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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

The Ohio Board of Pharmacy’s Latest Batch of Rules: What Providers Should Know

January 15, 2024The Ohio Board of Pharmacy released several new rules and proposed amendments to existing rules over the past month that will significantly impact pharmacy operations. Topics range from updates to the Terminal Distributor of Dangerous Drugs license to mobile clinics to mandatory rest breaks for pharmacists of outpatient pharmacies. A summary of the proposed changes is below, along with instructions for commenting on the rules. Your BMD healthcare attorney can help write comment letters and submit the comments on your behalf as well.Client Alert

Employee or Independent Contractor? New Guidance Issued by the Department of Labor

January 10, 2024On January 9, 2024, the U.S. Department of Labor (DOL) issued its long-awaited final rule — effective March 11, 2024 — revising its prior interpretation of worker classifications under the federal Fair Labor Standards Act (FLSA). The new final rule rescinds the standard previously established in 2021, in turn, shifting the analysis of whether a worker is an employee (versus an independent contractor) of a business from a more streamlined “economic reality” test to a more complex “totality of the circumstances” standard.Client Alert

Increased Medicaid Rates to Take Effect This Month for Ohio Providers

January 5, 2024As required by House Bill 33, Ohio’s 2024-2025 operating budget bill, reimbursement rates paid by the Ohio Department of Medicaid will increase for a wide range of providers starting on January 1, 2024.Client Alert

Corporate Transparency Act Update

December 27, 2023The Corporate Transparency Act (“CTA”), with an effective date of January 1, 2024, is set to impose strict reporting guidelines on business owners throughout the country. The following provides a brief update on two aspects of the CTA ahead of its effectiveness next week.Client Alert

The Second Wave of UnitedHealthcare's Prior Authorization Cuts Started in November

December 11, 2023In August 2023, UnitedHealthcare released its plan to eliminate roughly one-fifth of its then-current prior authorization requirements. The first round of prior authorization cuts took effect on September 1, 2023. In that round, UnitedHealthcare eliminated the necessity for some prior authorizations for UnitedHealthcare Medicare Advantage, UnitedHealthcare commercial, UnitedHealthcare Oxford and UnitedHealthcare Individual Exchange plan members. The second and final round of prior authorization cuts began on November 1, 2023. The November 2023 Prior Authorization Cuts apply to the same plans as well as community plans (i.e., Medicaid managed care plans).
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