As COVID-19 vaccines are becoming more accessible to the general public, employers may be considering a mandatory administration of the vaccine in an effort to protect their employees, customers, and patients during the pandemic. Even though vaccinations have been determined to be relatively safe[1], employers should be aware of their responsibility under New Jersey State Workers’ Compensation law to employees that suffer an adverse reaction.
While there is limited guidance on this issue, workers’ compensation laws in New Jersey have made it clear that recreational and social activities are not compensable unless they are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale.[2] Accordingly, an employer who demands COVID-19 vaccination of employees is making that activity inherently incident of employment, and any adverse reactions resulting therefrom would likely be found compensable.
However, if the vaccination is only offered voluntarily - an adversely affected employee would have to show benefit to the employer beyond the improvement of health and morale. This is akin to an employer providing free meals or access to a recreation center. Generally, the main purpose of these perks is improved employee wellbeing and a positive work environment. This means that an injured employee must prove his employer obtained a benefit, beyond the norm, in offering him a voluntary vaccination. While not an unfeasible task, voluntary vaccinations certainly do not hold the same compensability likelihood as their mandatory counterparts. Although, it must be noted that, a voluntary vaccination program coupled with a strong suggestion to participate may be deemed an incident of employment, and the employer held responsible for any adverse reactions.
To fully evaluate compensability, we must also look toward published case law. Unfortunately, the most recent case to tackle this issue, Saintsing v. Steinbach Company[3], dates to 1949. In Saintsing, an employer strongly suggested his employees receive a free smallpox vaccine to combat against a recent spread of the disease. Unfortunately, one employee suffered a severe reaction to the vaccine and filed a workers’ compensation claim. The case made its way to the Appellate Division who found in favor of the employee, ruling the employer’s recommendation to participate classified the risk as an incident of employment and that the activity mutually benefited both parties.
Of importance from this ruling is the Appellate Division’s reliance on the Mutual Benefit Doctrine, which holds that an injury suffered by an employee is usually compensable while performing an act for the mutual benefit of the employer and the employee, however slight the employer’s benefit. While local workers’ compensation courts have almost universally adopted the health and morale test, this case is the most recent guidance from the Appellate Division and a much easier burden of proof for an employee to overcome– should a court elect to use it.
While the aforementioned workers’ compensation laws present ambiguity as to compensability, N.J.S.A. 34:15-31.6[4] specifically addresses injury, illness, and death resulting from the administration of vaccines to public safety workers preparing for or responding to an epidemic. For compensability purposes, this provision creates a rebuttable presumption that a public safety workers’ adverse reaction to an employer-provided vaccine arose out of and in the course of employment. In addition to this statute, Governor Phil Murphy also signed Senate Bill 2380[5] on September 14, 2020, which creates a rebuttable presumption of workers' compensation coverage for COVID-19 cases contracted by "essential employees" during a public health emergency. The law is retroactive to March 9, 2020, and casts a wide net when defining an essential employee, from grocery store workers to construction workers and, of course, medical providers. While this legislation deals with contracted cases of COVID-19, it is not hard to imagine how this may be used to bolster an essential employee’s argument that an adverse reaction to an employer-provided vaccination, whether mandatory or voluntary, is compensable.
[1] Vaccine Adverse Events: Separating Myth from Reality. (https://www.aafp.org/afp/2017/0615/p786.html)
[2]Title 34:15-7. (https://law.justia.com/codes/new-jersey/2009/title-34/34-15/34-15-7/)
[3] Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949). (https://casetext.com/case/saintsing-v-steinbach-company)
[4]Title 34:15-31.6. (https://www.nj.gov/labor/forms_pdfs/wc/pdf/wc_law.pdf)
[5]Senate Bill (SB) 2380. (https://www.njleg.state.nj.us/2020/Bills/S2500/2380_R1.PDF)
