Questions swirl around available COVID vaccines. Some are medical issues and others are legal issues. The most common legal question is, "Can employers demand the vaccine?"
An employer's legal capacity to claim the vaccine is outside the scope of this article; are the most qualified to answer this question. This article focuses on the insurance implications if the vaccine is prescribed by the employer.
Although the employer may legally require employee vaccinations, employers must consider all relevant factors arising from the decision before making a final decision. Insurance and availability of coverage is an economic reality that must be considered as part of the discussion.
Who is to blame
Manufacturers may be subject to strict liability and are therefore prosecuted for producing a product that is not defective and / or does not have an unreasonable risk of causing damage. Pharmaceutical (vaccine) manufacturers are subject to the same standards.
However, there is a caution regarding manufacturers of COVID vaccines, vaccine manufacturers are immune from legal liability ̵
In addition, it is unlikely that the government will accept legal liability for injuries or deaths resulting from the vaccines. In addition, some states have extended immunity to include those who administer the vaccine (doctors, pharmacists, etc.).
If the injured party cannot follow the manufacturer, the government or the administrator, who is next? If the employer demanded the vaccinations – the answer is something obvious, the employer. An employer who required the vaccine may be the only party who CAN be sued and possibly held liable in the near future.
Is coverage available
If, as a demonstrable result of the vaccine, an employee dies or becomes seriously ill in the next few months or years (while liability exists), the employer who demanded that the employee be vaccinated may end up at the end of the defendant's trial. Employers who require vaccination can go to court.
If an employer ends up in court, is there any insurance coverage available to cover the defense and / or any granted allotment? Three possible coverage alternatives will come to mind immediately:
- Employee compensation,
- Employer liability; and
- Responsibility for recruitment procedures.
How can these coverages respond to a vaccine-related death or injury to an employee if the employer needs the vaccine? Let's make a quick overview of each one.
In order to be entitled to compensation during the workers' compensation, the injury must arise from the course and extent of the work. Furthermore, an occupational disease or illness that causes death or injury can only be reimbursed if the illness, disease or result is specific to the industry or job. More information about compensation in employees' compensation can be found in the VU article, "Occupational disease and ability to compensate."
Can death or serious injury / illness from an employer vaccine meet the requirements for compensation? Even if getting the vaccine was FOR work, it does not seem to occur from and during the course and scope of the work. In addition, illness or death is not specific to WORK, the result is one that members of the entire population (the general public) can be subject to. (Specific details on each of these claims for compensation can be found in “Occupational Disease and Compensability.”)
Clearing the barriers necessary to create a compensation injury under workers' compensation coverage can prove extremely difficult. Given the application of and the requirements for compensatory capacity currently applied in workers 'remuneration, there does not appear to be any protection provided by workers' remuneration policy.
Part two of the workers' compensation policy is employer liability. This is an often overlooked or even ignored gap between workers' compensation and general responsibility that few agents understand. An employer's responsibility primer is available in Big I & # 39 ;s Virtual University Research Library.
The employer's negligence and an ultimate assessment of legal liability on the part of the employer are important requirements before the employer's liability protection is triggered. If the employer does not neglect to cause the injury or illness, the employer is not liable. To be considered negligent, the injured party must prove:
- The employer was obliged to perform a duty;
- The employer broke the duty;
- An injury occurred; and
- The employer's breach of duty was the immediate cause of the injury.
(Note: A more detailed explanation of legal liability can be found in the article, How a person becomes legally responsible.)
Proving negligence by requiring a vaccine can be difficult. The manufacturer has the obligation to produce a safe vaccine, vaccine safety is not within the employer's control. It seems unlikely that the trigger for the employers' liability key will be triggered and it therefore seems unlikely that the employer's liability protection will respond. In addition, there are other limitations with the employer's liability protection that can also exclude coverage.
Liability internship responsibility
Since there is no standard form of employment internship coverage (EPL), how does an EPL policy anticipate that an employer requiring the vaccine may be more complicated, but then, perhaps not.
EPL is a type of "named risk" coverage. Although the term “named risk” is most often associated with and is applicable to property coverage, it can be used to describe certain liability insurances, in particular management liability insurance. An EPL policy only responds to " Wrong documents ," " Wrong employment rules " or whatever the subject policy calls the documents covered by the policy. What qualifies as a covered document is specified in the policy. Thus, it is a "named document" or named risk cover.
If the document leading to the trial is not named, the policy will not be triggered and there is no coverage. Add to this a specific exception for "bodily injury" found in most EPL policies and EPL does not appear to provide coverage if the employee develops a disease or dies from a necessary vaccine.
However, the EPL policy can be triggered if the employee is fired for refusing to take the vaccine. Furthermore, most EPL policies provide coverage for hostile work environments, so even if the employee is not fired, but the employer is ashamed, holds back campaigns or takes other such actions, the EPL can respond if the employee is right.
EPL may respond to a suit related to taking or not taking the vaccine, but it is unlikely to respond to any injury or death as a result of a necessary vaccine.
Whether an employer can claim the vaccine and under what conditions are substances that must be treated by employment lawyers. However, if the decision is made to require vaccines for employment, the company owner must consider the possible financial consequences if an employee becomes ill or even dies as a result of the vaccine.
Given the requirements and provisions of the most relevant insurance. policies discussed in this article, the employer may not have insurance coverage if they are sued and ultimately held liable for any illness or injury suffered by an employee due to necessary vaccinations.
Employers must make a business decision regarding vaccines. One factor that must be taken into account during the decision-making process is the potential financial consequences of the apparent lack of insurance cover. The reality of this lack of insurance coverage can prove to be very expensive for the employer.
Disclaimer : This information is to be construed as an opinion based only on a current understanding and application of the various policies. This should not be seen as legal advice or as a definitive answer from various insurance companies and insurers. Laws vary and can change over time.