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As vaccination efforts against COVID-19 improve across the country and conversations focus on returning to the workplace, questions have emerged as to whether employers can require its employees to get vaccinated prior to going back. Employers are placed in the position of balancing the general health, safety, and welfare of its employees with the rights provided under various federal statutes. To encourage as many employees as possible to get vaccinated, many employers, especially those in the retail and food service sectors, are offering incentives to those employees willing to get the jab of the needle. The CDC is doing its part to promote the vaccination program by issuing guidance allowing vaccinated people to gather indoors and travel.
Despite all of the efforts and programs, the question remains: can an employer legally mandate the COVID-19 vaccine for its employees? The short answer, under federal law, appears to be yes. In December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance concerning mandatory vaccinations and the issues that might arise under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and Title II of the Genetic Information Nondiscrimination Act (GINA). Under Question K.7, the EEOC sets forth that if a disability or sincerely held religious belief, practice, or observance prevents an employee from getting vaccinated and if there is no reasonable accommodation available, an employer can exclude the employee from the workplace. However, the employer cannot automatically terminate the employee.
Despite the guidance from the EEOC, employer-mandated vaccines can still be fraught with pitfalls for the employer. One of the areas that is still a bit murky is the fact that the COVID-19 vaccines were approved under the Federal Drug Administration’s (FDA) Emergency Use Authorization (EUA) rather than the general approval process. The EUA differs from the FDA approval process in that following a declaration by the Secretary of Health and Human Services that an EUA is appropriate, the FDA can “authorize unapproved medical products or unapproved uses of medical products to be used in an emergency to…prevent serious or life-threatening conditions…when certain criteria are met, including there are no adequate, approved, or available alternatives.” Some have argued that vaccine mandates may not be enforceable in light of 21 U.S.C. § 360bbb-3(e)(1)(ii)(III), which has, as one of the conditions of EUA, the requirements that “[a]ppropriate conditions designed to ensure that the individuals to whom the product is administered are informed of the option to accept or refuse administration of the product.” Given this language, employers who require employees to get vaccinated may be prevented from doing so. However, this uncertainty has not stopped employers, such as the Houston Methodist hospital system, from requiring its 26,000 employees to be vaccinated. Perhaps, the answer to the questions surrounding employer-mandated COVID vaccines resides with the courts. We’ll have to wait and see.