United States: Will We Say Goodbye To Workers' Compensation Immunity For Mandatory COVID Vaccination-related Damages?

Keeping an eye on Ohio House Bill 401

Even as the federal government has moved toward mandating COVID vaccination by many employers, a bill introduced in the Ohio legislature, if passed, would eliminate workers' compensation immunity and expose employers to potential liability for injuries incurred as a result of a mandatory vaccination.

On Aug. 24, 2021, a bill was introduced at the Ohio House of Representatives which would create a cause of action for employees who are injured as a result of receiving an employer mandated COVID-19 vaccination. The bill would revise Revised Code 4113 to permit employees to sue employers in common pleas court for damages caused by COVID-19 vaccines. If adopted as written, the text would read (in pertinent part) as follows:

Notwithstanding any provision of the Revised Code to the contrary, an employee may bring a claim against an employer in a court of competent jurisdiction for damages caused by a COVID-19 vaccination if both of the following apply:

(1) The employer required the employee to receive the vaccine as a condition of employment.

(2) The employee brings the claim within five years after the date on which the employee received the vaccine.

The bill also amends the workers' compensation statute to exclude injuries or disabilities caused by COVID-19 vaccinations from the definition of injury. That amendment effectively eliminates workers' compensation immunity as a defense to an employee's lawsuit for alleged vaccination-related damages.

It is unclear whether the bill will become law, but it certainly has garnered attention due to the departure from the traditional legal route for injuries sustained in connection to employment. In addition to eliminating employer's workers' compensation immunity, the bill provides for a five-year statute of limitations - much longer than the one year limitations period which generally applies to a workers' compensation claim.

Particularly in light of the President's directive that OSHA issue an emergency temporary standard to mandate vaccinations or weekly testing for many private sector businesses, employers should take care to monitor all federal, state and local authority in this area. We will continue to keep you updated on all significant vaccine-related developments.