Citation Numbers: 88 Op. Att'y Gen. 120
Judges: J. JOSEPH CURRAN, JR.
Filed Date: 8/29/2003
Status: Precedential
Modified Date: 7/5/2016
Dear Robert R. Bass, M.D., Executive Director Maryland Institute for Emergency
A recent federal initiative has encouraged public safety personnel, such as law enforcement officers, firefighters, and emergency medical services personnel, to undergo voluntary smallpox vaccination as a precaution against contracting that disease when responding to a bioterrorist incident. As part of that initiative, Congress addressed compensation of individuals who may suffer adverse effects from smallpox vaccination in two pieces of legislation. One law, which was enacted as part of the Homeland Security Act of 2002, is designed to protect those who carry out the smallpox vaccination program, by shifting tort liability to the federal government and limiting that liability to fault-based claims under the Federal Tort Claims Act. The other law, known as the Smallpox Emergency Personnel Protection Act of 2003 ("SEPPA"), creates a new no-fault federal remedy for those who are voluntarily vaccinated as part of the federal initiative or are infected by contact with a person who received such a vaccination.
You have asked for our opinion on the availability of compensation for a Maryland public safety worker who has an adverse reaction to his or her own vaccination or to the vaccination of a co-worker. Your request requires an assessment of the recent federal legislation and of the Maryland Workers' Compensation Act.
For the reasons set forth in this opinion, we conclude:
(1) Public safety personnel who are voluntarily vaccinated as part of the federal initiative and who suffer adverse reactions to their vaccinations will be eligible for benefits under SEPPA, provided they meet the other requirements of that statute. Benefits received under SEPPA are not based on fault, but will be reduced by the amount of any benefits received under the Maryland Workers' Compensation Act. To the extent that these personnel also have claims against entities involved in the manufacture, distribution, or administration of the vaccine, they will be limited to asserting fault-based claims against the federal government under the Homeland Security Act of 2002, and any benefits will be offset by any compensation received under SEPPA.
(2) The two federal statutes also specifically provide for compensation of an individual who is infected and suffers an injury from contact with another individual vaccinated under the federal initiative. Thus, a Maryland public safety worker who is injured as a result of the vaccination of a co-worker will be eligible for compensation under federal law. Again, benefits under federal law will be offset to the extent the individual receives compensation under the State workers' compensation law.
(3) It is likely that the Workers' Compensation Commission or a reviewing court would hold that adverse reactions or complications experienced by a public safety worker arising from voluntary vaccination of the public safety worker or of a public safety coworker vaccinated as part of the federal program would qualify as an accidental injury or as an occupational disease under the Maryland Workers' Compensation Act.
According to the Centers for Disease Control and Prevention ("CDC"), smallpox is caused by the variola virus that emerged in human populations thousands of years ago. The most common form is known as "variola major," which results in an extensive rash and high fever. That form of the disease has an overall fatality rate of about 30 per cent, although some subtypes of the virus are more lethal. See CDC Smallpox Fact Sheet — Smallpox Overview (December 9, 2002).1
A successful worldwide vaccination program has resulted in eradication of the disease. According to the CDC, the last case of smallpox in the United States was in 1949 and the last naturally occurring case in the world was in Somalia in 1977. Routine vaccination of the general public against smallpox was halted in the United States as unnecessary. However, there is now concern that the variola virus might be used as an agent of bioterrorism. Accordingly, the federal and state governments are taking precautions to deal with a smallpox outbreak, including vaccination of key personnel.
B. Smallpox Vaccination Program
On December 13, 2002, the President of the United States announced that, in light of the threat of bioterrorism, smallpox vaccine would be made available on a voluntary basis to medical professionals and emergency personnel and response teams that would be the first on the scene in a smallpox emergency.2 To implement that decision, the Secretary of Health and Human Services issued a declaration on January 24, 2003, pursuant to the recently enacted Homeland Security Act of 2002, that certain "countermeasures" should be taken for the prevention or treatment of smallpox, including voluntary smallpox vaccination. The declaration targets certain categories of individuals for the program, including "[p]ublic safety personnel, including, but not limited to, law enforcement officers, firefighters, security, and emergency medical personnel who may be called upon to assist smallpox response teams. . . ."
