Three COVID-19 vaccines are currently being distributed and administered under federal Food & Drug Administration (FDA) emergency use authorizations. As an employer, you may be considering whether you should require your employees to be vaccinated before they return to the workplace. You may also be concerned about your potential liability if an employee has a severe reaction to the vaccine, or if your unvaccinated employee infects others. You are right to be cautious about these risks and to ask questions about implementing a vaccination policy.
Previous California case law has established that an employee injured by a vaccination that is required by their employer may receive workers’ compensation benefits. When an employer provides or arranges for vaccinations for their employees, but the choice of receiving it remains voluntary, the issue of an adverse reaction being compensable becomes less clear. It all depends on the facts and circumstances of each case.
Based on the court precedents, two important criteria would likely determine whether an employee injured as a result of a COVID-19 vaccination is entitled to workers’ compensation. The first is whether the vaccination was “at the direction of the employer.” Imposing a vaccination requirement or as a condition of employment would probably make an adverse reaction to the vaccine compensable. The second element is whether the vaccination is “for the employer’s benefit.” If the vaccination status of an employee is important for the employee to be physically present at the worksite without accommodation, and the employee’s physical presence is essential to the conduct of business, then the vaccination is likely to be judged beneficial to the employer.
Since there is no regulatory guidance or legislative relief at this point, it is not advisable for an employer to make the COVID-19 vaccine mandatory. If you do decide to mandate vaccination as a requirement for employment or return to the workplace, you should seek legal advice. If an employee asserts that their adverse reaction to the vaccine is work related, a DWC-1 Claim Form should be provided within one working day.
As for the concern that not requiring vaccines could expose others to infection and you as an employer to liability, it is important that you comply with the measures of AB 685 and Cal-OSHA’s emergency temporary standard. These requirements address COVID-19 risk mitigation and response to possible workplace exposures and infections.