Are Employers on the Hook for Adverse Reactions if They Mandate a COVID Vaccine?

As the United States starts to recover from the COVID-19 pandemic and return to something resembling normalcy, questions swirl about the variety of COVID-19 vaccines available. In particular, many employees wonder about the legality of requiring COVID-19 vaccinations and what happens if you suffer an adverse reaction.

Learn more about current guidance on this topic, and if you’re looking for assistance with a workplace injury claim, contact an attorney in your local area.

Is the Vaccine Work-Related and a Condition of Your Employment?

First, you have to ask the question: is the vaccine a condition of your employment? If you are required to get the vaccine to go to work, then any subsequent adverse events are work-related. This means that any adverse event suffered by an employee after a mandatory vaccine becomes part of the safety record. This is true whether you got your vaccine from a government facility, standalone clinic, or as part of a vaccine clinic at work.

Recordable Adverse Reactions

Recordable adverse reactions are defined under OSHA rules, which require employers with more than 10 employees to track work-related illnesses and injuries. The criteria for a recordable event is described under 29 CFR 1904.7 under OSHA laws.

Per OSHA, an event is considered recordable if it results in one of the following:

• Death
• Days off of work
• Restricted work abilities
• Transfer to another job
• Medical treatment beyond general first aid
• Loss of consciousness

Even if none of those criteria are met, an event may still be recordable if it results in a significant injury or illness as diagnosed by a physician or other licensed healthcare provider.

How Employers Are Responding

This guidance from OSHA, which was released on April 20, 2021, was greeted by a flurry of disapproval from contractors. They believe it is in direct contradiction of the government’s stated goal of getting as many people vaccinated as possible, as it gives employers incentive not to require the vaccine. They claim that it does the opposite and puts employers at risk for workplace injury claims if they do require the vaccine, even if they do so with the goal of protecting employees and consumers.

Quite a few contractors did require the COVID vaccine as part of returning to work. However, a substantial number of them are now changing course and simply recommending the vaccine for employees. This may drop vaccine rates and lead to community spread, which many employers have spoken out about.

This also raises questions for contractors working in certain areas. For example, those doing construction or remodeling work in a hospital may be at direct odds with the facility they are working on. It’s likely that the facility will house at-risk individuals and, as a result, require that all workers be vaccinated. This puts contractors in a bad position where they have to fulfill an obligation both to their employees and to their clients.

Staying On Top of Future Changes

Since this news is still very recent, it’s important to remember that this matter is far from settled. As has been the case since the start of this pandemic, everything is new and subject to change. Today, employers seem to be on the hook for adverse reactions if they require the COVID vaccine. However, that could change as new research comes out or there is significant pushback from employers across different industries. It is crucial for employees and employers alike to stay aware of changing OSHA recommendations and use those recommendations to better guide their decision-making process.

In particular, the construction industry is seeking further information and guidance regarding their vaccination requirements. In fields like this, liability and risks are considerably different than they are in other fields, and so vaccination standards may be different.

OSHA expects the COVID-19 emergency safety standard to be released in the latter half of 2021. It remains to be seen whether the standards will be the same as the current guidance, build on it, or completely override it.

If you suffer a workplace injury or illness, it’s important to explore your legal options. Find a workplace injury attorney in your area to get started.