The smallpox vaccine currently available is a live-virus vaccine made from a virus related to smallpox. A small number of those individuals who are vaccinated against smallpox will experience adverse reactions, which can be serious or life threatening. In addition, the vaccine virus may spread to an individual who has not been vaccinated from an individual who has been vaccinated. CDC Smallpox Fact Sheet — Vaccine Overview (March 31, 2003).4
A. The Smallpox Emergency Personnel Protection Act of 2003
The Smallpox Emergency Personnel Protection Act of 2003 ("SEPPA"), Pub.L.
To qualify for SEPPA coverage, a public safety worker must be a participant in a smallpox emergency response plan approved by the Secretary of Health and Human Services and must undergo vaccination as part of that plan. In particular, a public safety worker who suffers injury as a result of a smallpox vaccination must fit the statutory definition of "eligible individual," which includes an individual:
(A) who is a health care worker, law enforcement officer, firefighter, security personnel, emergency medical personnel, other public safety personnel, or support personnel for such occupational specialties;
(B) who is or will be functioning in a role identified in a State, local, or Department of Health and Human Services smallpox emergency response plan . . . approved by the Secretary [of Health and Human Services];
(C) who has volunteered and been selected to be a member of a smallpox emergency response plan described in subparagraph (B) prior to the time at which the Secretary publicly announces that an active case of smallpox has been identified either within or outside of the United States; and
(D) to whom a smallpox vaccine is administered pursuant to such approved plan during the effective period of the [declaration issued by the Secretary of Health and Human Services under the Homeland Security Act]. . . .
The statute defines "covered injury" as:
an injury, disability, illness, condition, or death (other than a minor injury such as minor scarring or minor local reaction) determined, pursuant to the procedures established under [SEPPA], to have been sustained by an individual as the direct result of [a smallpox vaccination or contact with a vaccinated person during the federal initiative].
Benefits under SEPPA are determined by the Secretary of Health and Human Services and are not subject to administrative or judicial review.
SEPPA specifies that it has no effect on compensation under any other federal or state law.
B. Homeland Security Act of 2002
Section 304 of the Homeland Security Act of 2002 established certain liability protections in connection with authorized "countermeasures" against smallpox. See Pub.L.
The Homeland Security Act provides liability protection for "covered persons" — defined as a manufacturer or distributor of a vaccine, a health care entity under whose auspices the vaccine is administered or decisions about the administration of the vaccine are made, health care professionals who administer the vaccine, State and local entities, and officials, agents, employees, and volunteers of those persons or entities.
The statute shifts liability to the federal government by designating a "covered person" as a federal employee with respect to liability arising out of an authorized "countermeasure" such as the smallpox vaccination program.
Recent amendments to the Homeland Security Act coordinate liability under the Act with benefits under SEPPA. To bring a claim under the Homeland Security Act, a claimant must first exhaust any remedies available under SEPPA.
The Maryland Workers' Compensation Act, codified at Annotated Code of Maryland, Labor Employment Article ("LE"), §
The Act provides benefits for "covered employees," which it defines in some detail in relation to various occupations. See LE §
While a claim under the Workers' Compensation Act is an employee's exclusive remedy against an employer for a work-related injury, the Act provides the employee with the option of also pursuing a claim against a third-party tortfeasor who may be liable for the injury. See LE §
2. Compensable events
The Workers' Compensation Act provides compensation for two types of events: (1) accidental personal injury and (2) occupational disease. LE §
An accidental personal injury is an accidental injury that "arises out of and in the course of employment." LE §
An occupational disease is a disease "contracted by a covered employee . . . as the result of and in the course of employment." LE §
3. Relationship to Federal Compensation Programs
The State workers' compensation law defers to federal compensation programs. As a general rule, an employee is not covered by the Workers' Compensation Act if the employee is eligible for compensation under a federal program, other than the Social Security Act, for accidental personal injury or occupational disease. LE §
B. Application to Injuries from Smallpox Vaccination
No reported Maryland cases discuss the application of the workers' compensation law to injuries arising from smallpox vaccinations. We understand that the Maryland Workers' Compensation Commission, which is charged with construing the Workers' Compensation Act, has not yet had occasion to consider the application of the Act to an injury resulting from a smallpox vaccination under the federal initiative.
