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Is An Adverse Reaction To An Employer-Mandated COVID-19 Vaccine Compensable Under The Pennsylvania Workers’ Compensation Act?

Pennsylvania
January 14, 2021
January 14, 2021
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If an employer “mandates” or affirmatively directs its employees to be vaccinated, then the employer’s actions will extend or expand the scope of liability for benefit payment, pursuant to the Pennsylvania Workers’ Compensation Act (“the Act”).

The Act provides for reasonable compensation for employee wage loss arising as a result of a work-related disability. Reasonable and necessary medical expenses that are causally related to the work-related condition(s) are payable.

Section 301 (c)(1) of the Act defines a work-related injury to include those injuries “arising in the course of employment and related thereto.” This definition includes aggravation, reactivation, and acceleration of pre-existing conditions. The employer’s actions may extend or expand the scope of what is considered to be an “injury” arising in one’s employment.

Generally, an employee sustains a disabling injury while in the course of performing employment tasks, or while furthering the business affairs of the employer in some manner or sustains an injury as a result of a condition of the business premises. In these circumstances, the employer must compensate the employee for work-related wage loss and medical expenses.  Slaugenhaupt v U S Steel Corp 376 A.2d 271 Pa. Cmwlth. 1977).

Review and assessment of the scope and extent of COVID-19 related employer and workers’ compensation insurer exposure and liability continues. The Food and Drug Administration (FDA) issued Emergency Use Authorization (EUA) for the Pfizer-BioNTech and Moderna COVID-19 vaccines on December 11, 2020, and December 18, 2020, respectively. Additional vaccine manufacturer approvals are anticipated.

[NOTE: The Centers for Disease Control and Prevention (CDC) website provides a significant amount of information regarding vaccine allocation, phased distribution, and reporting of side-effects.]

The Pfizer vaccine is reported to be 95% effective at preventing symptomatic cases of COVID-19 after two doses. The Moderna vaccine is said to be 94.5% effective. The high efficacy of these vaccines may prompt employers to direct employees to receive a vaccination. Employers may also “encourage” employee vaccination via a number of means: publication or distribution of vaccination information, sponsorship of on-premise vaccination sites, allowance of employee compensated time, etc.

[NOTE: Vaccination Phase 1a. includes health care personnel and long-term care facility residents. Phase 1b. includes frontline essential workers & persons aged 75 years and older. Phase 1c. includes persons aged 65-74 years and persons aged 16-64 years with high-risk conditions and essential workers not recommended in Phase 1b. Phase 2 all people aged 16 years and older, not in phase 1, who are recommended for vaccination. Phase 3 all other groups.]

Employer liability for “mandated or directed” vaccination programs seems straightforward. Vaccination as a condition of one’s employment would be considered “within the course and scope” of one’s employment. Post-vaccination shoulder symptoms were acknowledged as a compensable work-related condition, where a program manager received a flu vaccination from a nurse in Vanguard’s clinic in the employer’s building. The claimant’s appellate brief stated this vaccination was “part of employer’s health package.” See: Colagreco v. WCAB (Vanguard Group Inc.) 232 A.3d 971 (Pa. Cmwth. 2020). The appeal addressed the claimant's review of the injury description to include a diagnosis of CRPS and the adequacy of her notice that termination of her disability was at issue. For our discussion, Colagreco is noteworthy as the claimant's post-vaccination medical care included two (2) shoulder surgeries, multiple nerve blocks, office visits, diagnostic testing, medications, etc. Before the WCJ termination order, there were significant medical expenses.

Question: Will an employer’s mere recommendation, encouragement, or facilitation of COVID-19 vaccination of employees result in workers’ compensation liability?

Answer:    Yes and No. As the level of employer involvement in the vaccination of employees increases, so does the likelihood of a workers’ compensation judge finding employer liability for the sequela of a vaccination adverse reaction. The admonishment, that an employer may have responsibility for an employee's adverse reaction to the COVID-19 vaccination, is based upon analysis of past appellate decisions, all reciting well-established principles in workers’ compensation law.

