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COVID-19 Vaccine Alert for Illinois Employers: What if Your Employee Has A Reaction to the Vaccine? Who is Liable?

During this horrible pandemic, there is a concern among employees about the risk of an adverse reaction to the COVID-19 vaccine. Health care professionals are trying to alleviate these fears by emphasizing that any reaction to the COVID-19 vaccine is usually very minor or rare.

The Illinois Workers’ Compensation Act, Section 11, states as follows:

Vaccines

Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act.

Based upon Section 11 of the Illinois Workers’ Compensation Act (as stated above), “any injury to or disease or death of an employee arising from the administration of a vaccine.… is deemed to arise out of and in the course of the employment.” Thus, it would be a compensable injury covered under the employer’s workers compensation insurance.

Further, as stated in Section 11 of the Illinois Workers’ Compensation Act, the following are the three circumstances under which the employee receiving the vaccine is covered:

  1. Voluntary inoculation program in connection with the person’s employment, or
  2. In connection with any governmental program, or
  3. Recommendation for the inoculation of workers in the employee’s occupation, geographical area or other category that includes the employee.

In short, if the employee has a vaccine injury, workers’ compensation insurance would likely pay the employee’s medical bills, lost time, and any permanent injury/disability, depending on the facts and circumstances of the individual case.

Normally, a workers’ compensation claim is the exclusive remedy of an employee against the employer for a covered injury. The employee is barred from suing the employer in a court for negligence. However, there may be potential third-party liability against the health care provider administering the vaccine or the manufacturer of the vaccines. Future federal COVID-19 legislation may provide protection to various parties as to liability.

It should be noted that in Illinois an employee cannot release a workers’ compensation claim prior to injury (it is barred/against public policy). After a workers’ compensation injury, the employee can only release/settle the claim by a settlement contract approved by the Illinois Workers’ Compensation Commission.

Questions? Contact attorney Anthony J. Caruso, Jr., in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

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