Mandatory Employee Vaccines

Mandatory Employee Vaccines?

Many businesses are rushing to require the COVID shots of all their employees. It seems to be trendy and perhaps they see it as a way to market their brand, or maybe they really believe they can stop COVID this way. But, this is not the wisest approach if they are seeking to minimize liability. While Johnson, Pfizer and Moderna have been granted civil immunity from lawsuits in exchange for fast pacing these experimental vaccines onto the market, private employers enjoy no such safe harbor. By making the injection a mandate, these businesses are creating a liability for themselves where none existed before.

While the current safety track record for these three shots are raising no alarms for the general public, there have been many adverse reactions reported to the CDC. And, in terms of the medical research realm, these shots are still a couple years away from full, non-emergency approval by the FDA. So, if an employer mandates their employees to take these injections and an injury results for just one of those employees which is connected to that shot, guess who the employee is going to be looking to for compensation for that injury? It won’t be Pfizer, Moderna or Johnson. It won’t even be the Federal government. It will be their employer. A definite proximate cause case has been established where, if it had not been for the employer’s demand, said injury would not have occurred.

A wise employer is going to want to weigh that risk against the risk of not mandating the experimental vaccinations. The question then is whether an employer would be liable if an employee shows up infected with COVID-19 and another employee gets sick? The precedent for that sort of third-party liability for an infectious disease is slim to nearly non-existent. Before anyone can get to that point, they must establish a common-law or statutory duty on the part of an employer to monitor and manage the health of their employees. Arguably one could rely on some of the new OSHA rules, but even there, it would be a very hard press indeed to go beyond screening for sick employees and sending home those who might be infected. Next, they would have to establish a failure require a vaccine led to the second person’s infection. That would require some sophisticated proof, since that second person may be exposed to the virus in a myriad of ways or places. Lastly, there would need to be substantial damages – so the second person could not recover just by having COVID-19 but they would need some significant and protracted impairment from the infection. That puts them in the clear minority of persons with COVID-19.

Regardless of one’s position on vaccination, an objective look at the potential liability for a company for requiring the experimental vaccinations compared to the much more tenuous liability from not requiring vaccinations makes it clear the riskier move is to require them. If one is required and an injury occurs as a result of that vaccine, then the employee merely needs to establish that they would not have gotten the vaccine except for the mandate and thus the injury proximately follows the demand. If an employee claims to have gotten sick because of a non-vaccinated co-worker, then they first have to establish that it was the employer’s duty to protect them. Then they have to prove that they did, in fact, get sick from exposure to the unvaccinated employee, then they have to prove that they would not gotten sick otherwise. Then they have to prove damages.

Let’s think this through for a minute. If you have two unvaccinated employees at work and one gets the other sick with COVID-19, then how well received will the injured employee’s argument going to be that their employer should have made them BOTH get vaccinated? The average juror would be wondering why the second employee did not simply just go get vaccinated on their own. Next scenario, If a vaccinated employee gets sick from an unvaccinated employee, how are they going to argue that the other person’s vaccine would have protected them (self-proving that their own vaccine did not protect)? The potential liability for an employer is slim indeed if they do not require the shots.

Businesses who are mandating COVID-19 vaccines for employees are inviting liability that simply is virtually non-existent if they simply stay out of the fray. Requiring employees to stay home if they are symptomatic or exposed does not create that liability, but once they require an employee to undergo an invasive (punctures the skin) procedure, they have created a causal link needed for a lawsuit.

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