There are several cases in other jurisdictions involving complications from smallpox inoculations that were administered in connection with the workplace before smallpox vaccinations ceased in 1972. To determine whether those complications arose out of and in the course of employment, the courts looked to whether the vaccination was of benefit to the employer — as opposed to the employee and the public generally — and whether the employer encouraged vaccination. Compare Saintsing v. Steinbach Co.,
The voluntary vaccination of public safety personnel to enable State and local government agencies to prepare for and respond to a bioterrorist incident clearly benefits the employer of those workers. If the vaccination is effective, the public safety personnel will be able to avoid contracting the disease and will be able to continue providing public safety services that the employer is charged with providing. The employer has the benefit of a protected workforce during a smallpox outbreak. Moreover, these vaccinations are being conducted with the encouragement and cooperation of the employing agencies.
The fact that the program is voluntary does not diminish the benefit to the employer of the individual's vaccination. See Montgomery County v. Wade,
A public safety worker who was voluntarily vaccinated as part of the federal program and who had an adverse reaction to the vaccination would suffer an injury that would not have occurred "but for" the employee's status as a public safety worker while he or she was engaged in an activity incident to that employment. If the employee contracted smallpox or a related disease from the inoculation, it would be attributable to the nature of the employment. Thus, in our view, it is likely that the Workers' Compensation Commission or a reviewing court would hold that such complications qualify either as an accidental injury or as an occupational disease under the Maryland Workers' Compensation Act. Authorities in other states have recently construed their respective workers' compensation laws to reach similar conclusions with respect to the smallpox vaccination program.10
C. Effect on Eligibility for Compensation Under SEPPA and HomelandSecurity Act
As noted above, under LE §
1. SEPPA
In our view, the Workers' Compensation Act does not eliminate workers' compensation benefits if the employee is eligible for benefits under SEPPA. SEPPA provides that, except as provided in SEPPA itself, it is not to be construed to "override or limit any rights an individual may have to seek compensation . . . under any other provision of Federal or State law."
Thus, in our view, a public safety worker's eligibility for benefits under SEPPA does not affect that worker's eligibility for workers' compensation benefits.
2. Homeland Security Act
The interplay between LE §
The CDC has issued guidance for interpreting this provision of the Homeland Security Act. That guidance states that "[
The Attorney General of New Hampshire has reached a similar conclusion. See Opinion of the New Hampshire Attorney General, Opinion No. 202812,
In our opinion, Maryland law leads to the same conclusion. For example, if a law enforcement officer who participated in the federal program suffered an adverse reaction to a vaccination, the officer would have no tort claim under Maryland law against the officer's employing agency. Accordingly, the officer would have no claim against the federal government under the Homeland Security Act. (Of course, the officer would likely be entitled to compensation under SEPPA and the State workers' compensation law). If the officer were vaccinated at a hospital that fit the definition of "covered person," and the particular circumstances supported a tort claim against the hospital, then the Homeland Security Act would convert the officer's claim against the hospital into a claim against the federal government.
(1) Public safety personnel who are voluntarily vaccinated as part of the federal initiative and who suffer adverse reactions to their vaccinations will be eligible for benefits under SEPPA if they satisfy the other requirements of that statute. Benefits received under SEPPA are not based on fault, but will be reduced by the amount of any benefits received under the Maryland Workers' Compensation Act. To the extent that these personnel have claims against entities involved in the manufacture, distribution, or administration of the vaccine, they will be limited to asserting fault-based claims against the federal government under the Homeland Security Act of 2002, and any benefits will be offset by any compensation received under SEPPA.
