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OSHA’s COVID-19 Vaccination Mandate: Workers’ Compensation Considerations

All, COVID-19, Property & Casualty

Employers working to comply with OSHA’s COVID-19 Vaccination Mandate should be aware of the workers’ compensation considerations. M3’s risk management team has highlighted key information for Wisconsin, Minnesota, and Illinois below.

Wisconsin

INJURY FROM THE VACCINE ITSELF:

A key factor for compensability is whether the side effects that occurred from a COVID-19 vaccination rise to the level of an injury or illness. To date, the reported COVID-19 vaccine side effects mirror those that have been seen with the flu vaccine. The most common side effects of the COVID-19 vaccine include swelling or pain at the injection site, tiredness, muscle pain, chills, joint pain, and fever. These symptoms are usually mild in nature and resolve on their own in a few days. Severe allergic reactions to the COVID-19 vaccination requiring treatment have been reported as rare according to the Centers for Disease Control and Prevention (CDC).

What if an employer mandates the COVID-19 vaccination for its employees and an employee develops an allergic reaction that requires medical care and time off from work? Is the employee entitled to workers’ compensation benefits in Wisconsin?

If an employer mandates vaccination or strongly encourages employees to obtain the vaccine for work-related reasons and an employee develops a reaction that rises to the level of an injury or disease, the medical treatment and any lost time from work would likely be compensable.

If the COVID-19 vaccine is entirely voluntary and uncompensated, probably not. Wisconsin worker’s compensation law excludes injuries resulting from uncompensated and voluntary participation in workplace wellness programs from benefits.

Under Wis. Stat. 102.03(1)(c)(3), an employee is not performing services growing out of and incidental to employment while engaging in a program, event or activity designed to improve the physical well-being of the employee, whether or not the program, event or activity is located on the employer premises, if participation in the program, event or activity is voluntary and the employee receives no compensation for participation.

What if an employer does not mandate COVID-19 vaccination for employees, but offers it to employees who choose to get it, with an on-site COVID-19 vaccine clinic? Is there workers’ compensation liability if the employee develops a reaction?

An injury resulting from a voluntary on-site vaccination clinic, where the employer “strongly encourages” participation will likely be compensable, especially if the employee is expected to get the vaccine at the on-site vaccine clinic.

In order to avoid liability, the vaccination would have to be both voluntary and without any compensation. An employer must be clear that participation in an on-site COVID-19 vaccination program is voluntary and not required for an employee’s ongoing employment and that employees are not compensated or provided an incentive for time spent during the vaccination process.

INJURY INCIDENTAL TO GETTING THE VACCINE:

Would an employee be considered in the course and scope of employment when presenting for a mandated vaccine or testing off work premises (example: motor vehicle accident going to vaccination/testing site or slip & fall at the site)?

If the conditions of Wis. Stat. §102.03(1)(c)3 are met, any trip to get a vaccine will likely be considered to be in the scope and course of employment. Given the breadth of the traveling employment statute, any injury which an employee receives while traveling on a reasonably direct route to and from a vaccination or testing site will more likely than not be deemed to be in the scope and course.

What if an employer mandates the COVID-19 vaccine for employees and three years later, the employee develops cancer as a result of the COVID-19 vaccine?

Wisconsin has a six (6) year statute of limitations for specific work injuries. Consequential injuries resulting from a single incident are compensable if the claim is brought at any point during the six-year statute of limitations. If cancer, infertility, or another consequential injury arises during this period, the injuries could be compensable, provided there is evidence of a clear causal connection.

Illinois

What if an employer mandates the COVID-19 vaccination for its employees and an employee develops an allergic reaction that requires medical care and time off from work? Is the employee entitled to workers’ compensation benefits in Illinois?

If employees are vaccinated at the direction of employers and have adverse reactions as a result of the vaccination, the medical treatment and any lost time from work associated with the adverse reaction to the vaccination would likely be compensable.

Minnesota

INJURY FROM THE VACCINE ITSELF:

What if an employer mandates the COVID-19 vaccination for its employees and an employee develops an allergic reaction that requires medical care and time off from work? Is the employee entitled to workers’ compensation benefits in Minnesota?

If an employer mandates vaccination or strongly encourages employees to obtain the vaccine for work-related reasons and an employee develops a reaction that rises to the level of an injury or disease, the medical treatment and any lost time from work would likely be compensable.

What if an employer does not mandate COVID-19 vaccination for employees, but offers it to employees who choose to get it, with an on-site COVID-19 vaccine clinic? Is there workers’ compensation liability if the employee develops a reaction?

In Minnesota, the general rule is that injuries sustained while participating in voluntary recreational programs, including health promotion programs, athletic events, parties, and picnics sponsored by employers do not arise out of and in the course of employment even when the employer pays some or all of the costs of the program. Minn. Stat. §176.021, subd. 9.

Making the vaccine available does not necessarily mean that the vaccine is mandatory. Minn. Stat. § 176.021, subd. 9 specifically states that an injury incurred while participating in voluntary programs are not compensable even if the employer pays for some or all of the cost of the program. This would include a situation where the employer is paying for an on-site COVID-19 vaccine clinic.

As long as the vaccine remains voluntary and the employee will not risk forfeiting pay or benefits if they decline to get the vaccine, the adverse reaction to the vaccine would likely not be compensable in Minnesota. This is similar to how many employers offer flu shots and/or make flu shots available through an on-site clinic but leave the choice to get the flu shot up to the individual employee.

What if an employer mandates the COVID-19 vaccine for employees and three years later, the employee develops cancer as a result of the COVID-19 vaccine?

The general rule is that when an employee’s injury arises out of and in the course of their employment, the employee is entitled to workers’ compensation benefits. The phrase “arising out of” means that there must be some causal connection between the injury and the employment.

When an extended period of time has passed between the inciting work event and the injury, this raises a question of whether there is a causal connection between the work event and the employee’s injury.

If the employee has a medical opinion establishing that the COVID-19 vaccine was a substantial contributing factor to the development of the condition and the employer mandated the COVID-19 vaccine, the employee could have a claim for benefits in Minnesota.

Key Takeaways:

Each state has its own workers’ compensation considerations related to the COVID-19 vaccination mandate. Consult with your M3 account executive for more information about your organization’s particular situation.

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