The Controversy Over Mandating COVID Vaccines for Workers
Can workers be required by employers to be vaccinated? Maybe.
Has the vaccine been approved by the FDA? Not yet. On December 11, 2020, the FDA issued an Emergency Use Authorization (“EUA”) for the use of the Pfizer-BioNTech COVID-19 Vaccine. On December 18, 2020, the FDA issued an EUA for the use of the Moderna COVID-19 Vaccine. And on February 27, 2021 the FDA issued an EUA for the use of the Janssen COVID-19 Vaccine.
The issuance of an EUA is different than an FDA approval (licensure) of a vaccine. It is not entirely clear whether employers can lawfully mandate a vaccine authorized only under an EUA.
But what if a vaccine is formally approved by the FDA? In this case, employers can very likely mandate COVID-19 vaccination, subject to certain limited exceptions. The U.S. Equal Employment Opportunity Commission’s “What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws” is a great first resource to learn more.
We aren’t the only ones erring on the side of caution. The Pennsylvania Department of Labor & Industry Office of Unemployment Compensation has issued vague guidance in the form of Labor Law Compliance & COVID-19 FAQs:
Q: “Can my employer require that I receive the COVID-19 vaccine?”
A: “Employees are encouraged to discuss any concerns over receiving a COVID-19 vaccine with their employers. If you are a member of a union, your collective bargaining agreement (union contract) may provide direction regarding your rights and requisite vaccinations.”
Q: “Can employers require employees to receive the COVID-19 vaccine?”
A: “Employees are encouraged to discuss any concerns over receiving a COVID-19 vaccine with their employers. Employers who employ union employees are encouraged to review the contract before requiring vaccinations.”
What is House Bill 262?
On February 25, 2021, the Pennsylvania House Labor and Industry Committee held a public hearing on proposed House Bill 262, the Right to Refuse Act. The proposed Right to Refuse Act is intended to “provid[e] for the right of an employee or prospective employee to refuse to participate in an invasive medical test or vaccination required by an employer.” This right to refuse would not be without exception. You can find the text of House Bill 262 here.
What does this mean for me?
Unfortunately, there is no one-size-fits-all answer to this question. If you are an employer with questions about mandating the vaccine or an employee with questions about being mandated to get vaccinated, please give us a call. Our attorneys would be happy to discuss with you.