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Employer Liability for COVID-19 Vaccine Side Effects

Client Alert
June 9, 2021

As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability.

Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:

DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.

This is welcome news and will help facilitate employers’ proactive efforts to protect employees and maintain a safe workplace.

Ohio workers’ compensation law, however, is not so clear. In 1934, the Ohio Supreme Court held in Spicer Mfg. Co. v. Tucker that an employee’s death resulting from a smallpox vaccination was covered under the Workers’ Compensation Act. The decision was based primarily upon the fact that the employer required the employee to obtain the vaccine as a condition of continued employment.

Scant precedent since the Spicer decision includes the 2016 Eighth District Court of Appeals decision in Rolsen v. Walgreen Co. In Rolsen, an employee filed a workers’ compensation claim after experiencing adverse symptoms from a pneumonia vaccine. The court of appeals held that the illness was not sustained in the course of employment since the vaccine was encouraged but not required by the employer. The court of appeals arrived at this conclusion despite the fact that the employee received the vaccine on the employer’s premises during the employee’s working hours.

Ohio Industrial Commission decisions vary and do not provide a great deal of guidance to employers. However, careful implementation of a vaccine policy can substantially mitigate an employer’s workers’ compensation liability for adverse reactions. For assistance in developing such a policy and for the latest OSHA updates, please contact BMD Labor + Employment Member Stephen Matasich at sematasich@bmdllc.com.

Labor LawEmployement LawStephen E. Matasich
Client Alert

Advanced Practice Providers and Telemedicine Start-Up Surge

March 8, 2022Throughout the COVID-19 pandemic, we heard a lot about “surges” that happened all over the country regarding the virus. One of the other interesting “surges” we have followed is the “surge” in new healthcare business start-ups, particularly businesses owned by advanced practice providers, such as nurse practitioners, physician assistants, certified nurse midwives, clinical nurse specialists, and certified registered nurse anesthetists (“Advanced Practice Providers” or “APPs”). One of the hottest areas in the healthcare start-up surge has been the creation of practices that are telemedicine focused.Client Alert

Ohio Department of Health Releases Updated Charge Limits for Medical Records

March 7, 2022Under Ohio law, a healthcare provider or medical records company that receives a request for a copy of a patient's medical record may charge an amount in accordance with the limits set forth in Ohio Revised Code Section 3701.741. The allowable amounts are increased or decreased annually by the average percentage of increase or decrease in the consumer price index for all urban consumers, prepared by the United States Department of Labor, Bureau of Labor Statistics, for the immediately preceding calendar year over the calendar year immediately preceding that year, as reported by the Bureau. The Director of the Ohio Department of Health makes this determination and adjusts the amounts accordingly. The list is then published, here.Client Alert

No Surprises Act Compliance (Published by NAMAS, 2/25/22)

March 7, 2022The Department of Health and Human Services published three parts to the No Surprises Act towards the end of 2021, which took effect January 1, 2022. The Act is intended to protect consumers from “balance billing,” which occurs when a patient receives a bill with a higher price than they may have anticipated because they did not have knowledge that the provider or facility was out-of-network. The purpose of this article is to note certain requirements that compliance employees will need to be aware of at their facilities, including notice and consent, good faith estimates, and public disclosures.Client Alert

No Surprises Act and You (Published in the SCMS Winter 2022 Newsletter)

March 3, 2022Legislation has been adopted by the United States Congress and the Ohio Legislature known as the “No Surprises Act” which attempts to regulate billing by professionals and facilities to patients who are not in networks with those facilities or providers at those facilities. The federal bill was triggered by some sensational news stories of patients being billed for tens of thousands of dollars for emergency care when the hospital was out of the network under the patient’s insurance plans.Client Alert

Are You Impacted by the Project Labor Agreement Executive Order?

February 28, 2022Project Labor Agreements (PLAs) are a quasi-collective bargaining agreement between employers and unions. They establish the terms and conditions of employment, including dispute resolution. They are put into place on specific projects and apply to the contractor, whether it is union or non-union. Employees hired on the project will be treated as union.
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