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Memorandum: Employer Provided Vaccination Programs and Compensability under the Pennsylvania Workers’ Compensation Act

by | Dec 30, 2020 | Edwards, Victoria P., Employment Law, Farrell, Michael A, Health Law, Industry News

By: Victoria P. Edwards, Esquire

With the rolling out of the COVID-19 vaccinations there has been much interest, concern and speculation as to the liability of an employer who recommends or mandates to its employees that the receipt of the vaccination as a condition of returning to the workplace or of continuing employment, out of concern for its employees and the continuing operation of its business.  Accordingly, we looked into past claims of a similar nature and how the Workers’ Compensation authorities in Pennsylvania have responded to those claims.

There is no Pennsylvania Commonwealth Court or Pennsylvania Supreme Court case law on the question of the compensability of an “injury” sustained as a result of an employer administered vaccination program, regardless of whether the program is voluntary or mandatory.  However, there are several cases on point before the Pennsylvania Workers’ Compensation Appeal Board.  The cases indicate that where the vaccination program is mandatory, then finding that the injury was in the course and scope of employment is basically automatic. Where the vaccine was administered by the employer through a voluntary vaccination program, the question turns on whether or not the employee was furthering the interests of the employer by voluntarily agreeing to an employer administered vaccination.

CASES WHERE THE VACCINE IS ADMINISTERED VOLUNTARILY

In the case of Phillips v. Wyman Gordon Pennsylvania, 2016 WL 3262869 (May 6, 2016, WCAB), the claimant sustained an injury in the nature of Guillian-Barre Syndrome (GBS) after receiving a flu shot at work.  The Claimant in Phillips testified that he received the flu shot at work and believed it was mandatory.  The Employer produced testimony from the Employers Human Resources Manager who testified that the Employer offered flu shots to its employees as a courtesy, but employees were not required to get a shot and that there was no employment benefits for doing so.  While the WCJ found the Human Resources Manager more credible than the Claimant and accepted that the vaccination program was voluntary, the WCJ still concluded that the Claimant was within the course and scope of his employment at the time of his injury.  The Employer appealed arguing that the Claimant was not furthering the Employer’s business when he voluntarily received the shot.  The Appeal Board affirmed the decision of the WCJ that the Claimant was within the course and scope of his employment.  Despite the Employer’s assertion that the shot was voluntary, and that no employee received either a benefit or penalty for receiving or refusing the shot, the Appeal Board held that “it was clearly in Defendant’s best interest to have its employees vaccinated.”  In holding that the Claimant was within the course and scope of his employment, the Appeal Board noted that the Employer was, “attempting to ensure that there would be a sufficient number of healthy employees able to work and maintain production during the flu season.”

In the case of Cook vs. Campus Eye Center, 2000 WL 554505 (April 20, 2000, Pa WCAB), the Claimant had an adverse reaction to a hepatitis B vaccination that was administered by the employer and voluntarily received by the Claimant.  The first argument on appeal to the Appeal Board was that the Claimant was not within the course and scope of her employment because she voluntarily received the vaccination.  There was testimony before the workers’ compensation judge that the Claimant was advised by the employer’s office manager that there was a high risk of exposure to hepatitis B while working in the office, and the office manager let the Claimant know that vaccinations were available for free if she decided that she desired them.  Claimant’s family doctor testified on behalf of Claimant that Claimant would be exposed to hepatitis B as a receptionist in the ophthalmology office and that the employer benefits by giving employees hepatitis B vaccinations by lowering absenteeism and reducing healthcare costs.  Further, Claimant’s physician testified that Occupational Safety and Health Administration (OSHA) Regulations require employers to make vaccinations available to all employees who have occupational exposure to hepatitis B.  On behalf of the Employer, a doctor testified that the Claimant was offered the opportunity to be voluntarily given a hepatitis B vaccination that was available to all employees and that there were no ramifications if Claimant chose not to take the vaccination.

