Litigation Around COVID-19 Vaccines 'Likely' in 2021

Sarasota, FL (WorkersCompensation.com) – With COVID-19 vaccines becoming increasingly available, employers are assessing their options. There are myriad questions for them to consider.

“Will Public entities require their workers to be vaccinated? Will customers entering a retail store, or boarding an airplane or bus expect that staff and customers are vaccinated? Will coworkers request specific assignments to avoid exposure to workers not vaccinated?” said Kimberly George, SVP of Corporate Development, M&A and Healthcare for Sedgwick.  “Employers can require workers to be vaccinated – with some limits.”

‘COVID Vaccine Considerations’ was among the 20 issues to watch during the first Out Front Ideas with Kimberly and Mark webinar of 2021. The annual webinar focuses on the topics that George and co-host Mark Walls, VP of Communications and Strategic Analysis for Safety National, believe should be closely monitored by employers and insurers in the new year.

COVID-19 Vaccines

Mandating employees to get vaccinated can be tricky for employers. While some workers may not want to get the vaccine, employers must balance those desires with their duty under OSHA to provide a safe workplace. Organizations will need to determine if there is a real hazard presented if someone is not vaccinated.

This may be particularly problematic for smaller companies that have been struggling to survive. They have “significant concerns, with business continuity and being able to open, they will likely mandate the vaccine and, unfortunately, reinforce some employment laws via litigation,” George said. “There is likely 2021 litigation around the vaccine. We anticipate a sympathetic court, however, given the lives lost to the virus and business interruption already experienced.”

Some workers may be exempt from a vaccine requirement by their employers, based on Title 7 workplace rights or the Americans with Disabilities Act. “If an employee can’t get vaccinated due to a disability or sincerely held religious beliefs and there is no accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace,” she said. “This does not mean the employer may automatically terminate the worker.”

Deciding whether to mandate vaccinations by all employees is only one of the issues facing employers. Another concerns the logistics. “If employers mandate the vaccine, the distribution of the vaccine can be very challenging,” George said. “Who is to administer the vaccine? How do you coordinate vaccination schedules, secure documentation of doses and ensure compliance?”

George advises organizations to look at the recommendations published last month by the Equal Employment Opportunity Commission. “Essentially, following EEOC recommendations, communicating properly and documenting your expectations and process is a role in ultimately what the outcomes will be.”

One additional question on the minds of many employers considering vaccine mandates is whether adverse reactions experienced by workers required to get the vaccine should be covered.

“There is lots of caselaw out there,” Walls said. “But taking all that under consideration, from what I’ve read, it’s more likely than not that adverse reaction would be covered under workers’ compensation, depending on the state and depending on the facts.”

Redefining Workers’ Compensation

Throughout its history, workers’ compensation has evolved to include such things as occupational diseases and cumulative injuries. Most states have adopted so-called presumptive laws, that provide an easier path for certain workers to obtain workers’ compensation benefits. Where the system generally requires the injured worker to prove his injury resulted from work, presumptions place the burden of proof on employers to show work did not cause a particular injury.

Presumption laws on the books prior to the pandemic generally related to medical conditions suffered by first responders. COVID-19 saw a number of states enact laws or executive orders making the virus a presumption.

The laws differ depending on the jurisdiction. While some cover healthcare workers, others pertain to those deemed ‘essential workers.’ In one state grocery store workers are covered but pharmacy workers are not. Walls and George see this as a problem for the industry

“Workers compensation was designed to cover risk particular to the employment; it was not designed to cover a global pandemic impacting millions of people around the world. But here we are,” Walls said. “Politicians were looking for a way to cover the cost of COVID and workers’ compensation was an easy target. There will likely be more of these laws passed in 2021.”

There are concerns in the industry that such presumptions open the door for future disease outbreaks to be covered under workers’ compensation, increasingly blurring the lines between workers’ compensation and group health. Examples of this include:

California, where some group health carriers have denied coverage for COVID-19 treatment and required workers to file workers’ compensation claims.

Arizona, where lawmakers are considering making all cancers work-related for fire fighters with a presumption that cannot be disputed.

New Hampshire, where a proposed bill would classify suicide by a first responder as an occupational death eligible for workers’ compensation.

“As workers’ compensation continues this expansion, some employers are questioning if they’d be better off with 24-hour coverage rather than paying for the same exposures under both workers’ compensation and group health coverage,” Walls said.

Political Polarization

The year 2020 saw political differences intensify throughout the country, creating an “us vs. them” mentality, the speakers said. This is spilling over into the workplace and is an issue that employers are advised to monitor and address.

“It prevents compromise and undermines the public trust in information,” Walls said. “This erosion of public trust was an impediment in our response to the COVID pandemic.”

Repairing that trust and forging a sense of togetherness will take much effort by all, the speakers advised.

“We challenge all of you to do what you can to focus on the things that unified use; talk less and listen more; seek out facts rather than relying on emotions to drive your decisions,” Walls said. “Rather than just condemning those you disagree with try to find common ground with them. We need to all work together to produce better outcomes for everyone, to restore public trust and to provide a better path forward for everyone.”

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