The federal Food & Drug Administration (FDA) has issued emergency use authorizations for three COVID-19 vaccines. While this is not a full approval of these pharmaceuticals, the vaccines are being distributed to most of the adult population amid the pandemic. At your charter school, you may be asking whether COVID-19 immunization should be mandatory before employees return to campus. But what if an employee has a severe reaction to the vaccine, or if your unvaccinated employee infects others? You are wise to consider your potential liability and to ask questions about how to implement a vaccination policy.
When employers have required employee vaccinations, previous California case law has held that an employee who is injured by a vaccination may receive workers’ compensation benefits. If the employer arranges for vaccinations for their employees on a voluntary basis, the issue of an adverse vaccine reaction being compensable will depend on the facts and circumstances of each case.
"Vaccine injury compensation depends on specific facts and circumstances."
Two criteria would apply in determining entitlement to workers’ compensation benefits as a result of a COVID-19 vaccination injury. Was the vaccination “at the direction of the employer?” If the vaccination requirement was a condition of employment, it would probably make an adverse reaction to the vaccine compensable. Is the vaccination “for the employer’s benefit?” When employee vaccination enhances the ability for the employee to be physically present without accommodation, and the employee’s physical presence is essential to the conduct of business, then it is likely to be viewed as beneficial to the employer.
In the absence of current regulatory guidance or legislative relief, a COVID-19 vaccine employer mandate is inadvisable. We recommend you seek legal advice if you do decide to make vaccination mandatory for your workplace. In addition, please refer to EEOC guidelines released 12/10/2020 which includes employer accommodation considerations. If an employee asserts that their adverse reaction to the vaccine is work related, provide a DWC-1 Claim Form within one working day.
Meanwhile, continued COVID-19 risk mitigation and response to possible workplace exposures and infections is vital as you reopen your charter school to staff and students. As for the employer liability concerns that not requiring vaccines could expose others to infection, you should ensure you comply with the measures of AB 685 and Cal-OSHA’s emergency temporary standard.
