As colleges and employers increasingly push for mandatory COVID-19 vaccinations, the question rises: Who’s on the hook for the rare, but inevitable bad side effects that go along with the shot?
Employers and institutions of higher education are both largely shielded against liability for vaccinations under a variety of state and federal laws. The Public Readiness and Emergency Preparedness or PREP Act covers both vaccine manufacturers and the organizations that administer it, making them immune to state and federal lawsuits except for willful misconduct.
Schools and employers have slightly different exposures if they try to mandate vaccinations. Employers can exclude workers who pose a “direct threat” to the health of other employees and COVID-19 meets that definition. But the Equal Opportunity Employment Commission says employees can refuse vaccination for medical or religious reasons. That leaves employers with the task of trying to find a reasonable accommodation for unvaccinated workers under the Americans with Disabilities Act.
If an employee gets vaccinated at his company’s urging and suffers side effects, workers compensation may or may not cover the injury, according to experts surveyed in a recent Society of Human Resource Management analysis. State laws vary, but in some circumstances an employer’s insurance might have to cover the side effects if the company was perceived as obtaining a benefit from requiring vaccinations, said Sonya Rosenberg, an attorney with Neal, Gerber & Eisenberg in Chicago.
That would be the extent of possible liability, however, since workers’ compensation laws shield employers against traditional tort liability for most work-related injuries. Both the vaccine and whoever administers it would be immune from liability under the PREP Act.
Colleges and universities can almost certainly mandate Covid-19 vaccinations as a condition of in-person attendance. The federal government hasn’t specifically stated a position on student mandates, but institutions of higher education have required other vaccines for years. A recent national study found that nearly 90% of higher education institutions required the measles, mumps and rubella vaccine and more than half required vaccination against meningitis. Unlike employers, colleges likely can exclude students from campus if they refuse the vaccine without running afoul of the ADA.
Vaccine opponents failed to obtain an injunction against the University of California’s flu vaccine mandate last year when a court cited the U.S. Supreme Court’s 1905 decision in Jacobsen v. Massachusetts. That landmark decision, cited frequently during the covid-19 pandemic, upheld the general police power of the states to order vaccinations to protect public health and safety. Courts have similarly upheld a growing number of state laws revoking religious and nonmedical exemptions from vaccination laws.
As with employers, colleges and universities would be immune from liability under the PREP Act if they administer the vaccine themselves. There are other types of liability to worry about, however. Attorneys at Fisher Phillips recently advised educators to be careful how they describe the need for every student to be vaccinated. If they play up the value of in-person learning too much, the lawyers say, that might hurt them in lawsuits by students seeking tuition refunds because schools switched to remote learning last year.
“An epidemiological-based justification that emphasizes the higher and more efficient rate of COVID-19 transmission among the typical age group for higher education students may be preferable to one that emphasizes the value of a student’s campus life experience,” Fisher & Phillips says.