Refusal of COVID-19 Vaccine, If Offered, Could Bar Recovery in COVID-19 Workers’ Compensation Claims

The COVID-19 pandemic has proved an interesting challenge to workers’ compensation systems around the country. Specifically, there has been a significant push for providing for coverage of healthcare workers and other front-line workers who have faced, and continue to face, a greater risk of exposure than the majority of the population.

After Virginia’s first attempt at a bill to provide for a healthcare provider COVID-19 presumption was passed by indefinitely during the 2020 Special Session I, it ultimately succeeded in both chambers during the 2021 Special Session, and was signed into law by Governor Northam on March 31, 2021. This most recent version of the legislation, HB 1985, is different from earlier forms proposed in the 2020 Special Session I, as it reflects continued developments and advancements in the prevention, diagnosis, and treatment of COVID-19.

Pursuant to HB 1985, healthcare providers who suffer disability or death due to COVID-19 are entitled to the presumption that COVID-19 is a compensable occupational disease within the meaning of the Act. Of note, this legislation is retroactive, applying to death or disability after March 12, 2020. In order to be entitled to this presumption if the death or disability occurs between March 12, 2020 and July 1, 2020, the worker must show either that they were given a positive diagnosis following a positive test result, or that they exhibited signs and symptoms of COVID-19 requiring medical treatment. For all cases on or after July 1, 2020, the worker must show both.

The most interesting addition to the successful legislation from the 2021 Special Session deals with vaccination. Of course, at the time the previous bill was passed by indefinitely in September 2020, we were still over two months away from the FDA’s first Emergency Use Authorization for a COVID-19 vaccine.

Under the legislation recently signed into law by Governor Northam, a person seeking coverage under the COVID-19 presumption will be barred from the benefit of the presumption if they did not undergo a COVID-19 vaccine after it was offered by their employer. This would operate similarly to the pre-employment physical examination requirement of the long-established heart and lung presumptions.

As the law currently stands, to be exempt from this requirement, the proponent must provide a written declaration from their physician that COVID-19 vaccination would pose a significant risk to their health. There is no other form of exemption provided for in this law. Of course, if the employer does not offer the proponent worker a vaccine, no vaccination is required to trigger the application of presumption. Any carriers or employers investigating potential COVID-19 claims should determine, as threshold issues, if the worker has received a COVID-19 vaccination, and if the employer offered the worker a COVID-19 vaccine.

There are significant benefits to the vaccine requirement in Virginia’s new COVID-19 healthcare provider presumption. Of course, it serves an important role in encouraging people to undergo vaccination, which benefits the community and nation as a whole. Additionally, it will necessarily reduce the number of compensable COVID-19 occupational disease workers’ compensation claims by greatly reducing the chance of transmission to workers and resulting infection.

As concerns regarding vaccine hesitancy and vaccine access continue to stymie progress in reducing COVID-19 transmission and infection in the United States, we can expect the various legislatures to continue to use mechanisms such as this to encourage vaccination, in hopes that we can someday soon return to some version of “normal life.”

As always, Ford Richardson will continue to monitor developments in this area, as well as in all areas of the law. If you have questions or concerns, please do not hesitate to contact us.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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