In Illinois as of the date of this writing in August 2021, the issue falls into somewhat of a gray area. Scant legal precedent in the state exists to answer this question, but we will share some of our findings in this two-part post.
Impact of state statute?
Generally, for workers’ compensation to cover an injury or illness in Illinois, the harm must have arisen out of and in the course of employment. For coverage, a causal connection must exist between the injury or disease and the employment.
In 2004 – well before COVID-19 – the legislature added language about vaccines to the workers’ compensation and occupational disease laws. The amended law provides (Sec. 1(d)) that an injury, illness or death from the “administration of a vaccine … in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act.” (Emphasis added.) Also, the statute says that the new language was “declarative of existing law and is not a new enactment.”
Taking the law literally it would seem that since the government supports and pays for the COVID-19 vaccines for everyone eligible, vaccine administration is connected with a governmental program, so the required causal connection to the job for workers’ compensation coverage would be presumed under the statute.
However, it does not seem likely that the law is meant to apply to any administration of the vaccine such as one performed at the employee’s private medical provider of the worker’s own volition, even though the statutory language is very broad. This suggests that despite the statute, there must be some sort of connection to the employer for the provision to kick in that would deem a vaccine injury to arise out of and in the course of the job. Or perhaps the language “for all purposes under this Act” means that the administration of the vaccine must have a connection to employment for workers’ compensation to apply to a resulting injury.
When would the law apply?
The circumstances of the vaccination could be important to an analysis of whether the law applies to a particular vaccination. For example, did the employer require the vaccine as a condition of employment or was it just encouraged? Did the employer hire a medical service to give vaccinations on-site in the workplace? Off-site? Is there an employer benefit even if the vaccine is the employee’s choice such as a safer workplace or public-facing business? Did the employee receive pay during the time taken to get the shot?
It is likely that state courts and the Illinois Workers Compensation Commission (IWCC) will have to tackle these questions in the near future as these injuries begin to happen. This will provide more guidance to claimants and advocates.
In part 2 of this post, we will talk about potential injuries from the vaccine itself as well as other kinds of employee harm that could occur in relation to the vaccination.