Over the last year-plus, we have worked our way around the concept of mandatory COVID testing and vaccination for employers, without much guidance from federal or state authorities on the ramifications if such mandates were imposed.  Late last year, the EEOC provided some guidance to employers, stating that vaccinations were not medical examinations under the ADA, and that employers could require vaccination as long as employees could be accommodated for disability or religious purposes.

The biggest fear remaining for employers came from the requirements placed on those who administered the vaccine that was given an Emergency Use Authorization (“EUA”) by the Food and Drug Administration (“FDA”), which stated that those receiving the vaccine needed to be informed that “they have the option to accept or refuse the vaccine.”  One can see how employers might be hesitant to mandate a vaccine with language such as that.

At the request of the President, the Department of Justice (“DOJ”) conducted an analysis of the language included in the Food, Drug, and Cosmetic Act (“FDCA”) to determine if the language made mandatory vaccination illegal for employers.  The DOJ stated the following:

We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs. By its terms, the provision directs only that potential vaccine recipients be “informed” of certain information, including “the option to accept or refuse administration of the product.”

The DOJ went on to state that neither the statute nor the FDA fact sheet that must accompany vaccines authorized under an EUA restrict public or private entities from insisting upon vaccination.  “There is no indication, however, that Congress intended to regulate such entities except with respect to the circumstances of their administration of the product itself.”  The “option” provided to those receiving the vaccine, does not curtail employers from imposing consequences to those who refuse to be vaccinated, per the DOJ.

Much like the EEOC’s guidance on employers mandating vaccination, this DOJ opinion does not carry the weight of law – only the courts can come to the ultimate decision of what the FDCA language truly means.  At this point in time, only one lower federal court has ruled on whether employers can mandate employees be vaccinated against COVID-19 (and ruled in the employer’s favor).

Across the country, employers are ramping up for the return of their employees to daily office work, with many timing the return to coincide with students returning to school in September.  A number of employers, including the City of New York, have already declared that they will be requiring their employees to be vaccinated.  Consequently, there are a number of lawsuits that have already been filed over those employers’ decisions, and are waiting to be heard in the courts.

As always, you should consult with your attorney prior to making any decisions on whether you want to mandate vaccination.  If you need assistance in deciding whether you would like to impose mandatory vaccination on your employees, contact Wiley Reber Law, for legal advice that works.