Currently, in the United States, two vaccines are authorized for emergency use and recommended to prevent COVID-19: Pfizer-BioNTech COVID-19 vaccine and Moderna’s COVID-19 vaccine. As of December 28, 2020, large-scale (Phase 3) clinical trials are in progress or are being planned for three COVID-19 vaccines in the United States. With the anticipation of vaccinations being able to reduce the spread of COVID-19 and to foster a safer work environment, employers should be mindful of the potential implications that may arise under the New York Workers’ Compensation Law, when contemplating whether to mandate or strongly recommend vaccinations among its employees.
Particularly, questions have arisen as to the compensability of claims brought by employees who have adverse reactions to or injuries arising from the vaccine. Are adverse reactions to a COVID-19 vaccination compensable under New York Workers’ Compensation Law?
Adverse reactions to medications/vaccinations are not unique to the COVID-19 vaccine. Thus, the compensability of adverse reactions to vaccinations is not a novel issue before the New York workers’ compensation board. A thorough review of New York case law reveals that the compensability of a “vaccine reaction” case will turn upon whether the injury and/or adverse reaction arose out of and in the course of employment.
Essentially, where an employee is required to get the vaccination, in order to continue to work, the costs of an adverse reaction will almost certainly be covered under workers’ compensation in New York.
In cases where the vaccine is not mandatory, but rather optional or voluntary, the board will consider several factors to determine whether the injury and/or adverse reaction arose out of and in the course of employment. Such factors included:
(1) Whether federal (e.g., Center for Disease Control) or state agencies/ departments (e.g., New York Department of Health) require that the immunization be offered to employees on a voluntary basis;
(2)Whether the employer encouraged voluntary participation in its immunization program and it is completed at the employer's expense, at the claimant's place of employment, or under the employer's direction;
(3)Whether the claimant was immunized in response to a specific health risk posed by her work environment, thus creating a nexus to the claimant’s employment; and
(4)Whether the employer derives a benefit from the claimant getting vaccinated(e.g., the benefit of employees not getting sick, missing time from work, and/or exposing patients/customers and others to health risks in their facilities).
The board’s consideration of the above-referenced factors is illustrated in Matter of Mt. Sinai Medical Center, Case No. G0695787, 2015 NY Wrk. Comp. LEXIS 11474 (12/02/15). In that case, the claimant was a social worker for Mount Sinai Medical Center who reported receiving a recommended seasonal flu vaccine on October 17, 2012. Id. at 1. Per the claimant, the medical student administering the vaccination placed the needle too high, which caused the claimant to have decreased strength and mobility over the next month. Id. at 1-2. During the litigation of the claim, the claimant testified that the flu vaccination was required as part of her position, but the employer asserted that the vaccination was optional. Id. at 2. The claimant presented documentation from the employer that the vaccination for health care workers was recommended by the CDC. Id. Furthermore, if the claimant did not receive the vaccination, she would be required to wear a surgical mask from October to March, which the claimant felt would hinder her duties and ability to be effective. Id. The claimant’s physician, who was also an employee of Mount Sinai, opined that the claimant’s left shoulder pain was causally related to the flu vaccination. Id. The doctor also testified that while there was an alternative option to the flu shot for employees – i.e., wearing a surgical mask – it was “pretty unusual to see that.” Id. at 2-3. The claimant’s supervisor also testified that the flu shot was “strongly recommended to all direct clinical staff.” Id. at 3. The supervisor testified that in lieu of the flu shot, employees would be expected to wear a mask full-time in dealing with patients, which may make it more difficult to engage and talk to patients. Id. The workers’ compensation law judge (WCLJ)ultimately established the claim for an injury to the left shoulder, based upon the testimony of the claimant and her supervisor that the employer “strongly” suggested that employees get the flu shot and that the alternative would be to wear a mask full-time in dealing with patients, which would negatively impact on a social worker’s job performance in terms of speed and quality of evaluations. Id. at 3. The WCLJ found that the claimant had a “reasonable belief” that the flu shot was a mandated procedure and that she “felt compelled to do that to safely perform her work.” Id. at 3-4.
Upon appeal by the carrier, the board panel affirmed. The board cited the factors referenced above, noting that a vaccination program being voluntary and optional and not mandatory was not solely dispositive as to whether the injury arose out of and in the course of employment. Id.4-5. In support of its affirmance, the board panel noted that the testimony of the claimant and employer witness demonstrated that the employer strongly encouraged employees to participate and receive the flu shot on the premises. Id.at 5-6. Additionally, the board panel pointed out that due to the nature of the claimant’s work as a social worker, the flu vaccine was especially important for people at higher risk, including social workers, thus creating a nexus to the claimant’s employment. Id. at 6. The board panel further noted that the employer did benefit from employees receiving the vaccination, as it prevents employees from getting the flu, missing work, and exposing others to health risks at its facilities. Id. Based on the foregoing, the board panel found that there was sufficient evidence to find that the claimant’s injury arose out of and in the course of employment. Id.
In contrast, vaccine reaction cases have been disallowed on the basis that the injury did not arise out of and in the course of employment where immunization was voluntary in nature and also offered to the public at no charge, and there was no greater risk of being infected because of the employment, even where the vaccine was administered at the workplace. In Matter of Stabel v. Westinghouse Electric Corp., 79A.D.2d 842, 435 N.Y.S.2d 549 (3d Dept. 1980), the third department affirmed a board decision which found that the death of a worker as a result of an infection sustained through injection with “improper flu ingredients” during a swine flu program at the employer’s plant, did not arise out of and in the course of her employment, as the program was voluntary and had been made available to the public at no charge.
In sum, the board will consider a number of factors when determining whether an adverse reaction to a COVID-19vaccination arose out of and in the course of employment. Even when a vaccination is not mandated by the employer, adverse reactions/injuries have been found by the board to have arisen out of and in the course of employment. Thus, the compensability of such claims will be fact-specific. However, in contrast to the COVID-19 virus itself, the issue of compensability is not a novel one, and prior vaccination cases provide fairly straightforward criteria by which the compensability of such claims can be evaluated. This enables employers to take potential future workers’ compensation exposure for adverse reactions into consideration in assessing whether to mandate the COVID-19 vaccine for employees and in formulating potential vaccination programs, along with the many non-workers’ compensation considerations essential to such decisions. We continue to recommend consulting with defense counsel as early as possible upon reporting of any new COVID-19 related claims, including those involving vaccinations.