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Written by: Lindsay Underwood
While COVID-19 continues to spread, many businesses are working to keep their doors open and stave off another shutdown. As part of that effort, and because of the recent full FDA approval of the Pfizer vaccine, we are seeing a trend toward mandatory vaccination policies. This raises questions about how mandatory vaccines, and possible adverse reactions, could result in new workers’ compensation claims. We can reference existing vaccine policies to determine when insureds could bear the responsibility for providing benefits where an employee sustains an adverse reaction to a mandatory vaccine. We will argue that when a vaccine is encouraged, but not mandated, any adverse reaction does not arise out of the employment. However, once it is mandated, it is nearly impossible to argue that any compensable occupational disease or injury by accident arising out of that mandatory vaccine no longer arises out of the employment.
N.C.G.S. § 97-53 (13) provides that an occupational disease must be “due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.” The NC Supreme Court has held that this provision requires that the disease is (1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and, (3) there must be a causal connection between the disease and the claimant’s employment. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93-94, 301 S.E.2d 350 (1983).
In cases where the employment exposed the employee to a greater risk of developing the disease than the general public, the first two elements listed above are satisfied. Thus, any employee arguing an entitlement to benefits after sustaining an adverse reaction from a mandatory COVID-19 vaccine will have to prove they are at an increased risk of developing their condition as a result of the employment, and also establish a causal connection between their reaction and employment. NC courts require a link between the nature of the employment and the alleged disease.
If an employee is required to receive a COVID-19 vaccine as a term of their employment, any medically connected adverse reaction to that vaccine would likely be determined to have placed the employee at an “increased risk” of developing that reaction due to the employment. The third element of the Rutledge test is satisfied where the occupational exposure “significantly contributed to, or was a significant causal factor in, the disease’s development.” The NC Supreme Court has held that where expert opinion testimony is based upon speculation and conjecture, it is not sufficiently reliable to qualify as competent evidence on medical causation. The evidence must take the case out of the realm of conjecture and remote possibility.
In one case, Kai-Ling Fu v. UNC Chapel Hill, 188 N.C. App. 610, 655 S.E.2d 907 (2008), the employee reported an adverse reaction after being required to be vaccinated against a Venezuelan virus as part of her research position. The employee reported that, after the vaccination, she experienced headaches, fever, and shortness of breath. She was prescribed an inhaler and was referred to counseling due to anxiety. She was also instructed to remain out of work due to fatigue. The Court of Appeals held that the employee was at a higher risk than the general public of developing her symptoms. It was specifically noted that when an individual has to take a vaccine because of their employment they are likely at an increased risk for having systemic side effects, as opposed to that of the general public.
Based on the above, it is likely that any adverse reaction from a mandatory COVID-19 vaccine would result in exposure for a workers’ compensation claim. As in any other alleged occupational disease claim, the employee would still need to prove the elements of the Rutledge test, to include showing a causal relationship between any symptoms and the vaccine. We may also have a defense under the “peculiar sensitivity” theory, where an employee’s sensitivity to a vaccine makes their reaction unique. Though that defense is difficult to prove, it should be part of any post-injury investigation. Although most of the cases will be analyzed under the occupational disease standard, we may end up with injury by accident exposure as well. If the vaccine itself is not administered properly and the employee is injured during the administration of the vaccine, that could be seen as an injury by accident. Under either argument, the main investigation will be whether the alleged adverse reaction is truly from the vaccine and not from some other pre-existing condition that the employee might have.