Positive Employer Work Order Versus Positive Employee COVID-19 Test

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It’s the news we have been waiting to hear for months. Operation Warp Speed has successfully accelerated the development and production of COVID-19 vaccines, and while the actual distribution of the vaccine has caused chaos, the fact that a “shot in the arm” may be just around the corner is enough to calm the anxiety of many.  
 

But news of the COVID vaccine distribution has employers faced with several legal questions. Not only are employers wondering whether vaccines can be mandated, but also, what recourse do employers have when an employee refuses to get a vaccine and contracts COVID while at work?  Are these employees entitled to workers’ compensation benefits?

As was discussed in previous blog posts, an employer can require employees to get a vaccine, subject to religious exemptions (Title VII) and disability exemptions (ADA). In addressing the issue of flu shots, the EEOC has said:

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Few employers outside the health care industry require their employees to be vaccinated as part of their employment. In fact, the Centers for Disease Control (CDC) recently issued guidance recommending, as opposed to enforcing, vaccination. But what if the vaccine is required as part of an employer’s positive work order?  

Although the Pennsylvania Workers’ Compensation Act does not allow an employer and employee to agree to terms of a claim waiver associated with an injury that occurs in the workplace, an employer does have a basis for denying a workers’ compensation claim if the employer can prove that the employee’s injury occurred as a result of a violation of a positive work order. For instance, if an employer directs its employees to do something or not do something as part of a positive order, and the employee is injured while performing a task in violation of that positive work order, the employee’s workers’ compensation claim may be denied.

The violation of a positive work rule is an affirmative defense in which the employer must establish three criteria:

(1) the injury was, in fact, caused by the violation of the order or rule,

(2) the employee actually knew of the order or rule, and

(3) the order of rule implicated an activity not connected with the employee’s work duties.

Miller v. WCAB (Millard Refrigerated Servs.) 47 A.3d 206 (Pa.Cmwlth 2012).

Although it is difficult to predict precisely how the courts and varying states will view vaccines in the COVID-19 workplace, if the vaccine is required by the employer and an employee refuses the vaccine but is permitted to continue working, and later contracts COVID-19 and makes the case for a workplace exposure, the employer may have a defense against workers compensation liability. Of course, the employer that requires the vaccine (taking into account ADA and religious exemptions) must make sure the vaccine requirement is communicated clearly to the workforce.

Nevertheless, choosing to mandate or encourage vaccines could have both favorable and unfavorable workers’ compensation implications for employers. A vaccine requirement through a positive work order that complies with public health guidelines, at the time of exposure could further provide a defense against any presumption of compensability for workplace acquired COVID-19. And yet, requiring vaccinations could result in a surge of workers’ compensation claims arising from adverse reactions to the vaccine itself.  

As we continue to strive for herd immunity and get back to some semblance of normalcy, it remains to be seen how courts will handle a vaccine requirement, but employers can protect themselves by coming up with a plan, and possibly a positive work order for vaccines, to protect the interests of their company as well as their workers.

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