Liability for flu shots?
By Anne-Marie Storey
It is the time of year again that employers consider offering flu shots to employees and potentially their family members as well. While there are many obvious benefits to doing so, it is worth considering that there are some possible downsides as well. As one example, it is possible that negative health effects from a flu shot or other inoculation of an employee could constitute a work-related injury under certain circumstances.
If an employer requires an employee to have a shot or other vaccination, any resulting injury is likely to be work-related. The outcome is less clear when the vaccination is voluntary. Generally, the Workers’ Compensation Board will consider several factors in determining whether an injury is work-related, including whether the activity 1) directly or indirectly benefited the employer, 2) was within the terms, conditions or customs of the employment, or acquiesced in or permitted by the employer, 3) serves both a business and personal purpose, or represents an insubstantial deviation from the employment, 4) was employer or employee created, 5) was unreasonably reckless or created excessive risks or perils, and 6) occurred on the premises of the employer.
In the case of a flu or similar preventative shot, the Board might look at the nature of the illness at issue, whether the employer strongly urged the employee to have the shot even without a formal requirement, whether employees were permitted to have the shot on work time, whether the employer provided the shot at no or reduced cost, whether the employer benefitted from providing the shots in terms of, for instance, reduced absenteeism from illness or discounts on insurance rates, and whether the shot was made available to non-employees. Based on these factors there is a good possibility that in certain circumstances reaction from such shots would be deemed work-related.
Despite that possibility, employers must be mindful of the fact that the law does not permit the waiver of actual or potential workers’ compensation claims. So, if an employer has its employees sign a release as a condition of receiving the flu shot, the release would not operate to bar any such claims and should not contain such language at all.
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