Elinor Smith

HELENA (UM Legislative News Service) -- A bill that earned broad approval in the Senate last month and is now in the House Business and Labor Committee would allow healthcare workers in the state who were injured or had serious complications from an employer-mandated vaccine to apply for workers’ compensation coverage.

Sen. Jeremy Trebas, R-Great Falls, is the sponsor of Senate Bill 369, which he says is only fair.

“It includes a serious adverse event experienced by an employee after receiving a vaccine mandated by an employer,” Trebas said. “And then it defines what ‘serious adverse event’ means, such as death or serious life-threatening illness hospitalization or prolongation of an existing hospitalization or persistent or significant incapacity or substantial disruption of the ability to conduct normal life functions.”

Right now, the bill would let workers negatively affected by mandated vaccines apply for workers’ compensation. But, the bill doesn’t guarantee that they’ll be covered. Employees would still need to prove that their injuries were actually caused by the vaccine to get the money.

Trebas proposed an amendment to the bill Wednesday that would put the responsibility of proof in the employer’s lap, not the employee’s. That basically means it would be presumed that the employee’s injuries came as a result of the vaccine. So, their employer would have to prove that their illness wasn’t caused by a mandated vaccine. 

Trebas said he proposed the amendment because employers are protected from legal action under workers’ compensation laws and vaccine manufacturers are protected from legal action under the federal PREP Act issued in 2020 to give vaccine administrators less liability when giving the COVID-19 vaccine.

So, he said if employees' workers' compensation applications are denied, they’re essentially stuck between a rock and a hard place; they can’t sue their employer and they can’t sue the vaccine manufacturer.

“This is kind of an extraordinary circumstance where a person is locked into this system and they really have no route for legal relief or payment for their injuries if their claim is denied. Which again, it's sometimes hard to prove these things. So it flips the burden of proof where the employer then has to prove that you didn't have an injury that came from these circumstances,” Trebas said. 

There were two opponents of the bill who said the proposed amendment went too far, and employers would have a hard time proving that an illness wasn’t caused by a vaccine. They said it would be easy to take advantage of the bill’s policy and Montana’s employers with the proposed amendment in place and they urged lawmakers to shoot the amendment down. 

Ethan Heverly represented the Montana State Fund and opposed the bill Wednesday on grounds that it could muddy some cases. 

Rep. and Committee Chair Ed Buttrey brought up his peanut allergy as a way to illustrate the issue. He asked Heverly if conditions like his could be looped into these cases if the proposed amendment should pass. 

“If I was at my employer and they mandate the vaccine and I get the vaccine and even that day I walk outside, somebody that's eating peanuts rubs against me. I likely will go into anaphylactic shock and will have a serious medical condition. The way I read this is that my employer then would have to basically -- the system would say that allergic reaction I'm having is because of the vaccine. Is that correct?” Buttrey said.

“Mr. Chairman, that is exactly correct, which is the concern,” Heverly said. 

The bill passed the Senate on a vote of 47-3 in March before moving to the House.The House Business and Labor Committee did not take immediate action on the bill.