Government : ‘Essential worker’ claiming vaccine side effects now seeks workers’ comp

A Cedar Rapids city employee is seeking workers' compensation benefits for injuries he attributes to the city's repeated promotion of the COVID-19 vaccine.

State and court records indicate that in April 2021, the City of Cedar Rapids began hosting vaccine clinics and sending out emails and newsletters encouraging, but not requiring, city employees to get the vaccine.

One such newsletter stated, "It takes everyone. We all need to step up to beat COVID-19. We ask you to join us in protecting your community by getting vaccinated."

A subsequent email stated, "THE CITY OF CEDAR RAPIDS ENCOURAGES YOU TO GET VACCINATED!"

Larry Driscoll, then a 51-year-old manager for the city's public works department, decided to get the Johnson & Johnson vaccine against COVID-19.

"I felt that it was the proper things to do since we're all essential workers," Driscoll said later in a deposition. "I just felt that it was a good option for me to lead the department to just ensure that my guys didn't get sick from me."

After suffering from side effects allegedly caused by the vaccine - including fatigue, facial drooping, loss of balance, and weakness or numbness throughout his body - Driscoll filed a workers' compensation claim, arguing his issues stemmed from his work for the city.

The city didn't dispute Driscoll's injuries or his account of its efforts to get city workers vaccinated, but it did argue that the vaccine and Driscoll's resulting health issues didn't arise from his employment with the city.

In January, Workers' Compensation Commissioner Joseph Cortese II reviewed the matter and ruled that while the city had clearly encouraged workers to get vaccinated, it did not require workers to do so, and he denied Driscoll's application for benefits.

Cortese noted that the city offered workers no financial incentives for getting vaccinated and did not penalize those who opted to refrain from being vaccinated. Instead, Cortese found, the city pursued a policy that was generally in the best interests of the workers and the community.

"If an employer strongly urged its employees to eat healthy and consume green vegetables, it would be seem strange to conclude that an employee who choked on some broccoli at home would have sustained an injury that arose out of his employment," Cortese stated in his ruling.

Driscoll is now appealing that decision by taking the case to Polk County District Court, where he's seeking judicial review of the matter. In court filings, Driscoll's attorneys note that their client scheduled his vaccination appointment using a work computer, during work hours, through a city-provided link. In addition, they say, city employees were told they could use up to two hours of pay under the city's "healthy workplace leave policy" to get the vaccine during work hours.

By Clark Kauffman

They also argue the case should be treated in the same manner as a college professor who died of a heart attack during an intramural softball game. In that case, benefits were awarded on the basis of the game being staged to further the school's goal of improved relations between faculty and students.

Driscoll's situation, his lawyers have told the court, "is analogous to recreational or social activities, where injuries are compensable when an employee engages in an activity that provides a substantial benefit to the employer beyond the intangible value of improvement in employee health and morale."

Oral arguments in the case are scheduled for May 17.