By: RW Attorney Anne-Marie L. Storey
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. As usual, there is no definitive answer to this question and it will depend on the specific facts of each case.
If an employer requires an employee to have a 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.
As with many other things in the employment arena, employers’ actions based on the best of intentions can sometimes result in negative and unwanted consequences. Employers who offer or encourage flu shots to employees are urged to think through these issues and be aware of the potential liability that might result from their good acts.
Contact Anne-Marie at Astorey@rudmanwinchell.com