As we approach the end of the Covid-19 pandemic, many employers are now considering whether to mandate the vaccine for the virus or will have employees who are required to be vaccinated to perform certain job functions (i.e. travel) and asking questions about their potential workers’ compensation liability, should an employee have a reaction to the virus and require lost time.
Side effects of the Covid-19 vaccine per the CDC include pain, fatigue, fever, headaches, nausea, and swelling. Side effects have been known to last one to two weeks in moderate cases with very rare reports of more significant side effects, depending upon the shot.
In Minnesota, Minn. Stat. 176.011 subd. 16 states, “an injury or disease resulting from a vaccine in response to a declaration by the United States Department of Health and Human Services to ‘address an actual or potential health risk’ related to the employee’s employment is an injury or disease arising out of and in the course of employment.” (emphasis added). Wisconsin does not have such a statute but has generally held that a reaction may be compensable depending upon the facts.
Merely because a potential reaction is compensable does not mean it should be accepted. Each potential claim should be taken on a case by cases basis. Facts to consider include:
- What is the relationship between the employment and Covid-19? (Is this a presumption case or a non-presumption case?)
- Is Covid-19 considered a specific hazard unique to this employer?
- Was the vaccine mandatory to either continue as an employee or as a condition of employment for hiring?
- Did the employee receive the vaccine at work or on their own?
- Was the employee otherwise compensated for receiving the vaccine?
- Were there any personal reasons for which the employee would have received the vaccine?