Wisconsin is currently facing a massive spike in coronavirus cases. The state continues to break daily records of confirmed cases. The death toll reached more than 1,600 people this week and hospitalizations have more than tripled in the last month.
In the meantime, there are a number of COVID-19 vaccine trials taking place around the world, including here in Wisconsin. But as the vaccine is fast-tracked, questions about liability if something goes wrong after someone takes the vaccine have come into focus.
The Countermeasures Injury Compensation Program has been designated to handle any issues with a COVID-19 vaccine under the Public Readiness and Emergency Preparedness (PREP) Act. The program is run by an agency under the U.S. Department of Health and Human Services.
Jon Groth, a Milwaukee based attorney with Groth Law firm, explains that the PREP Act was designed to limit legal liability in matters relating to matters of public importance. In this case, fighting against COVID-19.
“The Public Readiness and Emergency Preparedness Act, that says that if you’re injured, really, there’s a lot more immunity for drug manufacturers,” says Groth.
This is meant to make drug manufacturers feel more comfortable as they rapidly try to develop a COVID-19 vaccine. Another issue with trying to get compensation through the Countermeasures Injury Compensation Program is the cost of going to court.
“With the Countermeasures Injury Compensation Program, because that does not pay for experts, for costs, for getting medical records, it doesn’t pay for an attorney — you’re gonna have a hard time because you’re going to pay out of pocket,” says Groth.
Instead, patient advocates say compensation for vaccine injury should go through the Vaccine Injury Compensation Program, also known as “vaccine court.” This court does pay for the help of an attorney but would require that a COVID-19 vaccine be designated a routine vaccine distributed in the U.S.
A legal question that comes after the vaccine is created and widely distributed is what happens if you decide not to take it. Can you be fired from your job? Groth says you could be.
“In Wisconsin, there’s two exemptions you can claim for having vaccines: a religious exemption and a philosophical exemption,” he notes. “Just the basic tenets of employment law in Wisconsin, we’re an at-will state, so an employer can fire you for any reason just as long as it is not a bad reason.”
That means someone fired for not getting a future COVID-19 vaccine would have to prove they were being wrongfully discriminated against.
Groth says in the end, these programs are trying to help people, just like the vaccine is, and that these programs can protect patients when utilized.