How Restaurant Owners and Managers Can Reduce Workers’ Comp Liability Around the COVID-19 Vaccine

As the owner of my own company, a lot of work, research, and tension has accompanied our reopening plans. While our team is extremely excited about seeing each other in person, as a business owner, it‘s my responsibility to ensure we’re being safe, following appropriate CDC guidelines, and making the best decisions to protect our employees. A survey conducted by Envoy found that 66 percent of employees are concerned about their health and safety as it relates to returning to in-person work. Further, the Rockefeller Foundation found that 44 percent of 1,339 U.S. employers surveyed said they were planning on requiring employees to get vaccinated before they could return to a physical workplace. This is unchartered territory for all of us, and vaccines introduce a new layer of potential risk. 

As restaurants reopen, this new set of risks could have a significant impact on this community, which is returning to in-person work, often with less guidance and support than larger businesses. So as a restaurant owner or food service manager, how can you best minimize workers comp liability to allow summer 2021 to be the successful reopening of the economy that we are all ready for?  

With the relief and excitement that comes with reopening a restaurant, it’s critical that owners make well informed health and safety decisions to best protect themselves and their employees.

According to legal experts, if an employee is trying to make a vaccine-related workers’ comp insurance claim, the factors reported will typically include: whether the vaccination occurred at work, whether the employer is the one that paid for the vaccine, and if the employer did something to encourage the vaccination or benefitted from the vaccination in any way. Based on the above, owners and employers that choose to require a vaccine should understand how their approach could impact their workers’ comp insurance liability. 

First, we advise restaurant owners and managers to conduct research at the state and federal level to understand the rules that apply in their state. Then, identify the approach that best protects employees as part of your business’s reopening plan. For example, business owners and managers may face less risk if they offer voluntary vaccines onsite (outside working hours) through a third-party provider, rather than encouraging their employees to get it elsewhere. Practically speaking, arranging onsite vaccines may be difficult for those who operate small businesses – so it may be worth them considering partnering with other local businesses to offer this option to employees. 

Further, if a restaurant or food service company is providing the COVID-19 vaccine onsite they may qualify for liability immunity protections from the Public Readiness and Emergency Preparedness Act (PREP Act). The PREP Act grants liability immunity against any claim of loss caused by, relating to, or resulting from, the administration of the COVID-19 vaccine. PREP Act protections are fairly broad because they apply to state and federal lawsuits against a covered person, but they don’t cover everything, so make sure you are carefully reviewing the guidelines. 

Many states also have individual guidelines as to what is covered under workers’ comp insurance for adverse reactions to voluntary vaccinations. In general, the good news from an employer perspective, is that claiming workers’ compensation bars all other claims. That means if a vaccine claim is made by an employee, even if the claim is ultimately deemed not worthy of compensation, the workers’ comp insurance will cover the costs for the employer. That’s an important benefit for restaurant or small business owners to keep in mind right there. Another benefit is that small businesses can actually claim a tax credit for days employees take off work to get the vaccine or recover from side-effects. 

For any restaurateurs who are unsure where to start, SHRM and employer.gov provide educational resources across a wide range of workers comp and COVID-19 related topics. 

With the relief and excitement that comes with reopening a restaurant, it’s critical that owners make well informed health and safety decisions to best protect themselves and their employees so they can continue to stay open and grow their business. Providing them with this important content on the vaccine implications for workers’ comp insurance is a good way to continue growing your relationship.