Can Employers Require Employees To Get Vaccinated When The Vaccine Is Authorized For Emergency Use Only?

By: Michael Garafalo

As we pass the one-year mark of the COVID-19 pandemic,[1] the world is slowly recovering[2] from the first pandemic caused by coronavirus.[3]  Assumably, this recovery is, in part, thanks to the several vaccines that have been developed in record-breaking time.[4]  This means that employers are now more likely to start requiring employees who worked remotely during the height of the pandemic to return to the workplace.[5]

One unique aspect of the existing COVID-19 vaccines is that they are only available pursuant to the FDA’s Emergency Use Authorization, as opposed to the FDA’s “usual processes.”[6]  This fact has led to some reasonable concerns regarding the safety of the available vaccines.[7]  The implication here is that a vaccine approved only under the Emergency Use Authorization is not going to be as well understood with respect to potential complications when compared to a vaccine that is rolled-out under the FDA’s standard procedures.[8]  

Generally speaking, employers in the private sector are lawfully permitted to require employees to get vaccinations.[9]  This authority is not limitless, however, as employers do have to provide appropriate accommodations for employees whose medical needs or religious beliefs conflict with getting vaccinated.[10]  Yet, even in certain employment contexts, vaccination mandates will be upheld despite a burden on an employee’s religious beliefs or practices.[11] 

It still unclear whether employers can be held liable if an employee who had previously objected to getting vaccinated developed a life-threatening complication as a direct result of the vaccine.[12]  Litigation interpreting the FDA’s Emergency Use Authorization procedures are marginal.  It is possible that courts will follow some rule that would permit employers to require vaccinations while at the same time does not limit an employee’s right to refuse vaccination.[13]  Under such a rule, it is unlikely an employer could be held liable if an employee maintained a right to refuse vaccination.


[1] Bill Chappell, Coronavirus: COVID-19 Is Now Officially A Pandemic, WHO Says, NPR (Mar. 11, 2020), https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronavirus-covid-19-is-now-officially-a-pandemic-who-says (quoting WHO Director-General Tedros Adhanom Ghebreyesus).

[2]One Year After COVID-19 Declared a Pandemic: Consumers Turning the Corner?, CISION (Mar. 22, 2021), https://www.prnewswire.com/news-releases/one-year-after-covid-19-declared-a-pandemic-consumers-turning-the-corner-301251297.html (discussing various indicators of a global rebound after the COVID-19 pandemic).

[3] Chappell, supra note 1.   

[4] Zara Kaplan, Record-breaking Covid-19 Vaccines: How Were They Made So Quickly?, The Boar (Jan. 21, 2020), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employer-mandate-covid-vaccine-eua.aspx (“Before the coronavirus pandemic, the mumps vaccine licensed in 1967 held the record for the fastest ever vaccine development; from research to approval it took four years. The lightning-fast creation of multiple coronavirus (Covid-19) vaccines has therefore left a lot of us surprised, or even confused.”).

[5] It’s Time to Reimagine Where and How Work Will Get Done, PwC’s US Remote Work Survey (Jan. 12, 2021), https://www.pwc.com/us/en/library/covid-19/us-remote-work-survey.html (“Some firms might move more quickly as vaccines become more available or slow down if vaccinations occur slower than anticipated.”).

[6] Id.

[7] See Jeffrey Kluger, Too Many Americans Still Mistrust the COVID-19 Vaccines. Here’s Why, Time (Jan. 5, 2021), https://time.com/5925467/covid-19-vaccine-hesitancy/ (“’I think it’s reasonable to be skeptical about anything you put into your body, including vaccines,’ says Dr. Paul Offit, professor of pediatrics at the Children’s Hospital of Philadelphia and director of its Vaccine Education Center. Coming from Offit, a vocal proponent of universal vaccination and a particular boogeyman of the anti-vax camp, that carries particular weight. He goes further still, acknowledging that the speed with which the COVID-19 vaccines were developed can cause people special concern. ‘The average length of time it takes to make a vaccine is 15 to 20 years,’ he says. ‘This vaccine was made in a year.’”).

[8] See id.

[9]  Lisa Nagele-Piazza, Can Employers Mandate a Vaccine Authorized for Emergency Use?, SHRM (Mar. 23, 2021).

[10] Id.

[11] See Robinson v. Children’s Hosp. Boston, CV 14-10263-DJC, 2016 WL 1337255 at *10 (D. Mass. Apr. 5, 2016) (upholding an employer-hospital’s influenza vaccine mandate as applied to an employee seeking religious accommodations on the ground that to accommodate here would impose too great of a risk of influenza transmission within the hospital); see also Kiel v. Regents of Univ. of Cal., 2020 WL 7873525 (Cal. Super. Ct. Sept. 30, 2020) (denying plaintiff’s request for a preliminary injunction to enjoin the enforcement of a university’s new policy requiring students, faculty, and staff members to be vaccinated against influenza as prerequisite to use the university’s facilities, which, for teachers and staff, could conflict with their ability to attend work).

[12] See Jennifer M. Schwartzott & Theresa E. Rusnak, Can Private Sector Employers Require Employees to Be Vaccinated for Covid-19?, 93 N.Y. St. B.J. 36 (Feb. 4, 2021) (“As with most COVID-19-related legal predicaments, there are very few guiding judicial opinions to rely upon because we are still in the midst of the pandemic, and judges have not yet had an opportunity to weigh in.”).

[13] Id. (“While more guidance from both the FDA and the EEOC is expected, the EEOC’s reference to the EUA process in its guidance can be taken to mean it considered the FDA’s position and does not consider it determinative as to whether employers can mandate vaccinations. In other words, an individual’s right to refuse the vaccine does not necessarily prohibit employers from requiring its employees who are present in the workplace to be vaccinated.”).

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