Covid-19 Vaccine: Legal and security issues

Legal, security, and liability issues developing on a daily basis.

As COVID-19 the development of multiple Covid-19 vaccines is hurtling forward at unprecedented speed, so are the new legal, security and liability issues physicians and healthcare leaders must be aware of.

With the development of multiple COVID-19 vaccines and their expected rapid distribution, there is finally hope on the horizon for the physical and economic recovery of the United States. While we can see the light at the end of the tunnel, the road ahead is still long and perilous if not approached carefully. Experts predict that the logistical issues and complexities of vaccinating 300 million people including sub-zero storage requirements, supply chain shortages, an overburdened health care system and growing anti-vaxx, anti-science sentiment could mean that a meaningful vaccination program could take well over a year to complete and another year or more to effectively restore consumer confidence and full economic recovery.

Before any of it has even started, we are watching a variety of legal, security and liability issues develop on a daily basis, and we’ll continue to do so as they evolve in the year ahead.

Vaccine Security and Organized Crime

Law enforcement agencies including Interpol have issued explicit warnings about how organized crime has created multiple revenue streams using COVID-19. In addition to making sure the vaccine is stored correctly, healthcare facilities may need to protect their supplies from theft and hijacking with a level of physical security that goes significantly beyond what is the current medical industry standard, describing the vaccines value on the black market as ‘liquid gold’. Reports also state that related crimes, including the sale of counterfeit vaccines, disruption of the supply chain and the use of websites selling sham cures and medical supplies will be used for cybercrimes ranging from identity theft to malware that could compromise data security or even implant ransomware. This means compliance on the sourcing of any drugs and supplies, their custody, storage and distribution will be more important than ever, as will your IT security procedures, and insurance.

Employer Mandated Vaccinations

As vaccines become available healthcare workers and first responders are slated to be among the first in line for vaccination priority. While it appears that much of the medical community supports this idea, there are still a number of medical professionals all over the country including physicians, nurses and administrators who embrace, “alternative science”, some at the cost of their medical licenses, and who are opposed to being vaccinated in general or in some cases, simply to the idea of it being mandatory along with up to 35% of the rest of the country.

At this point, the consensus in the legal industry is that employers can mandate that employees be vaccinated as a condition of continued employment. OSHA has previously supported this idea as well, especially when it comes to the immunization of healthcare workers in the face of a pandemic, (as distinct from regular flu season) as the agency did with the Novel H1N1 virus in the past. There are two significant exceptions to this that that require “reasonable accommodation” if they do not create an “undue hardship” on the employer, including both actual religious objections (merely being “anti-vaxx” is not enough) and medical exemptions for legitimate ADA recognized health conditions, but given the potential for physical and economic harm and the effects of the virus to date, many feel this will continue to be enforceable by employers. Other legal expert have raised additional interesting questions as well, including issues like these in a recent National Law Review article and continuing education presentation:

  • What will you do if an immunocompromised employee cannot safely report to work if his co-workers are not vaccinated?
  • If some, but not all, employees are vaccinated, should you continue to require masks for unvaccinated employees? Alternatively, should masks be required for all employees, or perhaps no employees at all?
  • If employers require or strongly encourage vaccination and an employee suffers some adverse effect, can the employer be held liable for that injury up to and including a worker’s comp claim?
  • Does that liability increase if the employer selected the specific vaccine, making the choice of one available vaccine over another?

This list isn’t complete and some issues may be rendered moot by state law. Start thinking about these issues and managing the risks they present is now, before they pose threats to the health of your staff and the solvency of your practice.

About the Author

Ike Devji, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at www.ProAssetProtection.com.