While the distribution of the COVID-19 vaccine is advancing our effort to recover from the pandemic, one significant limitation is the degree of acceptance and level of trust placed in the vaccine and fear of an adverse reaction.  This uncertainty has clear implications for law enforcement agencies.

The purpose of this client alert is to provide an approach to assuring employees about their Workers’ Compensation protection as they make the critical determination of whether to receive the vaccine.

This discussion must begin with consideration of the fundamental structure of California Workers’ Compensation.  It is based on the concept of employees having an established and defined mechanism of treatment for workplace injuries and, where applicable, the absolute liability of employers for those injuries.  In exchange, Workers’ Compensation is ordinarily the employee’s only remedy, limiting the ability of the injured worker to sue their employer and placing a statutory cap on damages[1].  This concept, referred to as the Exclusive Remedy Rule, gives rise to an administrative perspective prioritizing safeguarding the employee.

Cal. Lab Code § 3202

This division and Division 5 (commencing with Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.  (Emphasis added.)

The threshold question is whether a law enforcement employee who voluntarily receives the vaccine is protected by Workers’ Compensation if they suffer an adverse reaction as a result of taking the vaccine.  This determination is dictated by the extent to which receiving the vaccine would be considered part of employment.  The criteria for this evaluation are defined in Labor Code 3600:

(a)  Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:

(2)     Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment. (Emphasis added.)

Cal Lab Code § 3600

California Courts previously have examined the issue of injuries arising from vaccine administration.  In 1949, the California Court of Appeal upheld compensability for injury resulting from an employment vaccine.  A U.S.O. Camp Show’s musician contracted encephalitis after taking vaccinations at the direction of the employer.  The vaccinations were done by physicians designated and paid by the employer.

“So far as we are advised it has been held in every American jurisdiction in which the question has arisen that, as stated in 58 American Jurisprudence at page 775:  ‘Incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer. . . .’” (Emphasis added.)

Roberts v. U. S. O. Camp Shows, Inc. (1949) 91 Cal. App. 2d 884, 885.  (See also Maher v. Workers’ Comp. Appeals Bd., (1983) 33 Cal. 3d 729, 734-35; Bell v. Macy’s California (1989) 212 Cal. App. 3d 1442, 1449 (employer-provided treatment at clinic staffed by nurse for benefit of employees and customers was within scope of employment bargain).  The court’s decision in Bell was disapproved by the Supreme Court on other grounds in Snyder v. Michael’s Stores, Inc. (1997) 16 Cal. 4th 991, 1004–1007.)

The issue of work-related vaccines was again considered by the courts in 2001.  (See Integrated Data Co. v. Workers’ Compensation Appeals Bd. (2001) 66 Cal. Comp. Cases 642, 2001 Cal. Wrk. Comp. LEXIS 5013.  The injured employee, a data entry operator, had an adverse reaction to a flu shot she received during her lunch hour at an employer sponsored health fair on the employer’s premises.  The court concluded “the employer expressly or impliedly authorized the flu shots and acquiesced to its employees receiving them.”  The applicant contended the “shot was a reasonable expectancy of her employment.”[2] The outcome was that the inoculation was determined to be in the course of employment and the injury was compensable.

Under present circumstances, a whole series of factors must be taken into consideration as part of determining injury compensability.  Some of the primary elements are identified below:

  1. Encouraged by agency leadership or done with their knowledge;
  2. Access to the vaccine at this time is the result of law enforcement employment duties and responsibilities;
  3. Benefits the agency from reduced absenteeism;
  4. Reduces liability for the agency in the areas of Workers’ Compensation, maintaining a safe workplace, and risk of harm to community members or families of employees;
  5. Protects against a duty-related risk;
  6. Potentially conducted on employer premises or with grant of release time;
  7. First responders are at heightened risk of exposure; and
  8. Compensability is consistent with the presumptions created under Emergency Order N-62-20[3] and SB1159.[4]

When we consider these and other variables in the context of previous decisions and the totality of the COVID-19 pandemic, we come to a general overall conclusion that a public-safety employee in an assignment involving presence at the workplace will very likely be protected under Workers’ Compensation if they suffer an injury or illness from voluntary acceptance of the vaccine.

Role of Senior Leadership

One of the critical aspects of these circumstances is to be certain that leaders are fully apprised of the extent of their ability to influence how this issue impacts their departments.  A self-insured public entity retains the authority to ensure certainty among employees with respect to how their potential claims for injuries resulting from administration of the COVID vaccine will be treated.

In the case of a private employer who purchases Workers’ Compensation coverage in the insurance market, the employer basically drops out of the case once a claim is accepted.  However, for self-insured public entities, the employer retains a considerable amount of control with respect to any claims made.  Applying this authority, an agency claims administrator can make a generalized determination now of their intention to accept as compensable vaccine-related injuries for specified classes of employees, absent unforeseen limiting circumstances.  This determination can become part of the basis for providing good faith assurance to employees during the time period when they are weighing this pivotal decision.

In taking this step, it is important to note an organization does not give up claim management authority.[5]  From the practical perspective, it is also informative to assess the true cost of managing and litigating a claim and how it may offset a substantial portion of any leave or treatment an injured employee might require.  This calculus can also take into consideration the human and financial costs avoided for every vaccinated employee who remained healthy and did not contract COVID-19.

HOW THIS AFFECTS YOUR AGENCY

Law enforcement leaders who see a benefit to their agency and community from this approach are encouraged to confer with their agency legal counsel as well as their designated Workers’ Compensation claims administrator to determine an appropriate course of action that meets the respective goals of all stakeholders in this situation.  This client alert is designed not to dictate but rather to help inform that discussion.

As always, if you wish to discuss this matter in greater detail, please feel free to contact Paul Coble at (916) 771-0635 or Richard Lucero at (714) 446–1400 or via email at prc@jones-mayer.com or ral@jones-mayer.com.
respectively.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] See Cal. Labor Code sections 3600, 3602, and 5300.

[2] Id. at 644.

[3] https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf

[4]https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB1159

[5] Cal. Lab. Code § 4610