Vaccine mandates are the subject of much discussion and controversy in nearly every industry, both in America and abroad. As protests rage across the country, many workers question the ability of employers to mandate vaccinations. We covered that issue in a separate article here, noting that vaccine mandates are lawful so long as employers provide medical and religious exemptions to qualifying employees. Now, the latest emerging question is whether workers have any legal recourse in the event they suffer a serious injury or side-effect from the currently available Pfizer, Moderna, or Johnson & Johnson vaccines. The answer is yes, but the details are somewhat complex and will likely surprise some in the American workforce.
COVID-19 and the related vaccines are governed by the Public Readiness and Emergency Preparedness Act (“PREP Act”), which provides liability immunity and a compensation program. 42 U.S.C. §§ 247d-6d, -6e. The PREP Act authorizes the Secretary of Health and Human Services (“HHS”) to issue declarations as needed to provide liability immunity to certain individuals and entities against legal claims relating to the manufacture, distribution, administration, or use of certain medical countermeasures as defined in the Act.
On March 17, 2020, HHS issued the Declaration Under the PREP Act for Medical Countermeasures Against COVID-19 (the “Declaration”). Effective February 4, 2020, this Declaration defined the COVID-19 vaccines as covered countermeasures and granted immunity from liability to organizations in the vaccine supply and distribution chains, such as common carriers, warehouses, retail pharmacies, licensed health professionals, and state and local governments.
Under the Declaration, certain “program planners” qualify for liability immunity if they supervise or administer a program for supplying or using a vaccine. The Declaration expressly states that a private-sector employer “can be a program planner when it carries out the described activities.” This indicates that an employer would qualify for liability immunity if it sponsored or administered an on-site vaccination program for employees or others. It is not clear whether the Declaration’s liability immunity would apply in the more common scenario where an employer mandates or incentivizes vaccination but plays no role in administering or facilitating the vaccination.
In addition, the Declaration establishes the Countermeasures Injury Compensation Program (“CICP”) to provide benefits to persons who sustain serious physical injuries or die as a direct result of a COVID vaccine. The CICP is administered by the Health Resources and Services Administration (“HRSA”), a division of HHS. Any person seeking relief under the CICP must file a claim within one year from the date the vaccine was administered or used and may request an award of medical expenses, lost employment income, estate benefits, or survivor death benefits. The CICP claims process involves a review of the claim by CICP medical staff to determine whether the injury or death was the direct result of the administration or use of the vaccine. An adverse decision by the CICP may be reconsidered by the Associate Administrator of the Healthcare Systems Bureau of HRSA. There are no further appeal or reconsideration rights to any federal or state court. Because the federal government is considered the payer of last resort, awards from the CICP only cover what remains unpaid or unpayable by other third parties (e.g., health insurance, short-term disability, life insurance). The PREP Act does not provide for payment or reimbursement of any attorney’s fees or costs incurred in pursuing a CICP claim
In Virginia, an employer-mandated vaccination may arguably arise in the scope and course of employment, meaning that any injury arising from the vaccination may be covered by the employer’s workers’ compensation insurance policy. Workers’ compensation allows employers to avoid civil lawsuits when employees suffer a compensable workplace injury.
*This article was authored with the assistance of Summer Associate, Albert Gutiérrez.