Originally Published on WorkCompCentral as authored by Mark Powell on July 28, 2021
“It seems reasonable to conclude that these measures are being put in place to protect employees. We use a lot of different safety measures to protect employees, and Cal/OSHA, in theory, anyways, enforces those measures. The burning question is, why would this be any different? If the answer is that it isn't different, then these mandates should stand the muster and withstand legal challenges. If there is a reason to differentiate vaccinations and other safety measures in the workplace, then that is where the controversy will continue.” Alan Gurvey
Now that California is requiring some employees to either be vaccinated against COVID-19 or submit to weekly testing, the state’s workers’ comp system could field more claims reporting adverse reactions from the inoculations, comp experts said. But for many employers, whether those claims are compensable could hinge on whether they mandate the vaccines or allow workers to get the shots on a voluntary basis, they said.
“In my opinion, in the state of California, if a vaccine is mandated by any employer — and the law allows employers to mandate the vaccine — any adverse reaction absolutely without a doubt would be covered by the workers’ comp system,” said Amanda Manukian, senior partner at Thousand Oaks comp defense firm Floyd, Skeren, Manukian & Langevin. “It would be deemed compensable.”
Gov. Gavin Newsom on Monday announced that health care workers and state employees must show proof of vaccination or be required to wear masks and be tested for the virus “at least weekly.”
Newsom also encouraged private employers and all levels of local government to adopt similar protocols, saying that California is “now dealing with a pandemic of the unvaccinated.”
California leads the U.S. in vaccinations, with about 75% of the eligible residents receiving at least one dose, Newsom’s office said.
As the new delta variant has become the dominant COVID strain, however, California’s infection rate “more than quadrupled,” from just under two cases per 100,000 people each day in May to more than nine cases per 100,000 as of last week, Newsom’s office said.
The overwhelming majority of new cases in California — including nearly 3,000 hospitalizations in July alone — are among those who aren’t vaccinated, state health experts have said.
Manukian called the state’s announcement “a smart approach to take,” in part because many workers may eventually opt to get vaccinated to avoid the burden of weekly testing.
“It’s respecting people’s individual liberties while still putting emphasis on the fact that vaccinations are critically important,” she said. “I’ve been tested for COVID on several occasions, and it’s not fun. I can’t imagine doing that every week.”
Workers filing claims for unintended side effects from vaccines also is nothing new, Manukian said. In some pre-COVID cases where health care workers filed claims for vaccination side effects, there was “no question” that their condition was compensable, she said.
“Because it's an employer-instructed, employer-directed process,” Manukian said. “However, in this situation where the employer is not absolutely mandating it but gives options, I think that in that situation you have to look at other facts to make that call. Given that we are in a liberal state and decisions usually are made in favor of the injured worker, you do have to look at other facts.”
For example, an employer of a convalescent home might not mandate that workers be vaccinated, but a supervisor still might post notices that explain the benefits of vaccines and generally encourage people to get them, she said.
If a worker suffers side effects from the vaccine, compensability could be determined by whether the employer takes a passive approach and provides widely distributed information about COVID vaccines, or if he goes “above and beyond” and offers incentives to encourage workers to get vaccinated, Manukian said.
“To me, if someone gets vaccinated and has a side effect, it's a whole lot different than an employer who not only does posts all this stuff, but they say, ‘I will give you a full day’s paid leave if you go get vaccinated,’ or ‘I will give you a $100 gift certificate if you get vaccinated,’” she said. “That’s a little different because now you have tremendous employer involvement that is beyond mere education that is displayed throughout every channel you watch, every newspaper you read, that is encouraging vaccinations. I think that’s the difference you have to look at — to what extreme the employer goes through to encourage the vaccination.”
Michele Tucker, vice president of enterprise comp operations for CorVel Corp., said California's new vaccine protocol is necessary to slow the uptick in COVID cases.
And in most states, adverse effects that are directly tied to vaccination would fall under the workers’ comp umbrella, she said.
CorVel already has seen claims from workers who said they’ve had vaccine reactions under their employers’ mandatory programs, Tucker said.
“And in the preponderance of states, although they’ve been transient and minimal in nature, they were found to be compensable under workers’ comp,” she said.
Because of the way the state’s dual-option vaccine plan is spelled out, however, Tucker said she expects some litigation over whether workers who suffer reactions will receive benefits.
“If an injured worker successfully argued that there was either an expectation, pressure in the work environment or some kind of discrimination, all of those could lead to potential actions as well for workers’ comp, and potentially the compensability of a vaccine reaction,” she said.
Overall, there’s also less risk in employers pushing workers to get vaccinated than there is figuring out alternative plans for workers who refuse, Tucker said.
“To me, the biggest risk is ensuring you have really good language for people who request exclusions,” she said. “And what kind of compliance or job protection or job responsibilities and alternative work would you have available in those situations where an employee asks for an exception or refuses to get vaccinated? To me, the biggest risk lies in not so much a vaccination reaction — it's the people who don't participate in the vaccination process.”
If government officials at any level compel vaccines or mandate that an employer require vaccination as a condition of employment, there may be a legal causation issue, said Michael Duff, a University of Wyoming professor and workers’ comp expert.
But employers or their carriers could argue that the vaccine side effects did not “arise out of” employment because employment did not “increase the risk” of the vaccine injury, Duff said.
“The injury could, of course, be covered under the positional-risk rule, especially since receipt of the vaccine would in any event further the interests of the employer,” he said. “Additionally, if the vaccine is delivered off-premises, the argument could be made that any resulting injury did not occur in the course of employment, though if the vaccine were required by the employer it should probably fall under one of the special mission exceptions.”
Duff said mandating vaccinations also could raise constitutional issues depending on what state protocols mean by the word “mandate.”
“I suspect this explains why discussion of a mandate has subtly shifted to an escape valve,” he said. “You must receive the vaccine or agree to being regularly tested.”
Alan Gurvey, an applicants' attorney and managing partner of Rowen, Gurvey & Win in Sherman Oaks, said many people believe vaccinations promote the greatest good for society and should be mandated.
While keeping in mind verifiable exceptions for medical and religious reasons, mandating certain actions such as vaccines to attend sporting events, movies or visit the workplace “may then be appropriate,” he said.
“It seems reasonable to conclude that these measures are being put in place to protect employees,” Gurvey said. “We use a lot of different safety measures to protect employees, and Cal/OSHA, in theory, anyways, enforces those measures. The burning question is, why would this be any different? If the answer is that it isn't different, then these mandates should stand the muster and withstand legal challenges. If there is a reason to differentiate vaccinations and other safety measures in the workplace, then that is where the controversy will continue.”