Could An Employer Be Held Liable For Damages Resulting From An Employer-Mandated COVID-19 Vaccination?

Donald G. Drinko By Donald G. Drinko, Gary D. Baker Jr.

Except in very limited circumstances, employers are shielded from liability by statute for injuries workers sustain in the course and scope of their employment. See R.C. §4123.74. However, if passed, a recent House Bill would eliminate this “immunity” in cases where employees suffer damages from employer-mandated COVID-19 vaccines. What changes are proposed with this bill, and how would this impact employers in Ohio?

Introduced on August 24, 2021, House Bill 401 seeks to amend R.C. §4123.01 of the Ohio Revised Code, by altering the definition of “injury” covered by the Ohio workers’ compensation statutes. The Bill would create an exception for “injury or disability caused by a COVID-19 vaccination if the employer required the employee to receive the vaccine as a condition of employment.” Injuries or disabilities sustained in this manner would no longer be covered under Ohio workers’ compensation.

House Bill 401 would also enact a new provision, R.C. §4113.65, which would allow an employee to bring a claim against his or her employer for any damages they allege were caused by a COVID-19 vaccination if two criteria are met: (1) the employer must have required the employee to receive the vaccine; and (2) the employee must bring the claim within five years of receiving the vaccine. If these requirements are met, an employer could be liable for any potential damages sustained by the employee, notwithstanding the immunity normally provided by the Ohio workers’ compensation system.

It should be noted that this Bill was only recently introduced, and it remains unclear whether it will pass. However, it is important for employers to be aware of this potentially drastic change to an important legislative barrier to individual corporate liability as a result of injuries to employees, and the impact it could have on employer policies if passed. If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.