Issues Pertaining To COVID-19 Vaccines For Municipalities

Are Adverse Reactions to Voluntary Vaccines Compensable In Workers’ Compensation?

This is an uncharted area of law where New Jersey cases provide very little guidance.  The last published case in New Jersey on the compensability of an adverse reaction to a voluntary vaccine program  dates 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….”

In the opinion of this practitioner, the Saintsing decision is no longer relevant because the New Jersey Workers’ Compensation Act was overhauled in 1979.  One new provision which was created by the Legislature specifically dealt with compensability of social and recreational activities. Under the new law, a social activity is only compensable if the employee can show the activity is a regular incident of employment and promotes a benefit beyond improvement of health and morale.  What might constitute a benefit beyond health and morale?  Perhaps a fundraiser or advertising event.  But the main purpose an employer would have in offering a voluntary vaccination program to employees is precisely improvement of employee health and morale.  Bearing in mind just how contagious COVID-19 is, any municipality that offers employees a voluntary vaccination program would have as its goal the promotion of better health and morale.

It remains to be seen what New Jersey courts will say on this issue. The only way to know for sure what the law is on adverse reactions to a voluntary vaccine program would be to get an opinion from a modern court at the appellate or Supreme Court level.  In the meantime, it seems sensible to adopt that view that voluntary vaccination programs would not subject municipalities to workers’ compensation claims for adverse vaccine reactions given the provision above contained in N.J.S.A. 34:15-7.

What About Adverse Reactions to Mandatory Vaccines?

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 two leading cases are Sager v. O.A. Peterson Construction Co. and Lozano v. Frank DeLuca Construction.  The theory of these cases is that compelling an employee to perform an action renders the action compensable.  Once an employee has no choice but to perform some action, naturally the employee will be covered if he or she is injured performing that action.

Can Municipalities Require Vaccinations of First Responders?

There is no provision in the law specifically for municipalities as opposed to other New Jersey employers when it comes to requiring vaccines.  Many public and private employers are taking the position that health care workers and public safety workers must be vaccinated. This is for the protection of the worker and the public. Certain past EEOC and OSHA-issued Guidances would support such a vaccination directive, as would the fact that, in New Jersey, most employment relationships are at will.  The EEOC has also provided a more recent guidance at the end of 2020 that the administration of a COVID vaccine is not considered a medical examination under the ADA.  This means that there is no requirement that the employer prove that the administration of the vaccine is job related and consistent with business necessity which is usually required under the ADA whenever an employer requires an employee to undergo a medical examination.

Nonetheless, employees who have a disability may seek reasonable accommodation in the form of being exempted from being vaccinated to accommodate their disabilities. In other words, for example, if an employee can show that he or she may suffer a severe allergic reaction to the COVID-19 vaccine which could threaten the employee’s health or life, the municipality would have to engage in an interactive dialogue and attempt to make reasonable accommodations, unless such accommodations would pose an undue hardship to the municipality or give rise to a direct threat of injury in the workplace.  There are also exceptions under the law for those who have sincerely held religious beliefs against taking vaccines.

An unanswered question is whether the municipality must negotiate such a mandatory vaccination policy as a term and condition of employment if the public employees being vaccinated are part of a collective bargaining unit.  Municipalities should address this issue with their municipal attorneys.  The municipality may have an argument that a vaccination policy falls  within managerial prerogative, but municipal counsel should provide guidance on this important issue.

Another important issue arising in the context of mandating vaccinations is how to treat employees who elect to exercise their rights under the Food, Drug & Cosmetic Act (“Act”) to refuse vaccination. The Act provides a statutory right to refuse vaccination, but does not provide a process for accommodating employees who elect to exercise such right. Employers with the aid of their legal counsel will need to decide whether (and how) to accommodate such employees in that situation.

Can A Public Entity Be Held Liable Civilly For Adverse Reactions to Vaccines?
 
In the example above regarding a voluntary vaccination program, if an employee of a municipality gets an adverse reaction and that reaction is not covered by workers’ compensation, the question arises whether the employee could sue civilly against the municipality? The statute which seems the most directly on point in answering this question is N.J.S.A. 59: 6-3, which reads, “Neither a public entity nor a public employee is liable for injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community.”  This suggests that an employee would not be able to bring a civil suit against the municipality for an adverse reaction to the vaccine because he or she would be subject to the Tort Claims defense noted above.
 
When an employee is covered by worker’s compensation and is injured by an employer, the only way the employee can sue the employer is by proving intentional harm.  That would almost certainly not be provable in the context of a vaccination program.
 
Municipalities should bear in mind that the current vaccines (Moderna and Pfizer) were authorized for emergency use only and not subject to the detailed examination and review by the FDA as other vaccines have been in the past.  Therefore municipalities are advised to consider getting signed releases as part of any vaccination program as protection against any possible lawsuits for adverse reactions.
 
By:  John H. Geaney, Esq.
Capehart Scatchard. P.A.