vaccine-related injury claims.
Suing for Negligence
Normally, the availability of workers’ compensation coverage prevents the worker from suing the employer in tort (that is, for full personal injury damages). There is one exception, which is when the employer acts intentionally, or with reckless disregard for the safety of the worker—a standard much higher than simple negligence.
Certainly, requiring a worker to get a vaccine is an intentional act, and a policy that is knowingly and intentionally instituted. It is not an “accident” when an employer tells an employee to get a vaccine. That would mean that the employee may be able to sue in tort, and get damages beyond workers’ compensation.
However, certainly if the employee has an adverse reaction, the employer did not intentionally injure the worker. The intention was for the worker to be vaccinated—not for the worker to get sick or have a bad reaction. That analysis could change if a large percentage of people get sick from taking the vaccine, and still, an employer requires it be taken.
You deserve medical care if you were injured while doing your job, for any reason. Call the Tampa workers’ compensation attorneys at Barbas, Nuñez, Sanders, Butler & Hovsepian. Schedule a consultation today.