Employer Liability and the COVID-19 Vaccine

With the COVID vaccine in full swing, I was asked by a client to address whether an employer who requires its employees to be vaccinated as a condition of employment would face potential exposure under the Illinois Workers’ Compensation Act for any side effects caused by the vaccine. The answer is a bit complex as Illinois law would find liability; however, under the current federal law and recent declarations, federal immunity could shield employers from liability.

COMPENSABILITY ASSESSMENT: The decision in Hyneman v. State, 13 Ill. Ct. Cl. 150 (1944), notes that the vaccination, itself, was not an “accident” under the Act, but the ensuing infection was a compensable injury. The burden would be on the employee to prove causal connection between the vaccine and the infection.

However, given the unprecedented impact of the pandemic, the federal government has issued several amendatory announcements to the attached “PREP Act” that would provide employers immunity against injuries caused by the vaccine.

PREP ACT-FEDERAL IMMUNITY: Employers administering a COVID-19 vaccination program will likely be afforded another layer of immunity through the Public Readiness and Emergency Preparedness Act (PREP Act). Covered Persons, as defined therein, can include companies that administer vaccines or provide facilities for vaccine administration. The PREP Act grants liability immunity to Covered Persons against any claim of loss “caused by, arising out of, relating to, or resulting from” the distribution, administration, or use of COVID-19 vaccines approved by FDA under an EUA or BLA. The only exception to immunity is for claims involving “willful misconduct” as defined in the PREP Act. Consequently, an employer providing a COVID-19 vaccine onsite may enjoy the liability immunity protections of the PREP Act, meaning that the employer would be immune from claims of injury or loss arising from the administration of a COVID-19 vaccine, except in instances of “willful misconduct.”

The following was found on the Health and Human Services web page.

“The Secretary issues this amendment pursuant to section 319F-3 of the Public Health Service Act to amend his March 10, 2020 Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19.”

42 U.S.C. 247D-6D(B)(6)

I have considered the desirability of encouraging the design, development, clinical testing, or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, and use of the Covered Countermeasures.

The immunity will likely extend to employers providing the vaccine under a controlled program and should be considered “administration” or “dispensing” under federal law and subject to immunity. Accordingly, if the employer pays for and provides the service at the various employer locations, the immunity should apply.