As noted above, the issue of employer liability arising from its direction or requirement that an employee obtains the COVID-19 vaccination, with that employee suffering adverse physical consequences, appears rather straightforward. The argument for employer liability, in this circumstance, is found within the appellate cases reporting employer liability for injuries occurring within the course and scope of employment - including related activities and “special assignments and special circumstances” such as company-sponsored sports events, dinners, charity events, etc. “Special assignments and circumstances” which are not part of one’s regular work duties may result in employer liability. Past results in these cases are somewhat fact-specific.

For example: When an employer directs an employee to travel to another company office, the employee was found to be working on a “special assignment” for the employer and the injury sustained in a motor vehicle accident was compensable. Wells Fargo Co. v. WCAB (Pacheco) 764 A.2d 1147 (Pa. Cmwlth. 2000). However, in contrast, where the employee had the option to attend the employer family day picnic or to report to work - attendance at the family picnic was not mandatory - attendance at the picnic was determined to not further the employer’s business. Any injury sustained while traveling was not compensable. Storms v. WCAB (Big Boulder) 782 A.2d 20 (Pa. Cmlth. 2001).

It is important to explore the concept if an employee is not directed or compelled to act by the employer, what is the varying level of employer involvement in the employee obtaining the COVID-19 vaccination. Assessment of prior case law suggests a sliding scale of employer liability. The greater degree of employer involvement … the greater likelihood a workers’ compensation judge will find employer liability for benefit payment. There is workers’ compensation liability for an employee’s injury, sustained where an employer-run gym was provided on the employer premises. Employees were encouraged, but not required to use the facility. Even without compulsory participation, an employee injury was deemed to be a compensable injury. See: Stanner v. WCAB (Westinghouse Electric Co.) 604 A.2d 1167 (Pa. Cmwlth. 1992); Hemmler v. WCAB (Clarks Summit State Hosp.) 569 A.2d 395 (Pa. Cmwlth. 1990).

The level of employer involvement may be subtle. The employer may merely “encourage” employees to participate in an employer-supported charity event or an employer-supported sports team. (“My boss volunteered me,” or “Everyone plays on the team.”) In these circumstances, employer liability was found. See: when participating in an employer sanctioned employee association charity volleyball game; PSFS/Meritor Financial v. WCAB (Walker) 603 A.2d 692 (Pa. Cmwlth. 1992); See: when playing in a company-sponsored softball game; Scott v. WCAB (Packaging Corp. of America) 536 A.2d 492 (Pa. Cmwlth. 1988). However, contrast: Duffy v. WCAB (Arco Chemical Co.) 664 A.2d 699 (Pa. Cmwth. 1995).

In light of past unfavorable employer appellate decisions, it is prudent for one to accept that an employer’s support, encouragement, recommendation, facilitation, or compensation to an employee to obtain the COVID-19 vaccination and that employee suffers adverse physical consequences can lead to employer’s workers’ compensation benefit liability. The extent of liability may range from the limited payment of diagnostic testing and medical monitoring up to significant medical treatments and expenses, as incurred in Colagreco, supra. Even if the employee remains in good health and is asymptomatic, there will be employer liability for medical testing and monitoring.

In Jackson Township Vol. Fire Dept. v. WCAB (Wallet) 594 A.2d 826 (Pa. Cmwlth. 1991) the employer was responsible for the cost of testing for AIDS and Hepatitis B after an ambulance driver was exposed, in the course of rendering patient care. The court noted that the employee's exposure to a serious risk of contracting a disease was a compensable work-related “injury.”

In Brendley v. Pa. Department of Labor & Industry 926 A.2d 1276 (Pa. Cmwlth. 2007) the employer was liable for the cost of medical monitoring of an employee’s condition after work-place exposure to hazardous materials.

