If an employee experiences adverse vaccine side effects after their company issues a mandatory vaccination, can they claim workers’ compensation? Two lawyers offer their insights.

Many employers are now considering mandatory vaccination policies to ensure compliance with their work health and safety obligations. 

With the advent of mandatory vaccinations, questions abound over an employer’s liability for a worker who suffers adverse effects arising out of a mandated vaccination. 

The introduction of a federal COVID-19 Vaccination Claims Scheme has assisted as it enables people to apply for compensation that will cover the costs (anything above $1000) of injuries arising from the COVID-19 vaccine (if certain pre-conditions are met). 

However, the matter is complicated as each state and territory administers different workers’ compensation schemes with their own tests to establish causation and injury.

Encouraged or mandated the vaccine?

At the outset, it’s important to appreciate the difference between an employer being seen to endorse the vaccine or encouraging workers to receive the vaccine, and an employer mandating vaccinations. 

In the former scenario, an employer may provide a voluntary vaccination program and make it clear that it is an entirely voluntary process that does not form part of a worker’s employment obligations. 

There is an argument that an employee who takes advantage of that process and then suffers adverse vaccine side effects will not be able to establish that their injury arose out of, or in the course of, their employment. 

However, a separate argument could be made that such a program may form some implied inducement or encouragement for employees to obtain a vaccination. This could be sufficient to establish a statutory liability for workers compensation. Much will turn on the individual circumstances in each matter. 

Conversely, if an employer were to introduce a mandatory vaccination program, having a vaccine would be linked to a worker’s employment obligations. Accordingly, the only issue for the employee, if they were to suffer from an adverse vaccine side effect, would be to establish that they have suffered a compensable injury directly linked to the vaccination.

 A causal connection between the vaccine injury and the worker’s employment is more easily established in circumstances where:

• An employer has mandated the vaccine
• An employer has encouraged its employees to obtain the vaccine
• Where the employee is subject to a NSW Government Public Health Order.

In these situations, it is likely that adverse vaccine side effects would be covered under the relevant workers compensation schemes. In NSW at least, if an adverse reaction is a ‘heart attack injury’ or ‘stroke injury’, the worker must demonstrate that the nature of their employment significantly contributed to the injury.

With this in mind, it is also important to be aware of the salient differences between the various workers’ compensation schemes across Australia, especially when it comes to what is considered a compensable injury. The table below provides a brief overview of the important sections to consider:

Broadly speaking, the various pieces of legislation are generally consistent in defining an injury as any physical or mental injury arising out of a worker’s employment. 

This would ordinarily include the aggravation, acceleration or recurrence of a pre-existing injury, as well as a disease. In the latter case, it is usually necessary for an employee to establish that their work was a substantial contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence of the disease.

Ultimately, each claim will need to take into account the employee’s individual circumstances.

However, it remains crucial for employees to provide medical evidence to establish that an injury has been sustained. 

Adverse vaccine side effects come in many forms, ranging from the mild (for example, feeling unwell or a sore arm) to the severe (for example, blood clots or respiratory issues). 

It is arguable that in order to establish a compensable injury arising out of an adverse reaction, an employee would need to demonstrate that they developed more serious side effects. Milder symptoms are unlikely to be considered compensable given their transient nature and limited impact on an employee’s capacity to work. 

However, more severe symptoms will need more than a simple temporal relationship with the vaccination to establish injury. 

As always, much will depend on the medical history of the individual and the physiological change that the vaccination might cause.

Adverse psychological reaction 

The possibility of an employee suffering psychological injuries related to a mandatory vaccination cannot be discounted.

Such injuries could arise out of a secondary response to an adverse reaction or even out of concerns over the vaccine’s efficacy or safety.

As with physical injuries, an employee will need to provide medical evidence to establish that an injury has been sustained.

Employers, however, have one additional tool for addressing such injuries: Section 11A(1) of the Workers Compensation Act 1987 (NSW) provides that no compensation is payable in respect of a psychological injury if that injury was wholly or predominantly caused by reasonable action taken, or proposed to be taken, on behalf of an employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal, or the provision of employee benefits. Various iterations of this provision are present in other workers’ compensation schemes across Australia. 

To rely on this provision as a defence to a workers’ compensation claim, an employer would also need to establish that its actions or proposed actions to mandate vaccinations were reasonable.

This could include engaging in a consulting process, providing opportunities for employees to provide feedback, or allowing for reasonable accommodations in cases of medical exemptions or refusal of vaccination. 

Recent FWC rulings that dealt with the introduction of mandatory vaccination policies highlight the importance of properly consulting employees before implementing major changes or new policies in the workplace. 

In short, if an employer seeks to implement a mandatory vaccination policy, the company should provide employees with all necessary information about the vaccine and the various impacts a mandate will have on employees who either refuse or cannot take the vaccine.  

Risks of not mandating the vaccine

While vaccination mandates (or even the encouragement of vaccination) could invite workers compensation claims in cases of adverse reactions, employers must also weigh this risk against the consequences of an employee who can establish that they contracted COVID-19 at work. 

While some workers who contract COVID-19 will be asymptomatic, others may suffer long-term effects or, in the worst case, death. The potential compensation arising from such cases is not insignificant. For more information on this, read HRM’s article about a NSW employer who was held liable for a COVID-19 death at work, and was ordered to pay more than $830,000. 

Given the potential liability, it is incumbent on employers to implement whatever safety protocols are feasible, whether that be a mandatory vaccination requirement or more traditional physical controls in the workplace such as QR code check ins and physical distancing.

Jenne Tzavaras is a Partner, and Tarana Singh is a Senior Associate, at HWL Ebsworth Lawyers

The information in this article is general in nature, and should not be taken as legal advice. Where necessary, please consult a legal expert for professional and tailored advice that addresses your company’s specific needs.

Is the possibility of having to pay workers’ compensation, and other COVID-19 related concerns, weighing on your mind? Check out AHRI’s COVID-19 resources hub for some helpful resources.