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As the Moderna and Pfizer COVID-19 vaccines begin to be administered to the population in the United States, many clients have asked whether an adverse reaction to the COVID-19 vaccine would be considered compensable if the employer were to offer a voluntary vaccination program at some time in the future. Many employers currently offer such programs during flu season. This is an important question but unfortunately there is precious little case law to guide us in New Jersey and in most states.
The last published case in New Jersey on the compensability of an adverse reaction to a vaccine goes all the way back to 1949 in Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949). The case involved an employer which sent out a notice strongly urging employees to get the smallpox vaccine. The notice read, “On April 23, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox. We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.”
Most of the company employees, including the petitioner, were vaccinated, but petitioner developed a reaction that caused her to lose time from work and to suffer partial permanent disability. The respondent’s personnel director testified at trial that this vaccination offer was made to promote morale, create a happier environment for employees and to reduce absenteeism. He stressed that the vaccination was entirely voluntary. The Judge of Compensation ruled that the adverse reaction was compensable. The Monmouth County Court reversed in favor of the employer, but the Appellate Division reversed again in favor of the employee. The Appellate Division focused on two factors: one, that the employer strongly urged employees to be vaccinated, and two, the mutual benefit doctrine. “We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment….”
The better argument is that adverse reactions to voluntary vaccination programs offered by employers are not covered under workers’ compensation and that Saintsing has been effectively overruled by subsequent statutory changes. First, the New Jersey Workers’ Compensation Act underwent a wholesale revision in 1979. There is no mention of the mutual benefit doctrine in the modern statute, and there are very few post-1979 cases that discuss the doctrine. The court in Saintsing based its decision largely on the mutual benefit doctrine along with a “strong urging” by the employer to participate in the program. Before 1979, there were literally scores of cases whose outcome depended on the mutual benefit doctrine. In fact, the Saintsing case has not been discussed by any published case in New Jersey since 1979.
More importantly, a new provision was added in 1979 to N.J.S.A. 34:15-7 which moved courts away from the nebulous mutual benefit doctrine. The law adopted in 1979 states that social activities are not compensable unless the employee can show the activity is a regular incident of employment and promotes a benefit beyond improvement of health and morale. The main purpose an employer would have in offering a vaccination program to employees is precisely improvement of employee health and morale. Of course there may be some mutual benefit to the employer but that is not the test in this statute. The injured employee would have to show that a critically important public health program is really focused on some other benefit to the employer beyond the obvious one: making sure its employees are healthy and not spreading a highly contagious and deadly virus to others. Until a reported decision comes down, no one can know for sure how the Appellate Division or New Jersey Supreme Court will rule on this issue.
What if the employer mandates that an employee must get the vaccine as a condition of continued employment, and then the employee develops an adverse reaction? The mandatory nature of the program would likely result in a ruling for petitioner. There are a number of New Jersey Supreme Court cases that have held that employees who are required to undertake certain actions that would otherwise be non-compensable and then are injured performing those actions are covered for purposes of workers’ compensation. The theory of these cases is that compelling an employee to perform an action renders the action compensable.
When a vaccine is not compensable in workers’ compensation, are there any benefits available to someone who develops an adverse reaction to the vaccine? The answer is yes. There are two important federal programs that assist such individuals. The first is the National Vaccine Injury Compensation Program. Petitions must be filed, with limited exceptions, within three years after the first symptom of the alleged vaccine injury, or within two years of the death and four years after the first symptom of the alleged injury the resulted in death.
The other program is called the Countermeasures Injury Compensation Program. Compensation under this program includes unreimbursed medical expenses that health insurance did not cover, lost employment income, and a survivor death benefit. A countermeasure is a vaccine, medication, device, or other item that is used to prevent, diagnose or treat a public health emergency or a security threat. COVID-19 is among the specific public health threats covered in the program.
It is important to realize that there is one and only one statutory provision in the New Jersey Workers’ Compensation Act that applies to injuries arising from the administration of a vaccine. This statute is part of the 2019 Thomas P. Canzanella Law, but it applies solely to first responders and public safety workers. The statute can be found at N.J.S.A. 34:15-31.6. It reads: “Any injury, illness or death of any public safety worker, resulting from the administration to the worker of a vaccine including, but not limited to, smallpox vaccine, to prepare for, or respond to, any actual, threatened, or potential bioterrorism or epidemic, as part of an inoculation program in connection with the worker’s occupation, geographical area, or other category that includes the worker, or resulting from the transmission of the disease from another employee or member of the public inoculated under the program, is presumed to arise out of and in the course of the employment and all care or treatment of the worker, including testing, diagnosis, surveillance and monitoring of the worker’s condition, and all time during which the worker is unable to work while receiving the care or treatment is compensable under the provisions of R.S. 34:15-1 et seq.” As with other statutory presumptions, the employer can rebut the presumption by a preponderance of the evidence standard, meaning proof by more than 50% that the adverse reaction is not work related.
John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.