As we approach the last few weeks of summer, the last thing we want to think about is cold weather and the upcoming flu season. Nevertheless, we’ll soon see a flurry of signs and advertisements promoting flu vaccinations – many of which may be found in our own workplace and employee benefit communications. However, a recent settlement may have employers closely examining their vaccination policies and further contemplating the potential exposures related to flu vaccination offerings in the workplace.
A former nurse’s aide from a Pennsylvania hospital received an $11.6 million government settlement to pay for future care after a flu vaccine paralyzed her. The employee received the vaccine in October 2010, and weeks later, she was diagnosed with Guillain-Barré Syndrome (GBS). GBS is a neuromuscular disease in which the immune system attacks the nervous system. In this case, the disease resulted in paralysis to the legs and partial paralysis to the upper body.
Reactions from flu vaccines range from up to 64% of vaccinated individuals experiencing soreness at the injection site, to rare occasions of anaphylaxis, which is a severe allergic reaction. While 3,000 to 6,000 people are diagnosed with GBS each year in the United States, only one or two cases per million may be attributed to the flu vaccine.
Mandated vs. Optional
While the hospital in the Pennsylvania case did not mandate the flu vaccine, to what would the employer be exposed if it had been mandatory? When the flu vaccine is mandated, the employer is responsible for all negative results as long as there is a causal relationship between the event and the injury. Causation is determined through medical evidence and when two opposing opinions exist, the case may go to a workers’ compensation hearing.
Exposure can be serious when it is ruled that there is causation related to the workplace incident and injury. In the case of the Pennsylvania nurse’s aide, had it been a claim for workers’ compensation found related to employment, the cost would have been in the millions. The injured worker would have received wage replacement benefits for life, as well as future medical care.
Typically, healthcare employers tend to mandate flu shots. However, even if vaccines are not mandated, but only offered, the employer still runs the risk of liability for a workers’ compensation claim. The employees’ rights to benefits may vary from state to state. Most jurisdictions are more likely to rule a claim compensable when the employer is involved in the process. For example, does the employer encourage flu shots for their employees? Do they pay for the vaccinations? Is the place of employment used to conduct the vaccinations? Is the employee at work when vaccinated? Is the employer receiving a mutual benefit? A previous Massachusetts ruling found in favor of an employee stating that the provision of flu shots was a “clear benefit” to the hospital “by virtue of the avoidance of contagion caused by hospital employees.”
As long as flu shots are optional, there will be disputes over whether they are furthering the interest of the employer. This issue is not unlike those that surround employer-sponsored social activities and their question of compensability in the event of an injury. The more an employer becomes involved with activities which seek to improve morale and ultimately provide a mutual benefit to the employee and the employer, the more the courts will lean towards deciding in favor of the injured worker.
RCM&D’s third party administrator, SISCO, works with employers to answer questions about claim coverage and uncover potential exposures regarding mandated and optional vaccinations.
Connect with Robert via LinkedIn or at email@example.com.
Seasonal Influenza Vaccine Safety: A Summary for Clinicians. Centers for Disease Control and Prevention.
“Are Complications From Flu Shots Provided By Employers Considered Compensable?” Legal Alert by Capehart Scatchard
What You Should Know for the 2014-2015 Influenza Season. Centers for Disease Control and Prevention.