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Fish: Attorney General Says Vaccination Side Effects Are Covered by Comp

By Mike Fish

Friday, January 8, 2021 | 0

At least, that was the opinion of the Alabama attorney general on Feb. 3, 2003. 

Mike Fish

Mike Fish

A few months prior to that, President Bush announced the national smallpox vaccination program, a smallpox vaccination plan that would, in phases, vaccinate a significant number of Americans against a potential release (via an act of terrorism) of smallpox into the population. 

Since it was anticipated that there would be side effects associated with the vaccinations, the director of the Alabama Department of Industrial Relations (now Department of Labor) asked the AG for an opinion on whether the side effects would be covered as compensable, per the Alabama Workers’ Compensation Act. 

In his opinion letter, the AG conceded that there were no Alabama cases on point. The AG looked at how the courts of other states had handled the issue and ultimately concluded that Alabama courts would find the side effects to be compensable.

Of course, the AG’s opinion is not law. It is just an opinion and, just like lawyers, everybody has one.

So how would an Alabama Circuit Court judge handle this issue? Certainly, everyone (sans anti-vaxxers) has an interest in being vaccinated. While employers see the benefit of an immune workforce that is less susceptible to sickness or death, they also see the same benefit with employees who are healthier due to nutritious eating, regular exercise, or simply taking their Flintstone vitamins every morning. 

Whether or not the side effects associated with the vaccine would be considered compensable will probably come down to whether an employer requires or encourages its employees to be vaccinated. On the flip side, employers will defend against such claims by trying to establish that the employee took the vaccine for reasons unrelated to work.

Courts will most likely focus on the type of employment, when and where the vaccine was administered, who paid for it, whether incentives or bonuses were offered as inducements and whether the employee would have taken the vaccine anyway.

As with the 2003 AG letter, this is just an opinion, and you know what they say about those.

Mike Fish is an attorney with Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from the firm's Alabama Workers' Comp Blawg.


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