Are Employers Able to Mandate Emergency Use Vaccines?

As the delta variant spreads, many employers are still struggling with the question of whether to encourage or mandate the COVID-19 vaccine. However, a great deal of these employers are struggling with the legal risks of mandating a vaccine that is still only under an emergency use authorization (EUA). Fortunately for these employers, recent developments should alleviate many of these fears.

The general consensus amongst the legal community has strongly trended in favor of an employer’s ability to require at-will employees to be vaccinated as a condition of employment. This is subject to the typical accommodations for religious and medical reasons. However, the EUA status of the vaccine does not appear to impact an employer’s ability to mandate a vaccine.

This is certainly a good thing for most employers whose attitudes appear to be quickly changing as many public employers are beginning to issue mandates, and efforts to encourage vaccinations have seen limited success. As many companies are now strongly considering mandating vaccinations, here’s what they need to know.

Dismissed Court Challenges

The current vaccines for COVID-19 are permitted for emergency use by the FDA even though they have not been permanently approved using its standard process. However, the FDA has stated that the vaccines meet rigorous and scientific standards for effectiveness and safety and that the vaccine’s benefits outweigh their risks.

Despite these statements, some workers have filed lawsuits in response to employer mandates due to the vaccine only being allowed for emergency use. One such case filed in a federal court in Texas was dismissed with the judge in the case describing the plaintiff’s claims as irrelevant and false. This demonstrates that in at least one federal case a dispute for wrongful termination for refusing a mandatory vaccination based solely upon the EUA status of the vaccines the argument was soundly rejected. 

The plaintiffs, in this case, have filed an appeal in the Fifth Circuit Court of Appeals, but the Pfizer vaccine is anticipated to receive full approval as soon as early September, which will render any EUA argument moot.

Guidance from the EEOC

The Equal Employment Opportunity Commission has issued employers guidance stating that typically they may require employees to acquire a COVID-19 vaccination without violating federal anti-discrimination legislation if they will physically enter a worksite.

The EEOC does require employers to consider both religious and medical objections and consider reasonable accommodations such as revised practices or remote work. 

According to the EEOC, the employer should consider whether the employee could still perform the job’s essential functions without posing a threat to the others in the workplace. The EEOC does state that it is beyond their jurisdiction to offer information on the legal aspects of the EUA status or the FDA’s approach to the vaccine, however.

Department of Justice (DOJ) Does Not Prohibit Mandatory Vaccines

On July 6th, the DOJ issued a statement concluding that the federal Food, Drug, and Cosmetic Act does not forbid entities, either public or private, from mandating a vaccine that is permitted under emergency use.

Takeaway

Based on the current stances of the courts, EEOC, and DOJ, it appears that employers can feel safe in issuing mandatory vaccination requirements despite the EUA status of the vaccines currently available.