Further Discussion on COVID-19 Vaccination Employer Liability Issues

Question: I am considering not requiring my employees to get vaccinated. I am concerned an unvaccinated employee may claim she or he got COVID-19 at work, or that patients will claim they got COVID-19 from my office. Can I get sued, and will I be held liable?

Answer: I addressed questions about COVID-19 and liability in last month’s Journal. This month I’ll continue this discussion in more detail.

Regarding the above question, the employee becoming infected would likely claim that the infection was the result of your negligence, a violation of OSHA’s general duty clause (which is also based on a negligence standard), or both. Whether there would be a finding of negligence cannot be predicted with certainty and would depend on the facts and circumstances of each case.

When assessing an employer’s negligence, such factors as the PPE made available to employees, what other preventative measures were taken by the employer (including requiring employees to be vaccinated), what information was provided by the employer, the level of screening of patients and co-workers, the actual enforcement and compliance with the employer’s COVID-19 policies and procedures, and others will all come into play in deciding whether an employer was negligent.

A plaintiff would have the burden of proving causation. That means the employee or patient will have to prove that they got infected due to contact with someone/something at your office. Generally, this will be very difficult to establish, not knowing for sure when the infection occurred and given the multiple contacts with people and things that we all regularly have.

The contributorily negligence of the employee or patient would also be considered. Did the patient or employee wear PPE properly at all times and follow all your COVID-19 policies and procedures? The failure of the employee or patient to be vaccinated if they were able to be vaccinated would be a factor in determining contributory negligence.

Although no definitive answer can be given, it certainly appears that it will be difficult to hold an employer liable for not requiring employees to be vaccinated if the employer has proper COVID-19 policies and procedures in place and is enforcing them.

Read the complete Q&A in the Journal of the Michigan Dental Association on page 20.

About the author:

Daniel J. Schulte has more than 25 years of experience helping clients solve tough problems and capitalize on opportunities that require a blend of business and legal expertise. His practice focuses on addressing the legal, business, licensing, and regulatory challenges of health care professionals, organizations, and facilities. Dan understands how legal issues impact business objectives and, as a result, offers his clients practical, results-oriented advice. He is a Certified Public Accountant, former managing partner and current executive committee member of the firm. Dan also serves as co-chair of the firm’s Health Care Practice Group.

Other posts to consider:

• Q&A On Legal Issues And COVID-19 Vaccination
• Webinar: What Employers Should Know About the COVID-19 Vaccine
• BCBSM Lawsuit Settlement May Bode Well For ADA