COVID-19
INSURANCE IMPLICATIONS OF REQUIRED VACCINES Questions swirl around the available COVID vaccines. Some are medical questions and some are legal questions. The most common legal question is, “Can employers require the vaccine?” An employer’s legal ability to require the vaccine is outside the scope of this article; employment attorneys are the most qualified to answer this question. This article’s focus is the insurance implications if the vaccine is mandated by the employer. Even if the employer can legally require employee vaccinations, employers must consider all relevant factors arising from the decision before making a final decision. Insurance and the availability of coverage is a financial reality that must be considered as part of the discussion. Who is to Blame Manufacturers can be subject to strict liability and are thus charged with producing a product that is not defective and/or does not have an unreasonable risk of causing harm. Pharmaceutical (vaccine) manufacturers are subject to the same standards. But there is one caveat regarding COVID vaccine manufacturers, vaccine manufactures are immune from legal liability - at least temporarily - under the PREP Act. More detailed information on the PREP Act is available from the Congressional Research Service.
is somewhat obvious, the employer. An employer that required the vaccine may be the only party that CAN be sued and potentially held liable for the near future. Is Coverage Available If, as a provable result of the vaccine, an employee dies or becomes seriously ill in the next few months or years (while the liability protection is in place), the employer that required the employee be vaccinated may find themselves on the defendant end of a lawsuit. Employers mandating vaccination may find themselves in court. If an employer does end up in court, is there any insurance coverage available to cover the defense and/or any award granted? Three possible coverage options come to mind immediately: • Workers’ Compensation; • Employers’ Liability; and • Employment Practices Liability. How might these coverages respond to a vaccine-related death or injury of an employee if the employer requires the vaccine? Let’s undertake a quick overview of each. Workers’ Compensation
Further, it is unlikely the government will accept legal liability for any injury or death resulting from the vaccines. Additionally, some states have extended immunity to include those who administer the vaccine (doctors, pharmacists, etc.).
To be compensable under workers’ compensation the injury must arise out of and be in the course and scope of employment. Further, an occupational illness or disease that causes death or injury is compensable only if the illness, disease or resulting is peculiar to the industry or job. More detail on compensability in workers’ compensation is available within the VU article, “Occupational Illness and Compensability.”
If the injured person cannot go after the manufacturer, the government or the administrator, who is next? If the employer required the vaccinations – the answer
Can death or severe injury/illness from an employerrequired vaccine meet the requirements for compensability? Although getting the vaccine was FOR
26 | APRIL 2021 |
wisconsin INDEPENDENT AGENT
