Commentary
Pilots are protesting Southwest Airlines’ requirement that all employees must get COVID-19 vaccinations, and news reports speculated that mass cancelations of Southwest flights that began over the weekend were the result of pilots staging a “sickout.” But employee protests, sickouts, walk-outs, and terminations may not be the biggest threats employers face if they impose vaccine mandates.
Employers that are considering forcing their employees to get COVID-19 vaccines as a condition of employment should be aware they could face legal liability—and potentially for big money—if and when an employee or potential hire suffers death or other adverse health effects from the vaccine.
The federal government has given clear and blanket legal protection to itself and vaccine manufacturers. However, the federal government has not given such clear and blanket protection to employers that force employees to take the vaccine.
Some legal experts and vaccine proponents argue worker compensation laws and their limited liability provisions may apply to an employee vaccination claim. The argument is that vaccine side effects are essentially the same as a workplace injury. Workers’ compensation insurance pays the actual costs of medical treatment and lost wages due to a workplace injury, but does not allow a worker to sue for pain and suffering, impacts on life functions, and other damages.
While courts of law could rule that workers’ compensation applies, or could rule that employers are immune from liability due to government pressure imposed on employers to require vaccination, that has yet to be established in the courts. Until and unless the courts grant universal legal protection for requiring vaccination, the federal government is requiring employers to take a legal risk that it’s not willing to take itself.
So long as there is any legal uncertainty regarding the topic, trial lawyers will look for opportunities to file lawsuits that could bankrupt an employer in legal fees, even if the employer prevails on the underlying claim. And if a worker prevails on an underlying claim, verdicts on damages for death or debilitating injuries could reach millions of dollars.
The case for employer legal protection becomes even more precarious when considering the mounting evidence that COVID-19 vaccines are causing more widespread and serious side-effects than initially hoped for and reported. In a recent exposé by Project Veritas, federal Health and Human Services medical staff admit there are far more people possibly dying and suffering debilitating side effects from the vaccine than the government is acknowledging. Even if vaccine proponents assert the deaths and debilitating health impacts shortly after receiving a COVID-19 vaccine are merely coincidental rather than caused by the vaccine, a jury determining liability and damages could determine otherwise.
Also, many employees can prove they have already developed COVID-19 antibodies via natural immunity or are in high-risk groups for vaccine side-effects. If a company’s vaccine policy does not allow exceptions for these cases, that may enhance liability when people in either group suffer harm as a result of an employer-mandated vaccination. Will the courts still apply blanket legal liability even in these cases? Some people may think they know the answer, but there is no clear and binding law or legal ruling yet on the subject.
Despite these legal risks and the lack of clear legal immunity, the Biden administration is counting on a proposed Occupational Safety and Health Administration (OSHA) rule to force businesses with 100 or more employees to require COVID-19 vaccination as a condition of employment.
Employers should beware, however, that the rule has yet to be enacted. Moreover, the proposed rule will certainly face credible legal challenges, including attorneys general in at least 24 states signaling they will legally challenge the OSHA rule. Reliance on a controversial proposed rule that has yet to be implemented and will likely face intense and credible legal scrutiny is a risky proposition in itself.
Mandating COVID-19 vaccinations is not as simple as it seems. Employers would be wise to consult with a practicing attorney before deciding whether or not to require employees take a COVID-19 vaccine.
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