These plans have raised questions over whether employers could be held liable if an employee develops an adverse reaction to the vaccination. Based on information released in conjunction with the first approved vaccinations, the chances of serious adverse reactions appear low. Even so, employers have a number of potential legal defenses to such claims.

In many states, workers’ compensation laws would preempt and limit any claim against the employer for alleged negligence in connection with a mandatory vaccination program. Coverage for voluntary vaccinations provided by employers is not as clear and depends on individual state law. Since the onset of the COVID-19 pandemic, a number of states have adopted laws that presume that COVID-19 was caught at work unless the employer demonstrates compliance with CDC and other medical guidelines. Vaccination policies that follow such guidelines would add an additional layer of protection from comp claims.

Even if vaccination injury claims are not considered covered under workers’ compensation laws, an employee would need to demonstrate negligence on the part of the employer. If FDA-approved vaccinations are administered by a third-party provider, it is difficult to see how a plaintiff would demonstrate such negligence. Perhaps the combination of emergency FDA approval along with a mandatory vaccination policy would provide some evidence of employer culpability, but the chances of a successful claim appear remote.

Employers should continue to monitor developments in the area, including potential federal and state laws that would provide immunity from vaccination injury claims. Liability for such vaccinations will be one of many legal and employee relations issues employers will need to consider before adopting a vaccination policy.