COVID-19 Vaccines and Employer Liability

Employers are exploring their options for mandating or encouraging workers to get COVID-19 vaccinations.  They may even want to offer vaccines onsite when they are available.  So can an employer be held liable if a worker has an adverse reaction to the vaccine?

The safety of the vaccines currently approved by the FDA, combined with employer’s strong defenses in such a matter, means that employer liability will be extremely rare in such circumstances.

Workers’ Compensation Coverage

A severe allergic reaction to the vaccination is possible but rare.  Given the low risk associated with the vaccine, in addition to the fact that any unforeseen adverse reactions are the result of the vaccine itself, and not the administration of same, it is unlikely that employers will be held liable for such side effects.

In addition, employers that mandate or encourage employees to get vaccinated will likely partner with a health care provider or other authorized entity to administer the vaccine, thus further lowering any exposure to liability.

Finally, since any employer-mandated vaccine is considered a part of work, any adverse reaction should be covered by workers’ compensation.  In fact, workers’ compensation has been an employee’s only recourse for other employer-required vaccinations.  Nevertheless, employers should check with their workers’ compensation insurance carriers to confirm that the COVID-19 vaccine is covered by its policy.

Finally, even if an employee is injured by a vaccine injection, the employee would still have to demonstrate negligence on behalf of the employer in order to hold his/her employer liable.

 

Who Should Be Vaccinated?

 

Employers determining which employees should be mandated to obtain the vaccination will be largely driven by the nature of the employer’s business, as well as the nature of a particular employee’s job duties.  This could include employers in the health care industry and related industries, such as senior care.  Other factors to consider will most likely include how closely employees work with other employees, and whether the employee is “public facing”.

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