A workers’ compensation bill filed in the Illinois House on Friday provides that “no compensation shall be awarded to a claimant for death or disability arising out of an exposure to COVID-19 if the employee has refused a vaccination.”

Michael C. Duff

This is a very sticky wicket. If the state may compel an individual to receive a vaccine, despite Fourth Amendment considerations, then perhaps the provision is no big deal (even though it leaves a bad taste in my mouth).

But if the state cannot compel receipt of the vaccine, then I am at a loss to say how the provision does not amount to a prohibited conditioned benefit — one conditioned on foregoing a constitutional right (see Perry v. Sinderman, Sherbert v. Verner).

Indeed, I think workers’ compensation benefits implicate this principle even more strongly than the cases I cited, which essentially stood for the principle that, even if the creation of a right by the government (such as, say, a welfare benefit) is completely discretionary, the benefit may not be freighted with unconstitutional conditions: “You get this benefit only if you agree never to belong to any faith other than Christianity.”

But in the case of workers’ compensation, the quid pro quo for a tort right, I resist the notion that the “benefit” received is completely discretionary. It is not a welfare benefit; it is a substitute for a historically conferred tort remedy of ancient lineage. So the state can take that benefit from me unless I assent to an unconstitutional invasion of my body?

As I say, if a mandatory vaccination is not an unconstitutional invasion of my body, then my concern fades into the mist. In any event, it is a very unsavory way for the state to sneak into the law a vaccination mandate. If it is to be done, do it in the open.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.