Is An Adverse Reaction To An Employer-Mandated COVID-19 Vaccine Compensable Under New England States' Workers’ Compensation Acts?

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With the availability of COVID-19 vaccinations and anticipated push to vaccinate the general public in the coming months, it is expected that many employers will mandate that their workers obtain a vaccination either prior to returning to the workplace or as a requirement to remain employed. While the New England states have yet to address the compensability of claims relating to an adverse reaction directly, likely because the issue is too new to have been litigated, the overall theme throughout the region is that injuries or acts performed for the mutual benefit of the employee and employer are compensable under workers’ compensation. Below we highlight the state of the law, throughout the region, concerning vaccination and workers' compensation compensability.

CONNECTICUT

In Connecticut, should an employee have an adverse reaction to an employer-mandated COVID-19 vaccination, the injury will be compensable. In Smith v. Seamless Rubber Co., 111 Conn. 365, 368-69 (1930), the court found:

Where an employer merely permits an employee to perform a particular act, without direction or compulsion of any kind, the purpose and nature of the act becomes of great, often controlling significance in determining whether an injury suffered while performing it is compensable. If the act is one for the benefit of the employer or the mutual benefit of both an injury arising out of it will usually be compensable; on the other hand, if the act being performed is for the exclusive benefit of the employee so that it is a personal privilege or is one which the employer permits the employee to undertake for the benefit of some other person or some cause apart from his own interests, an injury arising out of it will not be compensable (emphasis added).

More recently, in Lemlin v. New Britain General Hospital, the Workers’ Compensation Commission found that an employee who suffered an adverse reaction to a Hepatitis B vaccination that was required by OSHA regulation, and encouraged by the employer, was compensable. 3978 CRB-06-99-02 (Feb. 1, 2000).It noted that the employer derived a benefit from having its employees inoculated against the communicable disease. Id. The Connecticut Workers’ Compensation Act, “is to be liberally construed to provide coverage for employees who are injured on the job.” Muldoon v. Homestead Insulation Co., 231 Conn. 469, 483 (1994) (citation omitted). The Workers’ Compensation Act is remedial and should be construed liberally to achieve its humanitarian purpose. Id. The Supreme Court of Connecticut has repeatedly stated that the Act “is to be construed with sufficient liberality to carry into effect the beneficent purpose contemplated in that legislation, and not to defeat that purpose by narrow and technical definition.” Id.

RHODE ISLAND

In Rhode Island, for an employee’s injury to be compensable, the employee must show that the employer derived some benefit from the employee’s particular activity and that the employee was doing something incidental to his or her employment. See DiLibero v. Middlesex Construction Co., 9 A.2d 848 (R.I. 1938). Workers’ compensation benefits are to be paid to an employee who “receives a personal injury arising out of and in the course of his or her employment, connected and referable to the employment.” R.I.G.L. §28-33-1. The claimant carries the burden of demonstrating that this “nexus or causal connection exists between the injury sustained and the employment.” Toolin v. Aquidneck Island Med. Res., 668A.2d 639 (R.I. 1995).

To determine if there is a nexus between the injury and employment, the court determines whether the injury occurred within the period of the employee’s employment; whether the injury occurred at the place where the employee might reasonably have been expected to be; or whether the employee was reasonably fulfilling the duties of his or her job at the time of the injury or performing some task incidental to the employment. See id. at 614. “The commission determines whether competent evidence exists to support a finding that benefits should be awarded. The employee bears the burden of proving allegations contained in the petition for compensation by a fair preponderance of credible evidence. Blecha v. Wells Fargo Guard-Company Serv., 610 A.2d 98, 102(R.I. 1992) (citing Mastronardi v. Zayre Corp., 120 R.I. 859, 862-63(1978).

For employers who mandate that an employee receive a COVID vaccination before returning to work, they will be exposed to liability as the receipt of the vaccination is a condition of the employment and benefits the employer. See DiLibero, 9A.2d 848.

