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Can I require my employees to get vaccinated?

On Behalf of | May 3, 2021 | Employment Litigation

It’s been a turbulent year for business owners. You may have contended with sudden drops in revenue, which put you on the brink of bankruptcy. You may have had to quickly shift your workforce to working from home, and figure out how to collaborate remotely. Perhaps the home office environment also led to cybersecurity threats to your company.

We’re now more than a year into this “new normal,” and there finally seems to be a light at the end of the tunnel. The widespread availability of vaccines has you thinking that you may be able to bring your staff back to the office.

But what if not everyone on your team wants to get vaccinated? Can you, as their employer, require it?

Understanding FDA approval

When a vaccine receives full approval by the U.S. Food and Drug Administration (FDA), it becomes easier for employers to require their employees to get the vaccine. The flu shot is a good example of this.

The Pfizer, Moderna and Johnson & Johnson vaccines have currently received emergency use authorization (EUA) from the FDA. The approval process for EUA is faster than full FDA approval – and enabled the vaccine makers to begin administering the vaccines quickly, which was necessary during a public health emergency.

However, with EUA-approved vaccines, the legality of an employer issuing a vaccine mandate is less clear. Some healthcare employers have required it in the U.S., but the language in the EUA statute is somewhat open to interpretation. It states that individuals must be informed of “the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”

There is some disagreement among legal experts on what employers can and can’t require with regards to an EUA-approved vaccine. The courts have yet to weigh in on the interpretation of this language.

Moving forward

The process for getting FDA approval for a vaccine is long, but many of the required steps – lab research, pre-clinical testing and three phases of human trials – have already been completed. This should help to expedite the FDA approval process. Dr. Anthony Fauci told reporters that he hopes to see all three vaccines receive full FDA approval very soon. When this happens, it should give employers greater confidence in the legality of making vaccination a requirement of employment.