At this point, it is prudent to note that an employer who unilaterally denies payment of medical expenses based solely upon a causation argument (or lack of a work-relationship) assumes the risk of exposure to penalty assessment, contingent upon the WCJ ruling of the causal relationship of the medical costs. See: CVA Inc. v. WCAB (Riley(29 A.3d 1224 (Pa. Cmwlth. 2011.) It is anticipated a claimant request for the imposition of counsel fees paid by the employer, for an unreasonable contest of this issue, will follow. An employer must assess the cost-benefit of payment/denial of minimal medical expense.

An additional factor to consider in the employer liability assessment is the extent and degree of liability. As noted in Colagreco, significant medical treatment expense was reported.

A work-related injury may include the aggravation, reactivation, and acceleration of a pre-existing condition. See: 301 (c)(1). The employer will be responsible for the work-related aggravation of a pre-existing medical condition, such as asthma. See: Pawlosky v. WCAB (Latrobe Brewing) 525 A.2d 1204 (Pa. 1987).

However, employer liability does have some limitations, where the aggravation or worsening of the pre-existing condition returns to “baseline,” then workers’ compensation benefits are no longer payable. See: Bethlehem Steel v. WCAB (Baxter) 708 A.2d 801 (Pa. 1998).

This point of liability for work-related “aggravation” is noteworthy, as the CDC has reported side-effects of the Pfizer and Moderna vaccines, including a severe allergic reaction (in four individuals) including anaphylaxis, which was promptly relieved by an epinephrine injection.

The CDC describes that the Pfizer and Moderna vaccines can cause some temporary symptoms similar to flu vaccinations. More commonly reported reactions include non-severe allergic reactions of hives, swelling, skin rash, wheezes, sore arm (injection site), flu-like symptoms including fever, extreme tiredness, body pain, chills, headache, puffy eyes, scratchy throat, and light-headedness.

Persons with allergic reactions to polyethylene glycol (PEG) and polysorbate are directed to not get an mRNA COVID-19 vaccine. The CDC directs persons with a past history of allergic reaction to other vaccines or to the vaccine ingredients to seek their physician’s advice.

Bell’s palsy (temporary weakness or paralysis of the face) was noted in four people who received Pfizer’s vaccine and three people who received Moderna’s. However, “current available information is insufficient to determine a causal relationship.” CDC website 01/06/2021.

[NOTE; The CDC has a COVID-19 Vaccine Side Effect Tracker on its website.]

Conclusions:

Based upon currently available information, it appears the vast majority of adverse effects to the COVID-19 vaccination will be temporary (one to two days) and of minimal severity. However, the following recommendations are advised:

  • An Employer Report of Injury must be filed with the Bureau if an employee is absent for one work shift or more. See Section 438; 77 P.S. 994. The employer must keep records of each injury including its description, the manner of occurrence, and the time during which the employee was unable to work. See: Section 439; 77 P.S. 995.
  • No wage loss compensation is paid during the first seven days after disability begins, but if disability lasts 14 days or more, the employee is then paid for the first seven days. See: Section 306 (e), 77 P.S. 514.
  • Employer liability for payment of reasonable and necessary work-related medical expenses commence on the date of injury.
  • Payment of work-related medical expenses may be documented via:

               -  Notice of Temporary Compensation Payable, Medical Only LIBC-501; or

                -  Notice of Compensation Payable, Medical Only, LIBC-495.

As noted above, there are limited reports of severe vaccination adverse reactions. In the more severe case, one must require the workers’ compensation claimant to establish all of the elements of a compensable injury claim, in accord with Inglis House v WCAB (Reedy) 634 A.2d 592 (Pa. 1993). A significant determinator of employer liability will be the level of employer involvement in the employee’s receipt of a COVID-19 vaccination.

The assessment of employer liability for workers’ compensation benefit payment for employee adverse reaction to COVID-19 vaccination is a fluid, changing state of affairs.