VERMONT

A Vermont employee that suffers an adverse reaction to an employer-mandated COVID-19 vaccine will likely been titled to workers' compensation benefits. In Vermont, an employee must prove that he or she suffered a personal injury by accident arising out of and in the course of their employment.  21 V.S.A. § 618(a)(1).  The courts have held that there are no hard and fast rules to determine when an injury arises out of employment and that the outcome of each case is determined after taking all the facts and circumstances into account. Shaw v. Dutton Berry Farm, 160 Vt. 594(1993).  Furthermore, the nature, conditions, obligations, and incidents of the employment all have bearing on the proper determination of whether an injury arose out of and in the course of employment for a given case. Kenney v. Rockingham Sch. Dist.,123 Vt. 344 (1963).  

In Rothfarb v. Camp Awanee, 116 Vt. 172 (1950), the court stated that an injury received by an employee while voluntarily engaged in an activity solely for the pleasure, convenience, or benefit of himself is not ordinarily compensable as arising out of the employment.  However, an injury suffered by an employee while performing an act for the mutual benefit of himself and his employer is usually compensable as arising out of and in the course of the employment even though the advantage to the employer is slight. Id.  In Kenney, 123 Vt. 344, the court indicated that an act outside of an employee’s regular duties, which is undertaken in good faith to advance the employer’s interest, whether or not the employee’s own assigned work is thereby furthered, is within the course of employment. Id.

Vermont courts have also recognized the “positional-risk doctrine” when evaluating whether an injury arises out of and in the course of employment. This doctrine provides that an employee’s injury arises out of their employment if it would not have occurred, but for the fact that the conditions and obligations of employment placed the employee in the position where he or she was injured. Shaw, 160 Vt. 594.

NEW HAMPSHIRE

An employee in New Hampshire could argue that since an employer-mandated COVID-19 vaccine would be mutually beneficial to both parties, an adverse reaction to the vaccine is a compensable workers’ compensation injury.

Under New Hampshire law, a personal injury is defined as an accidental injury or death arising out of and in the course of employment. RSA 281-A:2, XI. The courts have held that to prove that an injury arose out of employment, the employee must demonstrate that the injury resulted from a risk created by the employment. Cook v. Wickson Trucking Co., 135N.H. 150 (1991).  Moreover, to prove that an injury arose in the course of employment, an employee must show that: (a)the injury occurred within boundaries of time and space created by the terms of employment; and (b) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden or an activity of mutual benefit to employer and employee. Id.

MAINE

At present, the law appears unsettled as to whether an adverse reaction to an employer-mandated COVID-19vaccine would be compensable under Title 39-A. Interestingly, a bill known as “An Act To Provide Employee Vaccination Compensation” had been proposed on March 5, 2019.  The following summary was provided:

This bill establishes the right of an employee to refuse any vaccine required or recommended by the employer without coercion, consequence, or retaliation by the employer and the employee's right to receive the vaccination at the employee's workplace and at the expense of the employer. It also requires the employer to compensate the employee for any medical expenses incurred by the employee due to an injury or adverse reaction to a vaccine and to provide any necessary paid time off to the employee, in addition to any sick time, vacation time, or other benefit offered by the employer. Compensation for the employee's injury or adverse reaction to a vaccine is provided in addition to any remedy available under the workers' compensation laws.

The bill did not become law.  Its Final Deposition was noted as Leave to Withdraw on April 2, 2019.

Although the state has a website dedicated to information about the COVID-19 vaccine, it is silent as to adverse reactions and workers’ compensation. The link may be found here

MASSACHUSETTS

The Supreme Judicial Court has not directly addressed the compensability of an adverse reaction to an employer-mandated COVID-19 vaccine pursuant to M.G.L. c. 152. However, in a footnote to a 2008 case discussing vaccination, it wrote as follows:

The issue in that case [In re Hicks's Case, 62 Mass. App. Ct. 755 (2005)] was whether receipt of the vaccine was an incident of her employment. Id. at 763.The Appeals Court concluded that it was because the employer encouraged its workers to receive the vaccine, offered it on the premises, and received a benefit from the vaccination of its workers. Id. at 766-767. The question of whether the employer "required" the worker to receive the vaccine was not addressed. Id. at 762-768. Haslam's Case, 451Mass. 101 (2008)

Given the SJC’s finding that receipt of a vaccine was an incident of employment when the employer only encouraged its workers to receive it, employees will more likely than not be afforded workers’ compensation benefits, if they are required to take it and have an adverse reaction.

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