Whether you are an entrepreneur or aspiring to be one, the Financial Post would like to help by answering your questions on small business in this uncertain economy. Today, we answer a question from Bob: How concerned do small businesses need to be about lawsuits from COVID-19 vaccine injured employees who took the injections to keep their job?
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While the legal terrain surrounding some aspects of employee vaccinations is still being charted, experts say the law is on the employer’s side in the event a worker tries to sue after being injured from a COVID-19 jab.
The crux of the matter, according to employment lawyer Alan Riddell, is that a plaintiff would have to demonstrate that such an injury would be “reasonably foreseeable” based on current medical knowledge – and that’s simply not the case.
“That’s the missing link that would make it impossible to successfully sue the employer,” says Riddell, a partner at Ottawa-based Soloway Wright LLP who heads the firm’s labour and employment law practice.
All COVID-19 vaccines, including the latest jabs designed to protect against new Omicron variants, must undergo rigorous testing to prove they’re safe for humans before getting the green light from regulators like Health Canada, Riddell explains.
Therefore, a court would likely deem any injury or adverse reaction an employee suffers beyond the typical side effects – fever, body aches and so on – to be an aberration and not subject to liability on the part of the employer.
“That injury would inevitably fail the test of ‘reasonable foreseeability’ that any tort litigant must pass in order to be successful in his tort claim against his employer,” Riddell says.
“Until such time as someone comes up with medical evidence that there are reasonably significant – as opposed to ‘freakish’ risks of injury arising from taking all different available variations of the vaccination – no such action by any employee could ever be successful. I am reasonably certain that no one will ever be able to establish that there are significant risks arising from taking all different available variations of the vaccination.”
Employment lawyer Eytan Rip explains that it’s the drug manufacturer’s responsibility to ensure vaccines are safe for the general public.
As such, a court is highly unlikely to rule that any breach of that “duty of care” is the employer’s fault, he says.
“It would be very difficult to put that on the employer,” adds Rip, an associate at Ottawa-based Nelligan Law.
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If an employee has a medical condition that could potentially increase the chances of his or her suffering an adverse reaction to a vaccine, it’s up to the worker to disclose that information to the employer and seek an exemption from the jab, Riddell adds.
In the unlikely event an employee is injured from a COVID-19 inoculation, he or she could conceivably file a workers’ compensation claim if they have coverage, Rip notes.
But such a claim would not likely have any legal consequences for an employer, he said, and would come with few financial repercussions other than a possible rise in premiums.