Many employers offer flu shots and other inoculations to employees on company premises during work hours. Complications from flu shots are very rare but the Centers for Disease Control have noted that about one in 100,000 people who get a flu shot will develop Guillain-Barre syndrome, which is a debilitating nerve disorder. There are also rare cases of life threatening allergic reactions, and people over 65 are generally at greater risk due to the prevalence of other medical conditions, such as blood, heart, lung, kidney or liver disorders.
If an employee who receives a flu shot from his or her employer develops such a complication, does the employee have a right to workers’ compensation benefits? The answer may vary from state to state, and there are no recent cases in New Jersey. One case from Massachusetts, Carolyn R. Hicks’s Case, 62 Mass. App. Ct. 755 (Appeals Court of Massachusetts), January 18, 2005, provides guidance on the competing theories of compensability and denial in adverse reactions to flu shots.
The background of the case is important because the injured worker was a health care worker. Hicks worked as an electrocardiogram technician with the Boston Medical Center. On October 15, 1996, the Medical Center offered free influenza vaccinations to its employees as well as to the general public. Hicks received the flu shot during her lunch hour. The following day she began to feel like she had sand in her eyes. She was seen at Brigham and Women’s Hospital on October 18, 1996 and had a CT scan.
Four days later while dressing for work, Hicks noticed that her vision was beginning to fail. She saw an ophthalmologist and was admitted to the hospital for three days. She received large doses of prednisone and was diagnosed as having optic neuritis. Her vision improved somewhat but when the prednisone was reduced, her vision further worsened with the result that she was declared legally blind. Her ophthalmologist testified in the workers’ compensation case that the blindness was precipitated by an autoimmune reaction to the flu shot.
The case provides an excellent summary of the arguments on both sides of this issue. Professor Larson’s treatise on workers’ compensation receives particular attention, and the court notes that Larson has advocated that reactions to inoculations should be covered not only where prospective employment depends on the inoculation. Rather, Larson advocates a mutual benefit test to determine whether both parties benefit from the provision of the vaccine or inoculation.
In this case, the Massachusetts court considered the employee’s job duties and the nature of the Boston Medical Center’s work. It agreed with the ruling of the reviewing board “that the employee’s claim was compensable because, given her direct contact with high risk patients, the employee’s receipt of a flu shot was an incident of her employment, and the provision of flu shots was a ‘clear benefit’ to BMC ‘by virtue of the avoidance of contagion caused by hospital employees.'”
One of the cases cited in this case is an older New Jersey decision entitled Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949). In that case, the company provided a notice to employees that it would provide free inoculations to anyone who wished to be immunized against smallpox. There was concern about a potential epidemic of smallpox, and there were several cases in New York City.
Most employees, including petitioner, availed themselves of the vaccine. Petitioner suffered a reaction resulting in temporary and permanent partial disability.
The outcome of the case turned on the analysis of the “mutual benefit doctrine.” The court likened the provision of the vaccine to other benefits supplied by the employer, such as a cafeteria where food was served at a reduced price and an employee medical clinic. Clearly, under current law an injury on premises in a cafeteria would be compensable, so this analogy is an important one.
The court wrestled with the fact that the vaccination was optional. It observed that this was a troublesome issue because the employer did not direct employees to receive the vaccination. It held that it would not be reasonable to conclude that the vaccination program was exclusively in the interests of the employees alone. It believed that the vaccination program was designed in part to “further a sound employer-employee relationship and safeguard the employer against the serious effects of a case of smallpox amongst its employees.”
The Saintsing case has not been cited since 1976, which predates the 1979 amendments. In N.J.S.A. 34:15-7, the Legislature adopted a test for social activities that distinguishes between those that essentially promote the health and morale of employees (not compensable) and those that promote more than these goals (compensable). It is very difficult to know how courts would deal with this scenario today, but this writer believes that the mutual benefit doctrine survives in New Jersey, even if the statute does not specifically embrace it. Certainly, the setting becomes important, as health care workers and safety workers have a stronger argument for compensability.