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Analyzing Employer Mandated COVID-19 Liability

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Expert analysis from Reminger Law.

Post by Mick Proxmire, Esq.
(republished with permission)

Ohio employers who have mandated or contemplate mandating COVID-19 vaccinations as a requirement of employment should take notice of recent activity in the Ohio General Assembly. The enactment of either of the House Bills detailed below will have a significant impact on the liabilities of Ohio employers, either in civil tort or workers’ compensation.

Two House Bills were recently introduced in the 134th Ohio General Assembly. The bills seemingly contradict one another, as it relates to employer-mandated COVID-19 vaccinations and the applicability of the Ohio Workers’ Compensation System. The first bill, HB 401, introduced August 24, 2021, would amend section 4123.01 and enact section 4113.65 of the Revised Code to exempt an injury or disability caused by an employer-mandated COVID-19 vaccination from Ohio’s workers’ compensation system and allow the employee to sue the employer for damages.

When you have professional liability insurance coverage through Alta Pro Insurance, you’ll have the claims repair and legal defense experts of Reminger Law on your side. Want to have a resource like that in your practice? Here’s how to get it.

Ohio COVID-19 Legislation

In contrast, HB 435, introduced September 27, 2021, would amend section 4123.01 and enact sections 3792.05, 3792.06, 3792.07, 3792.08, 4123.87, and 4765.60 of the Revised Code to address COVID-19 vaccine requirements for employees and students. This bill would extend certain timelines for qualified civil immunity and expand immunity to include hearing aid dealers and hearing aid fitters; authorize emergency medical technicians to administer COVID-19 tests; expressly cover COVID-19 vaccine injuries under the workers’ compensation system; and repeal sections 3792.05, 3792.06, 3792.07, and 3792.08 of the Revised Code on June 30, 2023.

It is apparent that HB 435 intends for employer-mandated COVID-19 vaccination-related injuries to be covered under workers’ compensation, such that if an employee pursues separate benefits, awards, or recoveries, the Administrator or the Self-Insured employer may seek full recovery of benefits that it paid as well as interests, costs and fees related to the recovery of those benefits paid. Conversely, section (A) would provide a defense of the employer to benefit entitlement of an employee if the employee has already received benefits under two separate Acts.

The contradictions come in the following amendments or enactments. HB 401 would add section (C)(5) to R.C. 4123.01, under the definition of “injury”, to specifically exclude “Injury or disability caused by a COVID-19 vaccination if the employer required the employee to receive the vaccine as a condition of employment.” Conversely, HB 435 amends R.C. 4123.01 (C) defining “injury” to include an injury or disability caused by a COVID-19 vaccine if the employer required the employee to receive the vaccine as a condition of employment. HB 435 does not contain section (C)(5) that is being proposed in HB 401. Thus, under HB 401, a claimant’s injury or disability arising out of an employer required COVID-19 vaccination is expressly excluded from Ohio’s workers’ compensation system, while under HB 435, the injury or disability would fall within the Ohio workers’ compensation system, so long as the vaccination occurred in the course of and arising out of the injured worker’s employment.

Unfortunately, we are too early in this process to see which, if either, House Bill survives and is enacted. But, from a historical standpoint, the purpose of workers’ compensation has essentially been an exchange of, or relinquishing of respective rights, wherein injured workers can pursue benefits for injuries and the employers are able to maintain immunity from civil action arising from those injuries. It seems counterintuitive that the General Assembly, in HB 401, would now work to carve out a specific “injury” and again make a civil action viable for 4 years longer than the timeframe to assert a workers’ compensation injury.

Navigating the ins and outs of workers’ compensation can be confusing and trying at times. Should you have questions or issues related to the administration of your workers’ compensation claims please contact one of our Reminger Co., LPA offices and speak to an attorney in our Workers’ Compensation Practice Group

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

About the Author
Mick Proxmire joined Reminger Co., L.P.A with extensive experience in transportation and risk management. He represents trucking entities, senior living facilities, distribution companies, temporary agencies, construction companies among others. 

If you practice in Wisconsin, Texas, Minnesota, Ohio, Illinois, Indiana or Michigan, you can stay on top of ethics and risk management news by being a member of Alta Pro Lawyers RPG. You’ll get access to free webinars, the Pro Practice Playbook, Reminger ProLink, Ask the Risk Pro and more. Here’s how to join.

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