Precedents: From Swine Flu to Blood Drives, the Compensability of Employer-Sponsored Needle Injuries (in Light of COVID-19)

Editor’s note: this article was originally published in January 2018. In light of the COVID-19 pandemic, and particularly because the “curve” appears to have flattened and employees are returning to the workplace, we thought it would be of interest to our clients.

We Texans find ourselves at the peak of flu season. Employees are missing time from work because of their own illness or their need to care for a family member who is ill. Well established Texas law holds that an employee who becomes ill as a result of the flu or a cold is generally not considered to have suffered a compensable injury under the Workers’ Compensation Act. But what about employees whose illnesses flow from an employer-sponsored effort to prevent illness, such as an onsite flu shot? And as long as we are talking about needles, what about needle injuries of other kinds, when they occur in the workplace?

Any analysis of the compensability of employer sponsored needle injuries should begin with City of Austin v. Smith, 579 S.W.2d 84 (Tex. Civ. App.—Fort Worth 1979, no writ) – the swine flu case. The claimant in Smith was a municipal firefighter, who suffered an adverse reaction to a “swine flu inoculation.” The ingredients for the preventative drug had been provided by the federal government and were administered by the city through its agents and employees.

While receipt of the inoculation was voluntary and Smith was at liberty to refuse it, there was evidence offered in the case that the City desired that he receive it for its own welfare (because it afforded greater assurance that Smith would be available to perform the duties of his employment). The record also showed that Smith desired to receive the inoculation for his individual protection. Smith received the inoculation while on duty for the City.

Smith filed a workers’ compensation claim after the manifestation of his adverse reaction to the flu shot. The City disputed the compensability of the claim, arguing that his illness did not originate in a risk or hazard of his employment as distinguished from a danger to the public at large. A jury found the claim to be compensable.

The Fort Worth Court of Appeals affirmed. The court reasoned that

Prior to the occasion when Smith was inoculated his employer, City of Austin, established a city-wide priority program for the distribution of the swine flu vaccine, with a priority plan for inoculation of persons. The first priority group (after the aged and chronically ill) was a group of persons who, because of their occupations, would be critical to the community in the event of a swine flu epidemic. Included therein were the firemen of the City of Austin, one of whom was Smith.

It was the nature of Smith’s duties of employment which caused his job to be classified in the priority group mentioned. Had he not been in that group he would not have been authorized to have received the vaccine as early as October 19th, the date on which he did receive it. Smith received the shot while he was on duty, at a facility owned and operated by his employer, City of Austin. There is testimony from the Mayor of the City of Austin, Jeff Friedman. In substance a part of that to which he testified was:

There was no direct mandate saying you will have everybody line up, but it was made very clear that they were to be taken over in City vehicles and given time off from their functions, although they were still on emergency call; if something came up, they would have to leave the line. And I think the inference is pretty clear . . . from working in City government for six years . . . that when it is told, you have to do it and that it was pretty clear they wanted to have them . . . that the supervisors wanted them to have them (the inoculations).

Citing a national treatise, the court embraced the rule that an “injury through inoculation should be covered ‘if there is a combination of strong urging by the employer and some element of mutual benefit . . . .’” Larson, Workmen’s Compensation Law s 27.32 (1978), “Inoculations and employment health tests”.

Arguably then, absent a combination of strong urging by the employer and some element of mutual benefit, an inoculation injury will not be compensable under the Texas Act. This can occur when an employer sponsors or otherwise supports another type of needle use – an onsite blood drive. Such a claim was discussed in Texas Division of Workers’ Compensation Appeals Panel Decision No. 93212, Decided April 26, 1993, [1993 WL 141812 (Tex.Work.Comp.Com.)].

In AP Decision No. 93212, the claimant alleged that she sustained a compensable injury during the activity of donating blood on the employer’s premises while participating in an employer-supported blood drive. The manager of employee relations for the employer testified that the employer’s support was for the convenience of the employees and as a service to the community and also in order for the company to be seen as a good corporate citizen. Employees were not required to give blood and did not get any special treatment. Only 10 to 15% of the employees participated.

The manager also testified that the employer sponsors or makes available such other things as Toastmasters and Girl Scout activities, “any number of those types of activities to help out the employees personally.” He also indicated on cross-examination that the company generally desired to be seen as doing beneficial things, be a pillar of the community and that, in general, corporate image is important in advertising and business. He indicated that the employer’s business was in natural gas and the transportation of it to their customers who were utilities on the east coast. The employer does not have individuals as customers.

The appeals panel reversed the hearing officer’s decision that the claim was compensable, and rendered a decision that the injury was not compensable. The appeals panel wrote:

While the manager of employee relations acknowledged that the employer had an interest in being a good corporate citizen and benefactor to the community, it is clear this case did not involve a situation of good will toward a customer or an emergency type incident as in Thomas, supra. Indeed, the evidence shows that the employer’s customers were utilities on the East coast and not in the area where the blood drive occurred. We view the situation here as most directly involving a “public service activity” as discussed in Larson, The Law of Workmen’s Compensation, Volume 1A, 1992, § 27.34, page 5-418. Larson states that “acts that are nothing more than the discharge of a person’s duties as good citizens or members of the community are not within the course of employment, even if they take place on the employment premises and may have been requested by the employer.” Cited, among other cases, by Larson on this issue is a Nebraska case (Mauser v. Douglas & Lomason Co., 192 Neb. 421, 222 N.W.2d 119 (1974)) involving an employee donating blood to the Red Cross, which in Larson’s summary involved a claimant, a punch press operator, for an employer who posted a notice stating that those employees who wished to donate blood would be excused for an hour of work but still would be paid, who was injured as a result of complications arising out of his donation of blood. Larson indicates the court denied benefits holding that participation in the program was a civic duty and that the employer gained no benefit because of the employee’s participation and had no control over the operation. A later case cited by Larson in this area, Belnap v. Boeing Co., 64 Wash. App. 212, 823 P2d 528 (1992), involved an employee fatally injured in returning to the job site from jury duty (employer paid full salary while the employee performed jury duty), where the court affirmed the denial of benefits notwithstanding the possibility that the employer’s corporate image was enhanced as a result of its leave-with-pay policy.

We conclude that the evidence in this case fails to meet the requirements of the definition of course and scope under Article 8308-1.03(12) that the claimant’s activity on June 18th constituted her being engaged in or about the furtherance of the affairs or business of the employer. Her activity falls more directly in line with the legal authority that indicates a denial of benefits when an injury is sustained while engaged in public service activities. We believe such analysis applies in this case. Not only do we conclude that any tangible benefits to the employer from the claimant’s activity is much too attenuated under the circumstances present, there is evidence in the claimant’s own testimony that she was acting on her own, as she had on at least 18 previous occasion, in the nature of Good Samaritanship. The evidence clearly indicates that she did not act to assist any customer or business associate or to enhance any business interest of the employer. Therefore, we reverse the hearing officer’s decision that the claimant’s activities on June 18th were in furtherance of the employer’s business or affairs and that she therefore sustained a compensable injury. We render a new decision that the claimant did not sustain a compensable injury while in the course and scope of her employment. Accordingly, no benefits under the 1989 Act are awarded.

For needle injuries occurring as the result of employer-sponsored events, the line between compensability seems to be governed by whether there exists a combination of strong urging by the employer and some element of benefit to both the employee and the employer.