Can employers require their employees to be vaccinated before returning to work? As is true of nearly all pandemic-related employment issues, the answer is in a state of flux. One of the factors that has likely made employers hesitant to mandate vaccination, and some individuals reluctant to get the shots, is that all three available vaccines have only received emergency use approval from the U.S. Food and Drug Administration (FDA). Statutory language in the Food, Drug and Cosmetic Act stating that individuals can refuse vaccines that have not received full approval has been used as the basis for holding back on mandating vaccinations for the time being in some industries. This has also provided justification for some employees to forego vaccination notwithstanding the fact that to date no court or agency has specifically endorsed this view.
Last week, Pfizer applied to the FDA for full approval of their vaccine while Moderna will likely follow suit. Even if the FDA gives these applications the highest priority, it will likely be months before final approval is given. Once that happens, it is an open question as to what impact full approval will have on either individuals’ willingness to get vaccinated or employers’ decisions to require proof of full vaccination before permitting employees back into the workplace.
Employers would be smart to start evaluating these issues sooner rather than later. For example, employers should immediately begin weighing return-to-work issues, such as (i) how important it is to bring employees back on site, (ii) whether they would be willing to make vaccination a condition of employment, and (iii) if remote work would be a viable accommodation for those who will not (as opposed to cannot) get vaccinated. Of course, these are just a few of the myriad of decisions that will confront employers as we enter the next phase of post-pandemic life.