The Latest on the Ability of Employers to Mandate Vaccinations

by | Aug 3, 2021

Mandatory COVID-19 vaccination policies by private employers are here, and more are coming.  SFBBG advised in this Insights article on April 16, 2021 that guidance issued by the Equal Employment Opportunity Commission (“EEOC”) did not explicitly authorize employers to require vaccination, but it did state that employers could condition offers of employment and continued employment on an employee not posing “a direct threat to the health or safety of individuals in the workplace.”  We were a bit more direct when we advised that employers could indeed require vaccination, and read the tea leaves to caution that hesitant employees, or those otherwise refusing vaccinations against COVID-19, may confront a difficult choice:  get vaccinated or get out. 

Since the EEOC guidance was published, many employers have required their employees (and employees of other companies whose representatives come into direct contact with their workforce) to get vaccinated, unless the employee has a protected condition or sincerely held religious belief that prevents them from receiving the vaccine.  Those mandates have been met with some resistance and have been subject to pending lawsuits on various grounds, none of which have thus far succeeded, as courts throughout the United States have a long history of affirming mandatory immunizations for employees.

One of the challenges to the mandate that we have been asked about is whether an employer’s vaccine mandate would hold up when the vaccines are not yet fully approved by the Food & Drug Administration (“FDA”).  Each of the three available vaccines (Pfizer, Moderna, and Johnson + Johnson) has been introduced and issued to the public pursuant to the FDA’s Emergency Use Authorization (“EUA”) process.  The EUA process allows the FDA to facilitate the availability and use of a range of medical countermeasures, including vaccination, that are deemed necessary during public health emergencies, and includes different standards than those required for full FDA approval.

On July 26, 2021, shortly following the Department of Veteran Affairs’ announcement that it will require vaccination for over 100,000 of its frontline health care workers (the first federal agency to mandate vaccination), the Department of Justice’s Office of Legal Counsel (“OLC”) issued an opinion (bearing a July 6, 2021 date) making clear that the EUA status of the vaccination does not prohibit employers from mandating its use.  Because the OLC is the chief legal agency within the federal government and its opinions are both effectively binding within the Executive Branch and have historically carried significant weight in the courts, this is an important development for the sake of clarity and for private employers’ comfort in proceeding with plans to mandate vaccination against COVID-19. 

Vaccine mandates are mounting:  just since the DOJ opinion was published, several large employers, including Google, Facebook, Walmart, Netflix, and Walt Disney, have moved forward with formal policies requiring vaccination. More are sure to follow, meaning increasing numbers of employees are now facing the very real choice of either getting vaccinated or terminated. 

SFBBG offers reasoned and trusted counsel in navigating the ever- (and quickly) changing COVID-19 landscape. Although more is expected on the vaccination mandate front, the DOJ weighing in will help reduce some risk for employers who desire, but have been hesitant, to implement a vaccination mandate applicable to all employees.

 

If you have any questions regarding the subject matter, you may contact Adam Maxwell at (312) 648-2300 or send an e-mail to adam.maxwell@sfbbg.com.