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Many businesses are requiring employees to get a COVID-19 vaccination. Some are requiring customers to do the same.
One Utah lawmaker says that if businesses require vaccines, then they should also take on potential risks.
Sen. Kirk Cullimore, R-Sandy, is working on a proposal that would make businesses requiring vaccinations liable if an employee or even a customer suffers an adverse reaction.
“If a private business is going to mandate a medical procedure, then they should take on some form of liability,” Cullimore said.
The risk of serious side effects remains far smaller than the benefits of getting the vaccine. Fully vaccinated individuals experience significantly lower rates of severe illness, hospitalization and death.
He explains that anyone that claims they suffered from a vaccine will have to prove that in court, but he believes there should be a legal path should anyone want to make such a claim.
“If they’re going to get in the business of ensuring people do things for public health, then there should be some risk involved. They will have to decide if they want to go there or not,” Cullimore said.
He stresses that he is exploring the issue and gathering input to see whether the idea has enough support among his colleagues.
Vaccine mandates for employees are becoming more common, including at some Utah businesses.
A recent Gallup survey shows the number of employees reporting that their employer is requiring the COVID-19 vaccine doubled from July to August. Several colleges and universities across the state are also mandating the vaccine for students.
The proposal is a reversal from last year when Cullimore sponsored legislation to provide protections to Utah businesses from lawsuits related to an individual contracting COVID-19 on their property. They later expanded those protections to include some state government functions.
It’s not clear whether Cullimore’s new proposal is needed.
University of Utah law professor Jeff Schwartz explains worker’s compensation laws already hold a business liable for anything that happens to an employee within the scope of their job. That would include a mandatory vaccine.
“The general idea of worker’s comp is that you go to work in a factory and you lose a finger operating heavy machinery. Instead of having to find a lawyer and sue your employer, you can recover as the employee under worker’s compensation. It’s intended to cover stuff like this where an employee gets injured because of a requirement of their job, and vaccination, in this case, would seem to fit,” Schwartz said.
Schwartz says if Cullimore expanded that liability beyond what already exists, perhaps creating an additional layer of liability to protect workers, that could have a chilling effect on whether businesses require vaccinations.
“It’s conceivable an employee could recover both under worker’s comp and under tort liability. That would definitely increase the level of risk for employers and would cause some concern,” Schwartz said.
Cullimore suggests the idea could go further than the employer/employee relationship to encompass customers at a store or restaurant.
“If you think about a small town with just one grocery store. If they start mandating a medical procedure, you might begin to think it’s impractical to go elsewhere to get your groceries. Businesses need to begin thinking about the legal responsibilities when they do this,” Cullimore said.
Cullimore has opened a file for the legislation ahead of the 2022 session.