COVID-19 Vaccinations & Liability Issues

Since the earliest days of the COVID-19 pandemic, governments and pharmaceutical companies around the world have been focused on developing a vaccination to fight the virus. In March, the federal government established Operation Warp Speed through the Department of Health and Human Services (HHS). According to the HHS website, the goal was “to produce and deliver 300 million doses of safe and effective vaccines with the initial doses available by January 2021, as part of a broader strategy to accelerate the development, manufacturing, and distribution of COVID-19 vaccines, therapeutics, and diagnostics (collectively known as countermeasures).”  Operation Warp Speed is a joint operation of HHS, the Centers for Disease Control and Prevention (CDC), the National Institutes of Health (NIH), the Biomedical Advanced Research and Development Authority (BARDA), and the Department of Defense (DoD).

These efforts have recently resulted in the production of vaccines by pharmaceutical giants Pfizer and Moderna, and delivery of these vaccines to the states has already begun. First in line to receive these vaccinations have been front-line health professionals and other first responders.

With the roll out of these vaccines, employers are faced with various issues concerning whether to mandate vaccinations for employees. The following will address some of these issues and outline the various laws and guidelines that come into play, as well as potential liability faced by employers.

Equal Employment Opportunity Act (EEOC)

The Equal Employment Opportunity Commission (EEOC) has determined that employers can in fact mandate vaccinations by its employees and has offered guidelines with regard to exceptions. A recent article by Alexia Elejalde-Ruiz of the Chicago Tribune provides an informative summary of the guidelines put forth by the EEOC on December 16, 2020 (“What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO Laws”).

Illinois Workers’ Compensation Act

As a federal agency, the EEOC is not responsible for the administration of state-level workers’ compensation laws. Section 11 of the Illinois Workers’ Compensation Act, however, contains language concerning the employer’s potential liability for injuries, diseases or death arising from the administration of a vaccination:

“Vaccines

Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act. This paragraph added by this amendatory Act of the 93rd General Assembly is declarative of existing law and is not a new enactment.” 820 ILCS 305/11

Illinois Public Health Code

As noted above, the EEOC has issued guidelines concerning mandatory vaccinations of employees. In addition, the Illinois Public Health Code provides “[e]ach health care setting shall ensure that all health care employees are provided education on influenza and are offered the opportunity to receive seasonal, novel and pandemic influenza vaccine, in accordance with this Section, during the influenza season (between September 1 and March 1 of each year), unless the vaccine is unavailable (see subsection (d)).” Illinois Public Health Code, Section 956.30 (Source:  Amended at 43 Ill. Reg. 2597, effective February 6, 2019)

While this section of the Public Health Code does not specifically require a health care worker to undergo a vaccination, it only allows an employee to decline such a vaccination for three reasons: the vaccine is medically contraindicated for the employee, the vaccination is against the employee’s religious beliefs or the employee has already been vaccinated. In addition, the section specifically states:  “[g]eneral philosophical or moral reluctance to influenza vaccinations does not provide basis for an exemption.  (Section 2310-650 of the Act)” It could be argued the limited exemptions create a de facto state-mandated flu vaccination program for health care workers.

McAllister v. Illinois Workers’ Compensation Commission

In light of the above, as well as the recent Illinois Supreme Court decision in McAllister v. IWCC, there is a very good chance the Commission would find any injuries, diseases or death to an employee as a result of a mandatory COVID-19 (or other) vaccination to arise out of and in the course of employment. In McAllister, the Court held “a risk is distinctly associated with an employee’s employment if, at the time of the occurrence, the employee was performing (1) acts he or she was instructed to perform by the employer, (2) acts that he or she had a common-law or statutory duty to perform, or (3) acts that the employee might reasonably be expected to perform incident to his or her assigned duties. McAllister v. IWCC, 20 IL 124848 (2020), citing Caterpillar Tractor, 129 Ill. 2d at 5820. A mandatory vaccination would certainly fall under the category of an act “he or she was instructed to perform by the employer,” and for health care workers in particular, it may also fall under the category of an act “he or she had a common-law or statutory duty to perform” pursuant to Section 956.30 of the Illinois Public Health Code.

Final Word…

An employer will need to balance the potential costs and benefits of a mandatory vaccination program in light of the above laws and guidelines issued by various government agencies. On the one hand, an adverse side effect from a vaccination may create potential liability from a workers’ compensation perspective. On the other hand, side effects of vaccinations are generally rare and typically mild when they occur, and an employer may find the benefits of a vaccinated work force outweigh the workers’ compensation liability risks. To that point, we are already defending claims filed by employees alleging exposure to COVID-19 in the workplace; it is likely the potential liability arising out of a COVID-19 infection will generally outweigh the potential exposure arising out of the side effect of a COVID-19 vaccination. An employer should consult its employment and workers’ compensation attorneys for more detailed advice in this regard.

As the law in this area evolves, we will continue to keep you advised of all relevant updates and welcome any specific questions or comments.