Are pharmaceutical companies or businesses that mandate employee vaccinations liable if someone gets sick from adverse reactions to the COVID-19 vaccine? What if a business does not mandate vaccines and a third party contracts COVID from its employees? What recourse is available? Professor Dorit Reiss, leading vaccine law scholar, explains these and other questions on liability and remedies.
Dorit Reiss is Professor of Law and the James Edgar Hervey '50 Chair of Litigation at UC Hastings College of the Law.
Interview with Vaccine Law Expert – Prof. Dorit Reiss
Joel Cohen (Host): Hello, and welcome to Talks On Law. I'm Joel Cohen. Today we're talking about the COVID-19 vaccine and the laws around it. We're getting the update from Professor Dorit Reiss of UC Hastings. Professor, welcome to Talks On Law.
Dorit Reiss (Reiss): Thank you for having me again.
Host: There's concern out there we've seen in our audience even, people have reservations about whether they want to take the vaccine. Some are worried that they may get sick. Are there legal liabilities if someone takes a vaccine and gets sick?
Reiss: So it gets a little complex. First of all, if you took the vaccine and had a severe reaction, you cannot sue the manufacturers or the distributors or the providers, but there is a government program to which you can appeal for compensation.
The Countermeasure Injury Compensation Program (CICP)
Host: What is that application, or what is that authority that can be applied to?
Reiss: The Countermeasure Injury Compensation Program or CICP is a government program designed to compensate for certain kinds of responses to emergencies, including vaccines and other products. I will say that there are some problems with using that as your main tool. First, the bar for evidence is very high. You have to show that the vaccine or the other measure caused your harm with compelling scientific and medical evidence, and that's not always available early on. Second, there's only a year to apply for compensation. And third, if you have compensation from any other source, including for example health insurance, the program won't compensate you.
Host: A remedy of last resort?
Reiss: Yes, it is. Here’s, for example, where mandates intersect with compensation. If your employer demanded the vaccine as a workplace measure, and you got the vaccine you were injured, you can apply to workers compensation and get compensation through an easier system than the Countermeasure Injury Compensation Program. So in a sense, a mandate might give you an advantage if something happened on the compensation front.
Can companies be liable for requiring the vaccine?
Host: What about the other way around? Are companies at risk or exposing themselves to liability if they don't require vaccines from their employees?
Reiss: Possibly, though it's going to be a hard case. So we do have a jurisprudence of suing people for negligence for not preventing infectious disease. A company that doesn't require people who come in to get the vaccine — if it's a company that whether the real risk of COVID-19 — can find itself facing claims of negligence if someone contracts COVID-19 on their property. There's two things that would make such a suit hard. First, it's going to be often hard to trace your COVID-19 to a specific company, so it might be impossible to prove that it was contracted on this company's premises. And second, the argument would have to be that it's unreasonable for that company not to mandate the vaccine.
Host: You mentioned unreasonable, so you know i'm immediately thinking of the differences between let's say a sub shop or a long-term care facility that dealt with elderly and at-risk patients.
Reiss: That's a great example. If we have a long-term care facility, and let's say forty of their staff won't take the vaccine and they don't mandate, one of the staff members goes out into the community, brings in COVID and there's an outbreak that hurts the resident, it's going to be hard for the long-term care facility to argue that it was reasonable not to mandate. They're probably going to be in a bad place to defend such a case.
Host: But for most of us who are not working directly with at-risk communities, it's highly unlikely.
Reiss: It will be a hard case to win. Remember that hard cases have won in the courts before.