The upcoming rollout of COVID-19 vaccines will pose considerations and possible risks for employers, particularly pertaining to workers’ compensation
While a reaction to the vaccine could be a compensable accident under Illinois workers’ compensation law, the risk of significant medical and indemnity exposure is likely low
Employers can add another layer of defense against the state’s rebuttable presumption for certain COVID-19 workers’ compensation claims by enacting vaccine policies consistent with CDC and IDPH recommendations
With FDA approval for the first COVID-19 vaccines anticipated in the coming weeks, this is an opportune time for employers to consider the impact of vaccines on their operations and their COVID-19 policies and protocols. For employers who choose to mandate or strongly encourage vaccination, one consideration is the impact on their workers’ compensation claims should an employee have an adverse reaction to the vaccine.
In Illinois, an injury is compensable where it arises out of and in the course of employment. An injury can be found to “arise out of” the employment when it is the result of an activity the employer instructed the employee to perform. An employee may have a stronger claim for compensability where vaccination is mandatory or in fields where the risk of contracting the virus is higher—such as healthcare settings, janitorial services, manufacturing, grocery stores, or other essential operations.
While a reaction to the vaccine could be a compensable accident under Illinois workers’ compensation law, the risk of significant medical and indemnity exposure is likely low. The publically available data shows the majority of adverse reactions included fever, muscle aches, headaches, and fatigue—which are typically unremarkable indicators that the vaccine has triggered an immune response and is working as intended. Though the studies show the likelihood of an adverse reaction is a bit higher for the COVID-19 vaccines than for other common inoculations, such as the annual flu shot, participants reported these reactions only lasted a day or two. Therefore, apart from a few outliers, we do not anticipate a steep rise in claims for adverse reactions to COVID-19 vaccines and for those that do arise the exposure is likely to be minimal.
An employer’s COVID-19 vaccine policy can also impact claims for COVID-19 exposure. Under an amendment passed by the Illinois legislature earlier this year, there is a rebuttable presumption an employee contracted COVID-19 through work in certain, defined circumstances. This presumption applies to COVID-19 exposures between March and December 2020, though it would not be surprising if the legislature chose to extend the presumption to cases arising through 2021. One of the ways employers can rebut this presumption is by demonstrating compliance with Centers for Disease Control and Prevention (CDC) and Illinois Department of Public Health (IDPH) guidelines in place at the time of the exposure. If employers enact vaccine policies consistent with CDC and IDPH recommendations/guidelines, it can add another layer of defense to the rebuttable presumption.
We recognize there is no one-size-fits-all COVID-19 vaccine policy and development of such policies necessitates consideration of a multitude of factors. We strongly encourage employers to consult with their human resources group, insurance carriers, and legal teams in developing and administering a policy. Our Illinois Workers’ Compensation team is ready to assist employers and insurance carriers in continuing to navigate the pandemic and develop innovative, aggressive strategies to investigate and defend ever-evolving COVID-19 claims. We can also connect you with our industry-leading attorneys in the fields of Employment & Labor, General Liability, and OSHA & Worksite Safety to assist with developing a holistic strategy moving into the post-COVID world.
For more information or immediate guidance, contact:
- Natasa Timotijevic
- Emily E. Borg
- Jennifer B. Santoro
- Or another member of our Illinois Workers’ Compensation team