Legislatures Consider Bills to Cover Vaccine Reactions in Employer-Mandated Jobs

Boise, ID (WorkersCompensation.com) – For the second year in a row, state legislatures are considering bills to cover adverse reactions to employer-mandated COVID-19 vaccines with workers’ compensation.  

In the Idaho, Rep. Niklas Kleinworth introduced HB 698 on March 5. That legislation would require that employees may claim compensation for any injuries the sustain from the COVID-19 vaccine if their employer requires them to take it.  

Kleinworth said the legislation was needed to protect employers.  

“While the U.S. Supreme Court used a Jan. 13 ruling to halt a proposed mandate on large employers, it let stand a federal vaccine mandate on employers that receive Medicare/Medicaid dollars,” he said. “This policy affects large hospitals, private clinics, and long-term care facilities. These health care providers cannot reject Medicare/Medicaid dollars without either denying care to their patients or by providing care without receiving compensation for the treatment they provide. In this case, the liability for any injuries caused by the COVID-19 vaccine should be placed on the federal government, not private businesses. This legislation offers no protection for the undue burden such a mandate would place on these employers.” 

It also protects employees, he said. His argument was that if a company, institution or government mandates vaccination or any other medical procedure, then they should be held liable for any harm or injury cause by that vaccination or medical procedure.  

Similar legislation is under consideration in New Hampshire. Along with HB 1210, which would grant conscientious objector status for those who oppose a vaccine mandate, the legislators will take up HB 1352 which will require workers’ compensation to cover any adverse effects from a mandated vaccine. 

Sponsored by Rep. Gregg Hough, HB 1352 would guarantee employees workers’ compensation if they suffer an “adverse reaction” within two weeks of getting the mandated vaccines. Nothing in the bill defines “adverse reaction” or determines how a connection between the reaction and the vaccination would be evaluated or confirmed.  

New Hampshire law currently allows workers who are injured after complying with a workplace requirement to apply for workers’ compensation. However, current law provides employers with a means to challenge the claim. 

Hough referred to the Center for Disease Control and Prevention’s (CDC’s) Vaccine Adverse Event Reporting System (VAERS) which indicates 55 people in that state died after getting a COVID-19 vaccine within the first seven months of the shots being available. The database, however, warns users that the information contained in it may be “incomplete, inaccurate, coincidental or unverifiable” and that the information is not presented as a proven connection between the vaccine and symptoms or death.  

In all, seven states are considering legislation to ensure workers’ compensation covers any reaction to the COVID-19 vaccine. In 2021, more than a dozen such measures were introduced across the country. None was successful.  

In four of the state filing legislation this year – Kentucky, New Hampshire, South Carolina and Wisconsin – coverage for adverse reactions within 14 days of vaccination would presumptuous. Legislation in Alabama would provide a private right of action against an employer for certain injuries or death resulting from employer-mandates COVID-19 vaccinations.  

But that legislation could pose problems for workers’ compensation, experts said. Adverse reactions are most likely already be covered by workers’ compensation, but current legislation would require the employee to prove it was a work-related injury, or an injury related to the vaccination, Steve Bennett, assistant vice president for workers’ compensation programs at The American Property Casualty Insurance Association told Business Insurance. Presumptions flip the burden to the employer to prove that the injury was not caused by the vaccine.  

The CDC lists pain, redness or swelling at the injection site, tiredness, headache, muscle pain, chills, fever and nausea as common side effects of the COVID vaccine However, it has said most side effects are temporary. Some serious side effects that could cause long-term health problems are extremely unlikely, experts said.  

“Most people never seek medical treatment for the symptoms,” said Mark Neuberger, an attorney with Foley & Lardner in Miami. “In addition, most states have a seven-day waiting period to collect wage-loss benefits.”  

In those cases, employees would have to be disabled by side effects for seven days before even being eligible for workers’ compensation wage benefits.  

Although rare, some more serious side effects of the second dose of the vaccine have been reported, including anaphylaxis, thrombosis with thrombocytopenia syndrome (TTS), and myocarditis/pericarditis, the CDC reported.  

As of Dec. 8, 2021, an estimated 17 million doses of the Johnson & Johnson vaccine had been administered in the U.S. The CDC and the U.S. Food and Drug Administration (FDA) identified 57 confirmed report of people who received the J&J vaccine and later developed TTS. The two agencies are also monitoring reports of Guillain-Barre syndrome in people who receive the J&J vaccine. The agencies said they have received fewer than 280 reports of Guillain-Barre syndrome after receiving the J&J vaccine.  

Additionally, the agencies said they have received 1,908 reports of myocarditis among people 30 and younger who have received a COVID-19 vaccine. Follow ups by the agencies, including reviews of medical records, were only able to confirm 1,106 reports of myocarditis or pericarditis.  

Joshua Higgins, with Kelley Kronenberg in Fort Lauderdale, Florida, told SHRM the concern over workers’ compensation liability for vaccine side effects is “overblown” because most side effects are mild and short-lived. 

One simple solution, he said, could negate any vaccine side effect legislation.  

If employers required a choice between vaccination or regular testing, rather than mandating vaccination, it would make it much harder to establish that a side effect would be compensable, he said.  

More common than side effects from the vaccine are injuries due to the shot being given wrong, said Daniel Pogoda, managing attorney at Dane Shulman Associates LLC in Boston. The injuries his firm is seeing have less to do with COVID-19 than they do with being injected with a vaccine in the wrong place and getting injuries to muscles and tendons. He said claims for those types of injuries are on the rise – but more so because of the volume of injections, not what is in the injections.  

“These injuries have been happening for decades,” he said. “The thing is not that these are new injuries, but that all these people have had these vaccines all at once, which has never happened… Something like this is making that very, very tiny percentage of people who get (a) vaccine injury seem like suddenly its everywhere, because of the numbers game you are playing.” 

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