With a little more than half of the adult U.S. population being fully vaccinated against COVID-19, businesses are bringing more employees back into the workplace.
The U.S. Equal Employment Opportunity Commission (EEOC) on May 28 updated its guidance related to COVID-19, vaccines and the workplace. As part of the guidance, the EEOC said federal Equal Employment Opportunity laws don’t prevent employers from requiring workers physically entering the workplace to get vaccinated against COVID-19, as long as employers comply with other laws such as the American with Disabilities Act (ADA).
VERIFY viewer Bernice asked: If an employer requires me to get vaccinated for COVID-19 and it causes adverse effects, can a workers’ compensation claim be filed?
- Joshua Higgins, business unit leader and partner at Kelley Kronenberg.
- Sarah Mugmon, attorney with Lipp Law.
- National Institute for Occupational Safety and Health
Yes, a worker who had adverse effects to a COVID-19 vaccine mandated by their employer can file a workers’ compensation claim. However, there are several steps the employee must take to have their claim approved.
WHAT WE FOUND
The National Institute for Occupational Safety and Health says workers’ compensation was “established to provide partial medical care and income protection to employees who are injured or become ill from their job.”
Joshua Higgins, who focuses his practice on workers’ compensation defense, and Sarah Mugmon, who has negotiated claims before the EEOC, said an employee could file a workers’ compensation claim for adverse effects to a COVID-19 vaccine if the employer required vaccination.
“If you get the COVID vaccine as mandated by your employer, and there are adverse effects, then you may be eligible for workers’ compensation,” Mugmon said.
One key to getting a claim approved is that the vaccine is mandated by the employer. Higgins and Mugmon said there are other situations, such as if the vaccine was encouraged by the employer and the employer partnered with a third-party vendor to offer the vaccine, in which getting a workers’ compensation claim approved would be less likely.
Another key to filing a successful workers’ compensation claim is documentation. Higgins said it’s best for workers to get a medical professional to document the adverse effects to the vaccine as soon as possible.
“You still have to prove the causal connection,” Higgins said. “So, what's really important is if you start to experience adverse reactions to the vaccine, go see a medical professional, because a lot of these adverse reactions are temporary. They go away within a short period of time ... So, if you're not getting a medical opinion, and there's nothing to substantiate that you had these conditions or these adverse reactions, then you have nothing to back up your claim.”
Mugmon said workers can see a medical professional after the side effects have subsided, but it may be more difficult to prove the symptoms were caused by the vaccine.
“It's not to say that it's impossible to go back and share that with your medical provider,” Mugmon said. “But it is better and going to be a stronger argument in your favor when you can have contemporaneous documentation, and there is someone there to kind of assess what's going on and be able to report that accurately as it's occurring.”
She also said it’s important for the worker to have some form of documentation showing the vaccine was mandated by their employer.
Higgins said people should also understand what they receive if they successfully file a workers’ compensation claim.
“So, a lot of people have misconceptions in terms of what a workers’ compensation claim is. It's not like a civil lawsuit where you get into a car accident, for instance, and there's pain and suffering, whether or not it's a negligence action,” Higgins explained. “Workers’ compensation, the primary goal is to get a worker back to work. So, what you're really getting in terms of a benefit in a workers’ compensation claim is medical benefits and indemnity benefits.”
He said medical benefits focus on helping the worker with the adverse effects they had, and indemnity benefits are a way to compensate the worker for lost time from work. Most claims related to people who missed work due to the side effects from a COVID-19 vaccine would generally be small because people typically only have symptoms for a few days, Higgins said. People with longstanding adverse reactions would likely get more.