Workers' Compensation: The Countermeasures Injury Compensation Program (CICP)

The Federal Government has a program to compensate those individuals who have suffered adverse reactions to the COVID-19 (SAR-CoV2) vaccines. The program is the Countermeasures Injury Compensation Program (CICP) established under the Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. §§ 247d-6d, 247d-6e.

The two COVID-19 vaccines approved under the US Food and Drug Administration (FDA) Emergency Use Authorization (EAU) are the Pfizer-BioNTech and Moderna.

While some workers’ compensation programs offer for those employees who sustain adverse reactions to vaccinations that arise out of and are in the course of the employment, the Federal program is a program of last resort and is far more expansive in its eligibility for benefits.

“Vaccinations afforded to employees which provide benefit to the employer against possible disastrous business consequences have been considered to be a mutual benefit. Therefore any disease arising from such vaccination has been deemed compensable. When an employee suffered disability after he received a smallpox vaccination administered free of charge by the employer who urged but did not direct the vaccination to guard against a threatened epidemic, the employee was considered to have sustained an accident “arising out of and in the course of the employment.” The vaccination was furnished at the employer's premises and was considered to be a risk reasonably incident to the employment. Saintsing v. Steinbach Co., 1 N.J.Super. 259, 64 A.2d 99 (App.Div.1949)." Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 10.19 (Thomson-Reuters 2020).

The PREP Act requires claims to be filed within one year from the date the vaccine was administered or used. The time frame may be amended if a new administrative table is issued.

Covered countermeasures are identified by the Secretary of the Department of Health and

Human Services (HHS) in declarations published under the PREP Act. Declarations have been issued for medical countermeasures against the following:

COVID-19
Marburg
Ebola
Nerve Agents and Certain Insecticides (Organophophorus and/or Carbamate)
Zika
Pandemic Influenza
Anthrax
Acute Radiation Syndrome
Botulinum Toxin
Smallpox

Both serious physical injuries and death claims are covered.

Benefits available under the PREP Act are:

Medical Expenses
Lost Employment Income
Benefits to the Estate
Survivor Benefits

Attorneys’ fees and costs are not paid by the program. Attorneys may represent eligible parties on an hourly or contingent fee basis.

Those who may be eligible to request benefits:

Injured countermeasures recipient
Representative of an injured countermeasure recipient
Administrator of the Estate of a deceased injured countermeasures recipient
Survivor of a deceased injured countermeasure recipient

A petition must be filed to initiate a claim for benefits. Claims are resolved through an administrative process. The claim resolution process requires that certain criteria be satisfied. A one-step administrative appeals process is available, but there is no judicial appeals process. The program is funded by Federal funds appropriated for this purpose.

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