Based on this testimony, The Workers’ Compensation Judge in Cook found that the Claimant was in the course and scope of her employment and crediting the testimony of Claimant and her doctor who testified about the benefits of the vaccination to the Employer.  The Employer appealed and the Appeal Board affirmed the decision of the WCJ finding that there was substantial evidence to support the WCJ’s conclusion that the vaccine was received in the course and scope of Claimant’s employment.  The Appeal Board noted further that the consents that the Claimant received prior to receiving the vaccination read, “In keeping with the Company’s position to promote employee health and safety practices, employees are being encouraged to become vaccinated for protection against Hepatitis B.”

The Claimant in Cook then had the burden to prove the remaining elements of the claim.  The Claimant has the burden of proving the causal connection between the Claimant’s physical condition or symptoms and disability and the vaccination by unequivocal medical evidence.  In the Cook case the WCAB affirmed the WCJ’s decision that the Claimant failed to meet her burden of showing that she was disabled as a result of her receipt of the hepatitis B vaccination.  In Cook the WCJ credited the testimony of the IME physician who noted that the Claimant’s symptoms pre-dated the vaccination and could not be caused by an adverse reaction to the vaccine.

Based on Philips and Cook, even if the vaccine is voluntarily received and there are no negative employment consequences if the Claimant refuses the vaccine, if the Claimant can show that the vaccine furthered the employer’s interests, then it is likely that the WCJ and Appeal Board will find that the vaccine, administered by the employer on a voluntary basis is within the course and scope of employment.

However, there is case law that indicates that where the Claimant elects to receive a vaccine for her own benefit, which is not required or encouraged by the employer, and the vaccine is received during the workday, off the employer’s premises, the Claimant was found to not be in the course and scope of her employment when she took the vaccine.  Arnold v. Brandywine GI Associates, 1997 WL 62918 (October 9, 1997, WCAB).  In Arnold the Claimant was a receptionist and not involved in patient care so that she was at no increased risk of contracting hepatitis B as a result of her employment.  The hepatitis B vaccine was administered off of the employer’s premises.  The employer in Arnold produced testimony that the Claimant’s receipt of the vaccine was purely voluntary, unrelated to her job, and provided no benefit to Defendant.  On this basis, the WCJ held, and the Appeal Board affirmed, that the Claimant was not in the course and scope of her employment when she received the vaccine.

CASES WHERE THE VACCINE IS MANDATORILY ADMINISTERED BY THE EMPLOYER

In the recent case of Williams v. Holy Redeemer Health Systems, 2020 WL 1140343 (February 7, 2020, WCAB), the WCJ found and the Appeal Board upheld the finding that the Claimant sustained her burden in proving that she had suffered an injury and disability as a result of a flu shot that was mandatorily administered by her employer.  The question of course and scope of employment was not discussed in the decision as it appears that the argument was not raised by the employer.  Instead, the argument on appeal was that the Claimant’s medical evidence was incompetent and that the WCJ erred in concluding that the Claimant sustained her burden of proof.  The WCJ credited evidence from the Claimant’s treating family physician who opined that Claimant had a shoulder injury related to the vaccine and that she could not return to her full duty job and was not fully recovered.  In upholding the WCJ’s decision the Appeal Board stated that the WCJ has complete authority over questions of credibility and conflicting medical evidence and evidentiary weight.

Similarly, in the case of Archambo v. Thomas Jefferson University Hospitals, 2014 WL 686921 (February 7, 2014, WCAB), the WCJ’s determination that the Claimant was in the course and scope of employment was not appealed as an issue, where the flu shot was mandatorily administered by the employer.  Instead, in the Archambo case, the Employer argued that the WCJ did not make sufficient findings with regard to his credibility determinations.  The Appeal Board affirmed the WCJ’s credibility findings noting that the WCJ’s reliance on the credentials of the experts in making his credibility determination went to the weight of the evidence, which is within the exclusive province of the WCJ and cannot be disturbed on appeal.

CONCLUSION

Based on the above, where there is an employer administered vaccination program, administered at the employer’s pace of business, whether it is voluntary or mandatory, it appears that the WCJ and the Appeal Board are likely to find that the claimant is within the course and scope of employment when receiving the injection as the vaccine furthers the employer’s interests.