Vaccine Mandates Raising Workers’ Compensation Issues for Employers

With how disruptive the COVID-19 pandemic has been for businesses around the world, employers are eager to get their workforce back to “normal” as soon as possible. To accomplish this goal, many employers are mandating or requiring that their employees get the COVID-19 vaccine.

The federal government has granted blanket immunity to companies like Pfizer, Johnson & Johnson, and Moderna if something unintentionally goes wrong with their vaccines. Likewise, suing the FDA is out of the question based on sovereign immunity. But what about private employers here in Pennsylvania who mandate the vaccine? Is an employer liable for a so-called “vaccine injury” under the Pennsylvania Workers’ Compensation Act? It all boils down to the question of how much control or direction an employer has over its employee receiving the vaccine.  

The Pennsylvania Workers’ Compensation Act defines an injury as one that arises in the course and scope of employment and [is]related thereto…including aggravation, reactivation, and acceleration of pre-existing conditions.” (Section 301(c)(1)). As a general threshold, in order for a claim to be compensable an employee must establish that he/she sustained an injury or illness, within the course and scope of his/her employment. If an employer mandates that an employee receive a vaccine in order to be on the work premises, and the employee has some sort of severe reaction or “vaccine injury,” the employee could be entitled to workers' compensation benefits. The more control an employer plays in requiring its employees to get the vaccine, the stronger the employee's argument that any adverse reaction from the vaccine arises out of and in the course of employment. For example, if an employer directs an employee to obtain the vaccine, and offers the injection on site, during work hours, this is a rather straightforward scenario in which the employer is likely responsible for any “vaccine injury.” But, what if an employer says it “recommends” or “encourages” its employees to get vaccinated, the employee goes to an offsite clinic, obtains the vaccine, and ends up with an injury?  This scenario is a bit murkier than the one above and the employer liability would likely be a question for the judge.  Again, while not an exclusive factor, the amount of control is key.  

Some relevant questions to consider include whether the vaccine is required, voluntary, or “strongly encouraged, “if it’s administered offsite or onsite at the employer’s business, or if it is paid for by the employer.   

The good news is that vaccine injuries seem to be relatively small in number of occurrence and minor in scope. However, vaccine injuries will likely remain a possibility as more variants are popping up around the globe. Understanding the legal implications of mandating vaccines and the nuances in how those mandates are presented is prudent.