Last week, in his blog The WorkComp Writer, Thomas Robinson addressed yet another aspect of the ongoing COVID episode as it relates to workers' compensation. In his post “Do Employers Face Additional Liability for COVID-19 Vaccination Side Effects?,” Robinson discusses a question that was put before him by a member of the legal community. The questioner inquired as to whether his client's business “would face additional liability if–once the COVID-19 vaccines are generally available–it required all employees to be inoculated.”
Robinson does an excellent job of reviewing several scenarios where the employer may or may not have additional liability surrounding adverse reactions to the new vaccines. I won't attempt to emulate his work on that subject. However, he also touches upon a critical point in his introduction to the topic. He acknowledges the uniqueness of the COVID challenge, but also points out, “when it comes to legal issues, such as employer liability for side effects stemming from inoculation, depending upon the jurisdiction, we can be guided by a considerable body of case law reaching back to the early 1930s.”
In workers' comp, it seems the more things change, the more they stay the same. Beyond the specifics of inoculation, the premise of workers' compensation is fairly basic. We may disagree and argue over what employers should be responsible for, but in the case of COVID, perhaps we are overthinking this a bit.
Certainly people, including yours truly, have been critical of the liabilities unexpectedly thrust upon employers as they relate to the COVID pandemic. There are few, if any, prior examples of employers being held accountable for communicable diseases to which people are exposed to in the public arena. We can, and will, continue to debate the fairness of that as the episode continues to unfold.
What is not subject to the same debate, however, are the liabilities extending from specific employer requests or requirements. It struck me, while reading Robinson's analysis, that the answer to the original question as posed was quite simple. In almost all cases, liability for adverse reactions to an employer mandated vaccine is, at its core, no different than if an employee had been asked to run to the hardware store for batteries, and they were injured in the process. Both actions were at the direction of, and ostensibly the benefit for, the employer.
In this particular case, COVID is not really relevant. The specific action of requiring a vaccine is the point on which we should focus. And that process of “requirement” has a long and steady tradition when it comes to workers' comp laws around the nation. I made this particular point in the comments section of the WorkComp Writer blog, and Robinson responded with another excellent point. He acknowledged that there is “a tendency to think that every new problem requires a new tool with which to deal with it. That just isn't the case in workers' comp law; it's remarkably resilient because, as Arthur Larson noted in the late 40s and early 50s in his writing, the entire body of law springs from a one-sentence core provision: ‘that the system provides medical benefits and indemnity to employees for accidental injuries (and some illnesses) that arise out of and in the course of the employment.'” It a very straightforward assessment of the industry's continuing responsibility. And a reminder that, even in tumultuous times where everything seems upside down, standards exist that we can follow.
As long as we don't succumb to our tendency to overthink things.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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