(2) The two federal statutes also specifically provide for compensation of an individual who is infected and suffers an injury from contact with another individual vaccinated under the federal initiative. Thus, a Maryland public safety worker who is injured as a result of the vaccination of a co-worker will be eligible for compensation under federal law. Again, benefits under federal law will be offset to the extent the individual receives compensation under the State workers' compensation law.
(3) It is likely that the Workers' Compensation Commission or a reviewing court would hold that adverse reactions or complications experienced by a public safety worker arising from voluntary vaccination of the public safety worker or of a public safety coworker vaccinated as part of the federal program would qualify as an accidental injury or as an occupational disease under the Maryland Workers' Compensation Act.
J. Joseph Curran, Jr. Attorney General
E. Fremont Magee Assistant Attorney General
Robert N. McDonald Chief Counsel Opinions and Advice
Payments for lost wages are generally to be at the rate of two-thirds of normal pay, with increased payments for individuals with dependents.
The death benefit payable to the individual's survivors is equal to the comparable benefit under the Public Safety Officers' Benefits Program — currently $262,000 — reduced by the amount of any payments for lost wages.
(1) In general. For purposes of this section, and subject to other provisions of this subsection, a covered person shall be deemed to be an employee of the Public Health Service with respect to liability arising out of administration of a covered countermeasure against smallpox to an individual during the effective period of a declaration by the Secretary under paragraph (2)(A).
In addition, agencies that administer workers' compensation programs in a number of states have indicated that an adverse reaction to a vaccination of public safety personnel under the national program will be covered by workers' compensation insurance. See Minnesota Department of Labor and Industry, Information about workers' compensation coverage for employees who receive smallpox vaccinations (2003), www.doli.state.mn.us/smallpox.html (workers' compensation law would apply to the extent that vaccinations are given to employees based on the nature of their employment); Vermont Department of Labor and Industry, Workers' Compensation Division, Frequently Asked Questions — Smallpox Vaccination Workers' Compensation (2003) www.state.vt.us/labind/wcomp/faqpox.htm (employee who suffers adverse reaction from a smallpox vaccination offered by employer is covered by workers' compensation law); Ohio Better Workers Compensation, Fact Sheet: Workers' Compensation Benefits for the Smallpox Vaccine (December 2002), www.ohiobwc.com/downloads/brochureware/factsheets/PoxFactsheet.pdf (indicating coverage for a serious or life-threatening reaction to smallpox vaccine); Kentucky Department of Workers' Claims, Bulletin: Workers' Compensation Coverage for Healthcare Workers Receiving Smallpox Vaccinations (January 24, 2003), labor.ky.gov/dwc/pdf-file-misc/bulletin1.pdf (vaccination of healthcare workers as encouraged in the Homeland Security Act benefits employer and, accordingly, workers' compensation coverage would apply); North Dakota Workers' Compensation, Press Release: ND Workers' Compensation will cover first responders who experience adverse reactions to smallpox vaccine during phase two of the national vaccination program (March 5, 2003) www.ndworkerscomp.com/about/gen_info/Press_Releases/SmallpoxVaccine.pdf (healthcare workers' and emergency responders' reactions to smallpox vaccine during phase two of the national program).
Natalia Makarova v. United States , 201 F.3d 110 ( 2000 )
Monette v. Manatee Memorial Hosp. , 579 So. 2d 195 ( 1991 )
Harris v. Board of Education , 375 Md. 21 ( 2003 )
Montgomery County v. Wade , 345 Md. 1 ( 1997 )
Means v. Baltimore County , 344 Md. 661 ( 1997 )
Livering v. Richardson's Restaurant , 374 Md. 566 ( 2003 )
Hines v. Baechtel , 137 Md. 513 ( 1921 )
Saintsing v. Steinbach Co. , 2 N.J. 304 ( 1949 )
Saintsing v. Steinbach Company , 1 N.J. Super. 259 ( 1949 )
Laird v. Nelms , 92 S. Ct. 1899 ( 1972 )