Last week Tyson Foods, a major employer in Nebraska, announced they would mandate vaccines for all employees. Employer-mandated vaccines have some obvious and less obvious implications for workers’ compensation.
If an employee is injured or has a bad reaction to a vaccine mandated by an employer, that should be covered by workers’ compensation. Employer-mandated vaccines take away the legal question of whether an employee who has a bad reaction to a vaccine would be covered by workers’ compensation.
But I think the more interesting question is what happens when a vaccination makes an injury worse. This question is particularly pertinent to issues like reactive arthritis which studies show can be aggravated by the COVID-19 vaccine.
In Nebraska, occupational and non-occupational causes can combine to cause a disability. This is consistent with Nebraska’s permissive contributing factor causation standard. But in other states with less permissive causal standards than Nebraska, an aggravation of an injury from a COVID vaccination may not be covered by a workers’ compensation statute.
Fortunately, workers in states where vaccine injuries may not be covered by workers’ compensation may be able to claim compensation through a federally-run fund that pays for vaccine-related injuries. It’s also possible that workers can collect both workers’ compensation benefits and vaccine fund benefits for work-related vaccinations or work injuries aggravated by vaccines.
I could see some employers trying to use the vaccine fund to pull a federal get-out-of-state-based-workers-compensation-laws card. For example, Tyson Foods attempted to argue federal law protected them from an Iowa state law claim stemming from managers betting about COVID deaths at an Iowa plant.
Long story short, I feel like there will be a lot of novel litigation in this area of the law over the next few years.
Of course, COVID vaccinations raises public policy and political questions in addition to legal questions. Studies show that 75 percent of unvaccinated people are low income. Lack of time to deal with side effects and fear about the side effects may be discouraging people from getting vaccinated. I believe workers need paid leave to deal with vaccination side effects. I also think job protection benefits similar to but separate from FMLA would be helpful.
At the beginning of the pandemic, law makers were eager to expand FMLA and paid leave through the FFCRA. While the FFCRA was extended earlier this spring to cover vaccine side effects, it still fails to cover many workers and it expires at the end of September. However nearly a year and a half into the pandemic there seems to be COVID compassion fatigue among policy makers.
In short, there may not be many carrots offered by the government or employers to get vaccinated. Meanwhile, it seems like employers are starting to mandate vaccinations. But while lawmakers may be slow to provide benefits to workers to get the COVID vaccine, I could certainly see legislation at a state level that would exempt employers from paying workers’ compensation benefits from vaccine reactions.